Common use of Obligation to Issue Qualifying APM Securities Clause in Contracts

Obligation to Issue Qualifying APM Securities. During any APM Period, the Company shall, subject to the occurrence of a Market Disruption Event as described in Section 2.6(b) and subject to Section 2.5(b) and Section 2.6(c), issue one or more types of Qualifying APM Securities either in public offerings or private placements until the Company has raised an amount of Eligible Proceeds at least equal to the aggregate amount of accrued and unpaid deferred interest on the Debentures, including Additional Interest thereon, and applied such Eligible Proceeds on the next Interest Payment Date to the payment of deferred interest in accordance with Section 2.6, provided that: (i) the foregoing obligations shall not apply to the extent that (A) the number of shares of the Company’s Common Stock issued during such Deferral Period together with (B) the number of shares of the Company’s Common Stock issued or issuable upon the exercise of Qualifying Warrants previously issued during such Deferral Period, the proceeds of which, in the case of clause (A) and clause (B), were applied to pay deferred interest on the Debentures pursuant to this Section 2.6(a), would exceed an amount equal to 2% of the total number of issued and outstanding shares of the Company’s Common Stock immediately prior to the date of the Company’s then most recent publicly available consolidated financial statements immediately prior to the date of such issuance (the “Common Equity Issuance Cap”); provided that the Common Equity Issuance Cap will cease to apply with respect to a Deferral Period following the fifth anniversary of the commencement of a Deferral Period, at which point the Company must pay any deferred interest regardless of the time at which it was deferred, pursuant to this Section 2.6, subject to a Market Disruption Event; and provided, further, that if the Common Equity Issuance Cap is reached during a Deferral Period and the Company subsequently pays all deferred interest, the Common Equity Issuance Cap will cease to apply with respect to a Deferral Period at the termination of such Deferral Period and will not apply again unless and until the Company starts a new Deferral Period; (ii) the foregoing obligations shall not apply to the extent that the net proceeds of any issuance of Qualifying Preferred Stock and Mandatorily Convertible Preferred Stock applied to pay interest on the Debentures pursuant to this Section 2.6, together with the net proceeds of all prior issuances of Preferred Stock and any still-outstanding Mandatorily Convertible Preferred Stock so applied during the current and all prior Deferral Periods, would exceed 25% of the aggregate principal amount of the Debentures issued under the Indenture (the “Preferred Stock Issuance Cap”); (iii) notwithstanding the Common Equity Issuance Cap and the Preferred Stock Issuance Cap, for purposes of paying deferred interest, the Company shall not be permitted, subject to the provisions of paragraph (v) below, to sell Common Stock, Qualifying Warrants, or Mandatorily Convertible Preferred Stock such that the Common Stock to be issued (or which would be issuable upon exercise or conversion thereof) would be in excess of 37.5 million shares of Common Stock (the “Share Cap Amount”); provided that if the issued and outstanding shares of Common Stock are changed into a different number of shares or a different class by reason of any stock split, reverse stock split, stock dividend, reclassification, recapitalization, split-up, combination, exchange of shares or other similar transaction, or if additional Debentures are issued, the Share Cap Amount shall be correspondingly adjusted. If the Company amends the definition of Qualifying APM Securities to eliminate Common Stock, then the number of shares constituting the Share Cap Amount will be increased by 100%. The Share Cap Amount limitation shall apply so long as the Debentures remain outstanding. If the Share Cap Amount has been reached and it is not sufficient to allow the Company to raise sufficient proceeds to pay deferred interest in full, the Company shall use its commercially reasonable efforts to increase the Share Cap Amount (1) only to the extent that the Company can do so and simultaneously satisfy its future fixed or contingent obligations under other securities and derivative instruments that provide for settlement or payment in shares of the Common Stock or (2) if the Company cannot increase the Share Cap Amount pursuant to the preceding clause (1), by requesting the Company’s Board of Directors, subject to its fiduciary duties, to adopt a resolution for shareholder vote at the next occurring annual shareholders meeting to increase the number of shares of the Company’s authorized Common Stock for purposes of satisfying the Company’s obligations to pay deferred interest. For the avoidance of doubt, (x) once the Company reaches the Common Equity Issuance Cap for a Deferral Period, the Company shall not be required to issue more Common Stock, or if the definition of Qualifying APM Securities has been amended to eliminate Common Stock, more Qualifying Warrants pursuant to this Section 2.6(a), prior to the fifth anniversary of the commencement of a Deferral Period even if the Common Equity Issuance Cap subsequently increases because of a subsequent increase in the number of outstanding shares of Common Stock, and (y) so long as the definition of Qualifying APM Securities has not been amended to eliminate Common Stock, the sale of Qualifying Warrants to pay deferred interest is an option that may be exercised at the Company’s sole discretion, subject to the Common Equity Issuance Cap and the Share Cap Amount, and the Company is not obligated to sell Qualifying Warrants or to apply the proceeds of any such sale to pay deferred interest on the Debentures, and no class of investors of the Company’s securities, or any other party, may require the Company to issue Qualifying Warrants.

