Common use of Repurchase of Notes by the Company at Option of Holders upon a Fundamental Change Clause in Contracts

Repurchase of Notes by the Company at Option of Holders upon a Fundamental Change. (a) If a Fundamental Change shall occur at any time prior to Stated Maturity, each holder shall have the right, at such holder’s option, to require the Company to repurchase all of such holder’s Notes, or any portion thereof that is a multiple of $1,000 principal amount, on the date specified in the Fundamental Change Offer, which date shall be no earlier than 30 days nor later than 60 days after the date of the Fundamental Change Offer (subject to extension to comply with applicable law) (the “Fundamental Change Repurchase Date”). The Company shall repurchase such Notes in cash at a price (the “Fundamental Change Repurchase Price”) equal to 100% of the principal amount thereof plus any accrued and unpaid Interest to but excluding the Fundamental Change Repurchase Date; provided that if such Fundamental Change Repurchase Date falls on an Interest Payment Date, then the Interest payable on such Interest Payment Date shall be paid to the holders of record of the Notes on the applicable record date instead of the holders surrendering the Notes for repurchase on such date. In the event that at the time of a Fundamental Change that requires the Company to repurchase the Notes, the terms of the Bank Indebtedness restrict or prohibit the repurchase of Notes pursuant to this Section 3.05, then prior to the mailing of the notice to holders provided for in Section 3.05(b) below but in any event within 45 days following such Fundamental Change, the Company shall (i) repay in full all Bank Indebtedness or, if doing so will allow the repurchase of Notes, offer to repay in full all Bank Indebtedness and repay the Bank Indebtedness of each lender who has accepted such offer or (ii) obtain the requisite consent under the agreements governing the Bank Indebtedness to permit the repurchase of the Notes as provided for in this Section 3.05. Notwithstanding the provisions of the immediately preceding paragraph, the Company shall not be required to repurchase any Notes of Holders upon a Fundamental Change (and the Company shall not be required to give notice as described in Section 3.05(b) below) if either: (i) the Last Reported Sale Price of the Common Stock for any five Trading Days within the 10 consecutive Trading Days ending immediately before the later of the Fundamental Change or the public announcement thereof, equals or exceeds 105% of the Conversion Price of the Notes immediately before the Fundamental Change or the public announcement thereof; or (ii) at least 90% of the consideration, excluding cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights, in the transaction or transactions constituting the Fundamental Change consists of shares of capital stock traded on a U.S. national securities exchange or quoted on the Nasdaq National Market or which will be so traded or quoted when issued or exchanged in connection with a Fundamental Change (these securities being referred to as “publicly traded securities”) and as a result of this transaction or transactions the Notes become convertible into such publicly traded securities. (b) Except as provided by Section 3.05(a), on or before the 45th day after the occurrence of a Fundamental Change, the Company, or at its written request the Trustee in the name of and at the expense of the Company (which request must be received by the Trustee at least three Business Days prior to the date the Trustee is requested to give notice as described below, unless the Trustee shall agree to a shorter period), shall mail or cause to be mailed, by first class mail, to all holders of record on such date a notice (the “Fundamental Change Offer”) of the occurrence of such Fundamental Change and of the repurchase right at the option of the holders arising as a result thereof to each holder of Notes at its last address as the same appears on the Note Register; provided that if the Company shall give such notice, it shall also give written notice of the Fundamental Change to the Trustee at such time as it is mailed to Noteholders. Such notice, if mailed in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. Each Fundamental Change Offer shall state: (i) the Fundamental Change Repurchase Price, excluding accrued and unpaid Interest, the applicable Conversion Rate at the time of such notice (and any applicable adjustments to the Conversion Rate) and, to the extent known at the time of such notice, the amount of Interest that will be payable with respect to the Notes on the Fundamental Change Repurchase Date; (ii) the events causing the Fundamental Change and the date of the Fundamental Change; (iii) the Fundamental Change Repurchase Date; (iv) the last date on which a holder may exercise the repurchase right; (v) the name and address of the Paying Agent and the Conversion Agent; (vi) that Notes as to which a Fundamental Change Repurchase Election has been given by the holder may be converted only if the election has been withdrawn by the holder in accordance with the terms of this Indenture; provided that the Notes are otherwise convertible in accordance with Section 15.01; (vii) that the holder shall have the right to withdraw any Notes surrendered prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date (or any such later time as may be required by applicable law); (viii) a description of the procedure which a Noteholder must follow to exercise such repurchase right or to withdraw any surrendered Notes; (ix) the CUSIP number or numbers of the Notes (subject to Section 2.09 and if then