Obligation to Issue Qualifying APM Securities. During any the APM Period, the Company shall, subject to the occurrence and continuation of a Supervisory Event or a Market Disruption Event as described in under Section 2.6(b2.7(b) and subject to Section 2.5(b) and Section 2.6(c2.5(c), issue one or more types of Qualifying APM Securities either in public offerings or private placements until the Company has raised an amount of Eligible Proceeds at least equal to the aggregate amount of accrued and unpaid deferred interest on the Debentures, including Additional Interest thereon, JSNs and applied such Eligible Proceeds on the next Interest Payment Date to the payment of deferred interest in accordance with Section 2.6, provided that: (i) the foregoing obligations shall not apply to the extent that (A) that, with respect to deferred interest attributable to the number first five years of shares of the Company’s Common Stock issued during such Deferral Period together with (B) the number of shares of the Company’s Common Stock issued or issuable upon the exercise of Qualifying Warrants previously issued during such Deferral any Extension Period, the net proceeds of whichany issuance of Common Stock (or, in if the case definition of clause (AQualifying APM Securities has been modified to exclude Common Stock, Qualifying Warrants) and clause (B), were applied during such Extension Period to pay deferred interest on the Debentures JSNs pursuant to this Section 2.6(a)2.7, together with the net proceeds of all prior issuances of Common Stock and Qualifying Warrants so applied, would exceed an amount equal to 2% of the product of the average of the Current Stock Market Prices of the Common Stock on the 10 consecutive Trading Days ending on the second Trading Day immediately preceding the date of issuance multiplied by the total number of issued and outstanding shares of the Company’s Common Stock immediately prior to as of the date of the Company’s then most recent publicly available consolidated financial statements immediately prior to the date of such issuance (the “Common Equity Issuance Cap”); provided that the Common Equity Issuance Cap will cease to apply with respect to a Deferral Period following after the fifth ninth anniversary of the commencement of a Deferral any Extension Period, at which point the Company must pay any deferred interest regardless of the time at which it was deferred, pursuant to this Section 2.62.7, subject to a any Supervisory Event or Market Disruption Event; and provided, further, that if the Common Equity Issuance Cap is reached during a Deferral an Extension Period and the Company subsequently pays repays all deferred interest, the Common Equity Issuance Cap will cease to apply with respect to a Deferral Period at the termination of such Deferral Extension Period and will not apply again unless and until the Company starts a new Deferral Extension Period;; and (ii) the foregoing obligations shall not apply to the extent that the net proceeds of any issuance of Qualifying Preferred Stock and Mandatorily Convertible Preferred Stock applied to pay interest on the Debentures JSNs pursuant to this Section 2.62.7, together with the net proceeds of all prior issuances of Preferred Stock and any still-outstanding Mandatorily Convertible Preferred Stock so applied during the current and all prior Deferral Extension Periods, would exceed 25% of the aggregate principal amount of the Debentures JSNs initially issued under the Indenture (the “Preferred Stock Issuance Cap”); (iii) notwithstanding the Common Equity Issuance Cap and the Preferred Stock Issuance Cap, for purposes of paying deferred interest, the Company shall not be permitted, subject to the provisions of paragraph (v) below, to sell Common Stock, Qualifying Warrants, or Mandatorily Convertible Preferred Stock such that the Common Stock to be issued (or which would be issuable upon exercise or conversion thereof) would be in excess of 37.5 million shares of Common Stock (the “Share Cap Amount”); provided that if the issued and outstanding shares of Common Stock are changed into a different number of shares or a different class by reason of any stock split, reverse stock split, stock dividend, reclassification, recapitalization, split-up, combination, exchange of shares or other similar transaction, or if additional Debentures are issued, the Share Cap Amount shall be correspondingly adjusted. If the Company amends the definition of Qualifying APM Securities to eliminate Common Stock, then the number of shares constituting the Share Cap Amount will be increased by 100%. The Share Cap Amount limitation shall apply so long as the Debentures remain outstanding. If the Share Cap Amount has been reached and it is not sufficient to allow the Company to raise sufficient proceeds to pay deferred interest in full, the Company shall use its commercially reasonable efforts to increase the Share Cap Amount (1) only to the extent that the Company can do so and simultaneously satisfy its future fixed or contingent obligations under other securities and derivative instruments that provide for settlement or payment in shares of the Common Stock or (2) if the Company cannot increase the Share Cap Amount pursuant to the preceding clause (1), by requesting the Company’s Board of Directors, subject to its fiduciary duties, to adopt a resolution for shareholder vote at the next occurring annual shareholders meeting to increase the number of shares of the Company’s authorized Common Stock for purposes of satisfying the Company’s obligations to pay deferred interest. For the avoidance of doubt, (x) once the Company reaches the Common Equity Issuance Cap for a Deferral an Extension Period, the Company shall not be required to issue more Common Stock, or if Stock with respect to deferred interest attributable to the definition first five years of Qualifying APM Securities has been amended to eliminate Common Stock, more Qualifying Warrants such Extension Period pursuant to this Section 2.6(a)2.7, prior to the fifth anniversary of the commencement of a Deferral Period even if the Common Equity Issuance Cap amount referred to in clause (i) of this Section 2.7 subsequently increases because of a subsequent increase in the Current Stock Market Price of Common Stock or the number of outstanding shares of Common Stock, and (y) so long as the definition of Qualifying APM Securities has not been amended to eliminate Common Stock, the sale of Qualifying Warrants to pay deferred interest is an option that may be exercised at the Company’s sole discretion, subject to the Common Equity Issuance Cap and the Share Cap AmountCap, and the Company is not obligated to sell Qualifying Warrants or to apply the proceeds of any such sale to pay deferred interest on the DebenturesJSNs, and no class of investors of the Company’s securities, or any other party, may require the Company to issue Qualifying Warrants.

Obligation to Issue Qualifying APM Securities. During any the APM Period, the Company shall, subject to the occurrence and continuation of a Supervisory Event or a Market Disruption Event as described in under Section 2.6(b2.7(b) and subject to Section 2.5(b) and Section 2.6(c2.5(c), issue one or more types of Qualifying APM Securities either in public offerings or private placements until the Company has raised an amount of Eligible Proceeds at least equal to the aggregate amount of accrued and unpaid deferred interest on the Debentures, including Additional Interest thereon, LoTSSM and applied such Eligible Proceeds on the next Interest Payment Date to the payment of deferred interest in accordance with Section 2.6, provided that: (i) the foregoing obligations shall will not apply during the first five years of any Deferral Period, to the extent that (A) the number net proceeds of shares any issuance of the Company’s Common Stock issued (or Qualifying Warrants if the definition of Qualifying APM Securities has been modified to exclude Common Stock), together with the net proceeds of all prior issuances of Common Stock and Qualifying Warrants applied during such Deferral Period together with (B) the number of shares of the Company’s Common Stock issued or issuable upon the exercise of Qualifying Warrants previously issued during such Deferral Period, the proceeds of which, in the case of clause (A) and clause (B), were applied to pay deferred interest on the Debentures LoTSSM pursuant to this Section 2.6(a)2.7, would exceed an amount equal to 2% of the product of the average of the Current Stock Market Prices of the Common Stock on the 10 consecutive Trading Days ending on the second Trading Day immediately preceding the date of issuance multiplied by the total number of issued and outstanding shares of the Company’s Common Stock immediately prior to as of the date of the Company’s then most recent publicly available consolidated financial statements immediately prior to the date of such issuance (the “Common Equity Issuance Cap”); provided that the Common Equity Issuance Cap will cease to apply with respect to a Deferral Period following the fifth anniversary of the commencement of a Deferral Period, at which point the Company must pay any deferred interest regardless of the time at which it was deferred, pursuant to this Section 2.6, subject to a Market Disruption