generally in use); and (x) briefly, the conversion rights of the Notes and whether, at the time of such notice, the Notes are eligible for conversion. No failure of the Company to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 3.05. (c) Notes shall be repurchased pursuant to this Section 3.05 at the option of the holder upon: (i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (a “Fundamental Change Repurchase Election”) in the form set forth on the reverse of the Note at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date stating: (A) if certificated, the certificate numbers of the Notes which the holder shall deliver to be repurchased; (B) the portion of the principal amount of the Notes that the holder shall deliver to be repurchased, which portion must be $1,000 or an integral multiple thereof, and (C) that such Notes shall be repurchased as of the Fundamental Change Repurchase Date pursuant to the terms and conditions specified in the Notes and in the Indenture; and (ii) physical delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) simultaneously with or at any time after delivery of the Fundamental Change Repurchase Election (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery or transfer being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 3.05 only if the Notes so delivered or transferred to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Election. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Note for repurchase shall be determined by the Company, whose determination shall be final and binding absent manifest error. (d) Notwithstanding the foregoing provisions of this Section, the Company shall not be required to make a Fundamental Change Offer upon a Fundamental Change if a third party makes the Fundamental Change Offer in the manner, at the times and otherwise in compliance with the requirements set forth in Section 3.05(b) applicable to a Fundamental Change Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Fundamental Change Offer.

Repurchase of Notes by the Company at Option of Holders upon a Fundamental Change. (a) If a Fundamental Change shall occur at any time prior to Stated Maturity, each holder shall have the right, at such holder’s option, to require the Company to repurchase for cash all or a portion of such holder’s Notes, or any portion of the Principal Amount thereof that is a equal to $1,000 or an integral multiple of $1,000 principal amount1,000, on the date specified in the Fundamental Change OfferRepurchase Notice, which date shall be no earlier more than 30 days nor later than 60 days Business Days after the date of the Fundamental Change Offer Repurchase Notice (subject to extension to comply with applicable law) (the “Fundamental Change Repurchase Date”). The Company shall repurchase such Notes in cash at a price equal to 100% of the Principal Amount thereof (the “Fundamental Change Repurchase Price”) equal to 100% of the principal amount thereof plus any accrued and unpaid Interest to on the Notes to, but excluding not including, the Fundamental Change Repurchase Date; provided that if such . If the applicable Fundamental Change Repurchase Date falls is after a Regular Record Date and on an or prior to the corresponding Interest Payment Date, then the Interest payable on such Interest Payment Date shall be paid on such Interest Payment Date to the holders of record of the such Notes on the applicable record date instead of the holders surrendering the such Notes for repurchase on such date. In the event that at the time of a Fundamental Change that requires the Company to repurchase the Notes, the terms of the Bank Indebtedness restrict or prohibit the repurchase of Notes pursuant to this Section 3.05, then prior to the mailing of the notice to holders provided for in Section 3.05(b) below but in any event within 45 days following such Fundamental Change, the Company shall (i) repay in full all Bank Indebtedness or, if doing so will allow the repurchase of Notes, offer to repay in full all Bank Indebtedness and repay the Bank Indebtedness of each lender who has accepted such offer or (ii) obtain the requisite consent under the agreements governing the Bank Indebtedness to permit the repurchase of the Notes as provided for in this Section 3.05. Notwithstanding the provisions of the immediately preceding paragraph, the Company shall not be required to repurchase any Notes of Holders upon a Fundamental Change (and the Company shall not be required to give notice as described in Section 3.05(b) below) if either: (i) the Last Reported Sale Price of the Common Stock for any five Trading Days within the 10 consecutive Trading Days ending immediately before the later of the Fundamental Change or the public announcement thereof, equals or exceeds 105% of the Conversion Price of the Notes immediately before the Fundamental Change or the public announcement thereof; or (ii) at least 90% of the consideration, excluding cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights, in the transaction or transactions constituting the Fundamental Change consists of shares of capital stock traded on a U.S. national securities exchange or quoted on the Nasdaq National Market or which will be so traded or quoted when issued or exchanged in connection with a Fundamental Change (these securities being referred to as “publicly traded securities”) and as a result of this transaction or transactions the Notes become convertible into such publicly traded securities. (b) Except as provided by Section 3.05(a), on On or before the 45th 30th calendar day after the occurrence of a Fundamental Change, the Company, or at its written request the Trustee in the