Event; and provided, further, that if the Common Equity Issuance Cap is reached during a Deferral Period and the Company subsequently pays repays all deferred interest, the Common Equity Issuance Cap will cease to apply with respect to a Deferral Period at the termination of such Deferral Period and will not apply again unless and until the Company starts a new Deferral Period;; and (ii) the foregoing obligations shall will not apply to the extent that the net proceeds of any issuance of Qualifying Preferred Stock and Mandatorily Convertible Preferred Stock applied to pay interest on the Debentures LoTSSM pursuant to this Section 2.62.7, together with the net proceeds of all prior issuances of Preferred Stock and any still-outstanding Mandatorily Convertible Preferred Stock so applied during the current and all prior Deferral Periods, would exceed 25% of the aggregate principal amount of the Debentures LoTSSM issued under the Indenture (the “Preferred Stock Issuance Cap”); (iii) notwithstanding the Common Equity Issuance Cap and the Preferred Stock Issuance Cap, for purposes of paying deferred interest, the Company shall not be permitted, subject to the provisions of paragraph (v) below, to sell Common Stock, Qualifying Warrants, or Mandatorily Convertible Preferred Stock such that the Common Stock to be issued (or which would be issuable upon exercise or conversion thereof) would be in excess of 37.5 million shares of Common Stock (the “Share Cap Amount”); provided that if the issued and outstanding shares of Common Stock are changed into a different number of shares or a different class by reason of any stock split, reverse stock split, stock dividend, reclassification, recapitalization, split-up, combination, exchange of shares or other similar transaction, or if additional Debentures are issued, the Share Cap Amount shall be correspondingly adjusted. If the Company amends the definition of Qualifying APM Securities to eliminate Common Stock, then the number of shares constituting the Share Cap Amount will be increased by 100%. The Share Cap Amount limitation shall apply so long as the Debentures remain outstanding. If the Share Cap Amount has been reached and it is not sufficient to allow the Company to raise sufficient proceeds to pay deferred interest in full, the Company shall use its commercially reasonable efforts to increase the Share Cap Amount (1) only to the extent that the Company can do so and simultaneously satisfy its future fixed or contingent obligations under other securities and derivative instruments that provide for settlement or payment in shares of the Common Stock or (2) if the Company cannot increase the Share Cap Amount pursuant to the preceding clause (1), by requesting the Company’s Board of Directors, subject to its fiduciary duties, to adopt a resolution for shareholder vote at the next occurring annual shareholders meeting to increase the number of shares of the Company’s authorized Common Stock for purposes of satisfying the Company’s obligations to pay deferred interest. For the avoidance of doubt, (x) once the Company reaches the Common Equity Issuance Cap for a Deferral Period, the Company shall will not be required to issue more Common Stock, Stock (or Qualifying Warrants if the definition of Qualifying APM Securities has been amended modified to eliminate exclude Common Stock, more Qualifying Warrants ) during the first five years of such Deferral Period pursuant to this Section 2.6(a)2.7, prior to the fifth anniversary of the commencement of a Deferral Period even if the Common Equity Issuance Cap amount referred to in clause (i) of this Section 2.7 subsequently increases because of a subsequent increase in the Current Stock Market Price of Common Stock or the number of outstanding shares of Common Stock, and (y) so long as the definition of Qualifying APM Securities has not been amended to eliminate Common Stock, the sale of Qualifying Warrants to pay deferred interest is an option that may be exercised at the Company’s sole discretion, subject to the Common Equity Issuance Cap and the Share Cap Amount, discretion and the Company is not obligated to sell Qualifying Warrants or to apply the proceeds of any such sale to pay deferred interest on the DebenturesLoTSSM, and no class of investors of the Company’s securities, or any other party, may require the Company to issue Qualifying Warrants. The Company will be required to use commercially reasonable efforts, subject to the Common Equity Issuance Cap, to set the terms of the Qualifying Warrants so as to raise sufficient proceeds from their issuance to pay all deferred interest on the LoTSSM in accordance with Section 2.7.

Obligation to Issue Qualifying APM Securities. During any the APM Period, the Company shallwill, subject to the occurrence and continuation of a Supervisory Event or a Market Disruption Event as described in under Section 2.6(b2.7(b) and subject to Section 2.5(b) and Section 2.6(c2.5(c), issue one or more types of Qualifying APM Securities either in public offerings or private placements until the Company has raised an amount of Eligible Proceeds at least equal to the aggregate amount of accrued and unpaid deferred interest on the Debentures, including Additional Interest thereon, LoTSSM and applied such Eligible Proceeds on the next Interest Payment Date to the payment of deferred interest in accordance with Section 2.6, provided that: (i) the foregoing obligations shall will not apply to the extent that (A) that, with respect to deferred interest attributable to the number first five years of shares any Deferral Period, the net proceeds of the Company’s any issuance of Common Stock issued (or Qualifying Warrants if the definition of Qualifying APM Securities has been modified to exclude Common Stock) applied during such Deferral Period together with (B) the number of shares of the Company’s Common Stock issued or issuable upon the exercise of Qualifying Warrants previously issued during such Deferral Period, the proceeds of which, in the case of clause (A) and clause (B), were applied to pay deferred interest on the Debentures LoTSSM pursuant to this Section 2.6(a)2.7, together with the net proceeds of all prior issuances of Common Stock and Qualifying Warrants so applied, would exceed an amount equal to 2% of the product of the average of the Current Stock Market Prices of the Common Stock on the 10 consecutive Trading Days ending on the second Trading Day immediately preceding the date of issuance multiplied by the total number of issued and outstanding shares of the Company’s Common Stock immediately prior to as of the date of the Company’s then most recent publicly available consolidated financial statements immediately prior to the date of such issuance (the “Common Equity Issuance Cap”); provided that the Common Equity Issuance Cap will cease to apply with respect to a Deferral Period following after the fifth ninth anniversary of the commencement of a any Deferral Period, at which point the Company must pay any deferred interest regardless of the time at which it was deferred, pursuant to this Section 2.62.7, subject to a any Supervisory Event or Market Disruption Event; and provided, further, that if the Common Equity Issuance Cap is reached during a Deferral Period and the Company subsequently pays repays all deferred interest, the Common Equity Issuance Cap will cease to apply with respect to a Deferral Period at the termination of such Deferral Period and will not apply again unless and until the Company starts a new Deferral Period;; and (ii) the foregoing obligations shall will not apply to the extent that the net proceeds of any issuance of Qualifying Preferred Stock and Mandatorily Convertible Preferred Stock applied to pay interest on the Debentures LoTSSM pursuant to this Section 2.62.7, together with the net proceeds of all prior issuances of Preferred Stock and any still-outstanding Mandatorily Convertible Preferred Stock so applied during the current and all prior Deferral Periods, would exceed 25% of the aggregate principal amount of the Debentures LoTSSM initially issued under the Indenture (the “Preferred Stock Issuance Cap”); (iii) notwithstanding the Common Equity Issuance Cap and the Preferred Stock Issuance Cap, for purposes of paying deferred interest, the Company shall not be permitted, subject to the provisions of paragraph (v) below, to sell Common Stock, Qualifying Warrants, or Mandatorily Convertible Preferred Stock such that the Common Stock to be issued (or which would be issuable upon exercise or conversion thereof) would be in excess of 37.5 million shares of Common Stock (the “Share Cap Amount”); provided that if the issued and outstanding shares of Common Stock are changed into a different number of shares or a different class by reason of any stock split, reverse stock split, stock dividend, reclassification, recapitalization, split-up, combination, exchange of shares or other similar transaction, or if additional Debentures are issued, the Share Cap Amount shall be correspondingly adjusted. If the Company amends the definition of Qualifying APM Securities to eliminate Common Stock, then the number of shares constituting the Share Cap Amount will be increased by 100%. The Share Cap Amount limitation shall apply so long as the Debentures remain outstanding. If the Share Cap Amount has been reached and it is not sufficient to allow the Company to raise sufficient proceeds to pay deferred interest in full, the Company shall use its commercially reasonable efforts to increase the Share Cap Amount (1) only to the extent that the Company can do so and simultaneously satisfy its future fixed or contingent obligations under other securities and derivative instruments that provide for settlement or payment in shares of the Common Stock or (2) if the Company cannot increase the Share Cap Amount pursuant to the preceding clause (1), by requesting the Company’s Board of Directors, subject to its fiduciary duties, to adopt a resolution for shareholder vote at the next occurring annual shareholders meeting to increase the number of shares of the Company’s authorized Common Stock for purposes of satisfying the Company’s obligations to pay deferred interest. For the avoidance of doubt, (x) once the Company reaches the Common Equity Issuance Cap for a Deferral Period, the Company shall will not be required to issue more Common Stock, Stock (or Qualifying Warrants if the definition of Qualifying APM Securities has been amended modified to eliminate exclude Common Stock, more Qualifying Warrants ) with respect to deferred interest attributable to the first five years of such Deferral Period pursuant to this Section 2.6(a)2.7, prior to the fifth anniversary of the commencement of a Deferral Period even if the Common Equity Issuance Cap amount referred to in clause (i) of this Section 2.7 subsequently increases because of a subsequent increase in the Current Stock Market Price of Common Stock or the number of outstanding shares of Common Stock, and (y) so long as the definition of Qualifying APM Securities has not been amended to eliminate Common Stock, the sale of Qualifying Warrants to pay deferred interest is an option that may be exercised at the Company’s sole discretion, subject to the Common Equity Issuance Cap and the Share Cap Amount, discretion and the Company is not obligated to sell Qualifying Warrants or to apply the proceeds of any such sale to pay deferred interest on the DebenturesLoTSSM, and no class of investors of the Company’s securities, or any other party, may require the Company to issue Qualifying Warrants.