name of and at the expense of the Company (which request must be received by the Trustee at least three five Business Days prior to the date the Trustee is requested to give notice as described below, unless the Trustee shall agree to a shorter period), shall mail or cause to be mailed, by first class mail, to all holders of record on such date a notice (which notice shall be prepared by the Company) (the “Fundamental Change OfferRepurchase Notice”) of the occurrence of such Fundamental Change and of the repurchase right at the option of the holders arising as a result thereof to each holder of Notes at its last address as the same appears on the Note Register, and the Company shall also provide notification thereof in the manner contemplated by Section 14.01(c) to beneficial owners as required by applicable law; provided that if the Company shall give such notice, it shall also give written notice of the Fundamental Change to the Trustee and Paying Agent, if other than the Trustee, at such time as it is mailed to Noteholders. Such notice, if mailed in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. Each Fundamental Change Offer Repurchase Notice shall state, among other things: (i) the events causing the Fundamental Change; (ii) the date of the Fundamental Change; (iii) the last date on which a holder may exercise the repurchase right; (iv) the Fundamental Change Repurchase Price, excluding accrued and unpaid Interest, the applicable Conversion Rate at the time of such notice (and any applicable adjustments to the Conversion Rate) Price and, to the extent known at the time of such notice, the amount of Interest that will be payable with respect to the Notes on to, but not including, the Fundamental Change Repurchase Date; (ii) the events causing the Fundamental Change and the date of the Fundamental Change; (iiiv) the Fundamental Change Repurchase Date; (iv) the last date on which a holder may exercise the repurchase right; (vvi) the name and address of the Paying Agent and the Conversion Exchange Agent, if the Notes are then exchangeable in accordance with Section 14.01; (vivii) if the Notes are then exchangeable in accordance with Section 14.01, the applicable Exchange Rate at the time of such notice (and any applicable adjustments to the applicable Exchange Rate); (viii) if the Notes are then exchangeable in accordance with Section 14.01, that Notes as to which a Fundamental Change Repurchase Election has been given by the holder may be converted exchanged only if the election has been withdrawn by the holder in accordance with the terms of this Indenture; provided that the Notes are otherwise convertible in accordance with Section 15.01; (viiix) that the holder shall have the right to withdraw any Notes surrendered prior to the close of business 5:00 p.m., New York City time, on the Business Day immediately preceding the Fundamental Change Repurchase Date (or any such later time as may be required by applicable law); (viiix) a description of the procedure procedures which a Noteholder must follow to exercise such repurchase right or to withdraw any surrendered Notes; (ixxi) the CUSIP CUSIP, ISIN or similar number or numbers of the Notes (subject to Section 2.09 and if then generally in use); and (xxii) briefly, the conversion exchange rights of the Notes and whether, at holders of the time of such notice, the Notes are eligible for conversionNotes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 3.053.04. (c) Notes shall be repurchased pursuant to this Section 3.05 3.04 at the option of the holder upon: (i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (a “Fundamental Change Repurchase Election”) in the form set forth on the reverse of the Note at any time prior to the close of business 5:00 p.m., New York City time, on the Business Day immediately preceding the Fundamental Change Repurchase Date Date, which is subject to extension to comply with applicable law, stating: (A) if certificatedcertificated notes have been issued, the certificate numbers of the Notes which the holder shall deliver to be repurchased; (B) the portion of the principal amount Principal Amount of the Notes that the holder shall deliver to be repurchased, which portion must be $1,000 or an integral multiple thereof, ; and (C) that such Notes shall be repurchased by the Company as of the Fundamental Change Repurchase Date pursuant to the terms and conditions specified in the Notes and in the Indenture; and (ii) physical delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) simultaneously with or at any time after delivery of the Fundamental Change Repurchase Election (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of ManhattanAgent, such delivery or transfer being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 3.05 3.04 only if the Notes so delivered or transferred to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Election. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Note for repurchase shall be determined by the Company, whose determination shall be final and binding absent manifest error. (d) Notwithstanding . If the foregoing provisions Notes are not in certificated form, holders must provide notice of this Section, the Company shall not be required to make a Fundamental Change Offer upon a Fundamental Change if a third party makes the Fundamental Change Offer their election in the manner, at the times and otherwise in compliance accordance with the requirements set forth in Section 3.05(b) applicable to a Fundamental Change Offer made by appropriate procedures of the Company and purchases all Notes validly tendered and not withdrawn under such Fundamental Change OfferDepositary.

Repurchase of Notes by the Company at Option of Holders upon a Fundamental Change. (a) If a Fundamental Change occurs (subject to certain exceptions set forth below), Notes not previously purchased by the Company shall occur at any time prior to Stated Maturity, each holder shall have be purchased for cash by the rightCompany, at such holder’s optionthe option of the Holder thereof, at a purchase price equal to require 100% of the Company to repurchase all principal amount of such holder’s those Notes, or any portion thereof plus accrued and unpaid Interest (the “Fundamental Change Repurchase Price”) to, but not including, the date that is a multiple of $1,000 principal amount, on the date specified in the Fundamental Change Offer, which date shall be no earlier than 30 days nor later than 60 days after following the date of the notice of a Fundamental Change Offer (subject delivered by the Company pursuant to extension to comply with applicable lawSection 3.05(b) (the “Fundamental Change Repurchase Date”), subject to satisfaction by or on behalf of the Holder of the requirements set forth in Section 3.05(c). The Company shall repurchase such Notes in cash at a price (If the “Fundamental Change Repurchase Price”) equal Date is on a date that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date, the Company shall pay such Interest to the holder of record on the corresponding Regular Record Date and the Fundamental Change Repurchase Price shall only be 100% of the principal amount thereof plus any accrued and unpaid Interest of those Notes to but excluding the Fundamental Change Repurchase Date; provided that if such Fundamental Change Repurchase Date falls on an Interest Payment Date, then the Interest payable on such Interest Payment Date shall be paid to the holders of record of the Notes on the applicable record date instead of the holders surrendering the Notes for repurchase on such date. In the event that at the time of a Fundamental Change that requires the Company to repurchase the Notes, the terms of the Bank Indebtedness restrict or prohibit the repurchase of Notes pursuant to this Section 3.05, then prior to the mailing of the notice to holders provided for in Section 3.05(b) below but in any event within 45 days following such Fundamental Change, the Company shall (i) repay in full all Bank Indebtedness or, if doing so will allow the repurchase of Notes, offer to repay in full all Bank Indebtedness and repay the Bank Indebtedness of each lender who has accepted such offer or (ii) obtain the requisite consent under the agreements governing the Bank Indebtedness to permit the repurchase of the Notes as provided for in this Section 3.05purchased. Notwithstanding the provisions of the immediately preceding paragraphforegoing, the Company shall not be required to repurchase any purchase Notes of Holders pursuant to this Section 3.05(a) upon a Fundamental Change (and the Company shall not be required to give notice as described in Section 3.05(b) below) that is a Change of Control if either: (i) the Last Reported Sale Price 90% or more of the Common Stock for any five Trading Days within consideration in the 10 consecutive Trading Days ending immediately before the later of the Fundamental Change transaction or the public announcement thereof, equals or exceeds 105% of the Conversion Price of the Notes immediately before the Fundamental Change or the public announcement thereof; or transactions (ii) at least 90% of the consideration, excluding other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights, ) constituting a Change of Control described in clause (iii) in the transaction or transactions constituting the Fundamental Change definition thereof consists of shares of capital common stock traded or to be traded immediately following such Change of Control on a U.S. national securities exchange or quoted on the Nasdaq National Market or which will be so traded or quoted when issued or exchanged in connection with a Fundamental Change (these securities being referred to as “publicly traded securities”) and Market, and, as a result of this the transaction or transactions transactions, the Notes become convertible into such publicly traded securitiesthat common stock (and any rights attached thereto), if any, pursuant to Section 15.06. (b) Except as provided by Section 3.05(a), on or before the 45th day No later than 45 days after the occurrence of a Fundamental Change, the Company, or at its written request the Trustee in the name of and at the expense of the Company (which request must be received by the Trustee at least three Business Days prior to the date the Trustee is requested to give notice as described below, unless the Trustee shall agree to a shorter period), shall mail or cause to be mailed, by first class mail, to all holders of record on such date a notice (the “Fundamental Change Offer”) of the occurrence of such Fundamental Change and of the repurchase right at the option of the holders arising as a result thereof to each holder of Notes at its last address as the same appears on the Note Register; provided that if the Company shall give such notice, it shall also give written notice of the Fundamental Change by first class mail to the Trustee at such time and to each Holder (and to beneficial owners as it is mailed to Noteholdersrequired by applicable law). Such notice, if mailed in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. Each The Fundamental Change Offer shall include a form of Fundamental Change Repurchase Election to be completed by the Holder and shall state: (i) briefly, the events causing a Fundamental Change Repurchase Price, excluding accrued and unpaid Interest, the applicable Conversion Rate at the time date of such notice (and any applicable adjustments to the Conversion Rate) and, to the extent known at the time of such notice, the amount of Interest that will be payable with respect to the Notes on the Fundamental Change Repurchase DateChange; (ii) the events causing date by which the Fundamental Change and Repurchase Election pursuant to this Section 3.05 must be delivered to the date of Paying Agent in order for a Holder to exercise the Fundamental Changerepurchase rights; (iii) the Fundamental Change Repurchase Date; (iv) the last date on which a holder may exercise the repurchase rightFundamental Change Repurchase Price; (v) the name and address of the Paying Agent and the Conversion Agent; (vi) the Conversion Rate (including any Additional Shares to be included in such Conversion Rate pursuant to Section 15.01(d)); (vii) that the Notes as to which a Fundamental Change Repurchase Election has been given by the holder may be converted if they are otherwise convertible pursuant to Article 15 hereof only if the election Fundamental Change Repurchase Election has been withdrawn by the holder in accordance with the terms of this Indenture; provided ; (viii) that the Notes are otherwise convertible in accordance with Section 15.01must be surrendered to the Paying Agent to collect payment; (viiix) that the holder shall have Fundamental Change Repurchase Price for any Note as to which a Fundamental Change Repurchase Election has been duly given and not withdrawn will be paid promptly following the right to withdraw any Notes surrendered prior to the close later of business on the Business Day immediately preceding following the Fundamental Change Repurchase Date and the time of surrender of such Note as described in clause (or any such later time as may be required by applicable lawviii); (viiix) a description of briefly, the procedure which a Noteholder procedures the Holder must follow to exercise such repurchase right or to withdraw any surrendered rights under this Section 3.05; (xi) briefly, the conversion rights, if any, on the Notes; (ixxii) the procedures for withdrawing a Fundamental Change Repurchase Election; (xiii) that, unless the Company defaults in making payment of such Fundamental Change Repurchase Price, Interest on Notes surrendered for purchase by the Company will cease to accrue on and immediately after the Fundamental Change Repurchase Date; and (xiv) the CUSIP number or numbers of the Notes (subject to Section 2.09 and if then generally in use); and (x) briefly. At the Company’s request, the conversion rights of Trustee shall give such Fundamental Change Offer in the Notes Company’s name and whether, at the time Company’s expense; provided, however, that, in all cases, the text of such notice, Fundamental Change Offer shall be prepared by the Notes are eligible for conversionCompany. No failure of the Company to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 3.05. (c) Notes shall be repurchased pursuant to A Holder may exercise its rights specified in this Section 3.05 at the option of the holder upon: (i) upon delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed written notice of purchase (a “Fundamental Change Repurchase Election”) in the form set forth on the reverse of the Note at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date stating: (A) if certificated, the certificate numbers of the Notes which the holder shall deliver to be repurchased; (B) the portion of the principal amount of the Notes that the holder shall deliver to be repurchased, which portion must be $1,000 or an integral multiple thereof, and (C) that such Notes shall be repurchased as of the Fundamental Change Repurchase Date pursuant to the terms and conditions specified in the Notes and in the Indenture; and (ii) physical delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) simultaneously with or at any time after delivery of the Fundamental Change Repurchase Election (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery or transfer being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 3.05 only if the Notes so delivered or transferred to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Election. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Note for repurchase shall be determined by the Company, whose determination shall be final and binding absent manifest error. (d) Notwithstanding the foregoing provisions of this Section, the Company shall not be required to make a Fundamental Change Offer upon a Fundamental Change if a third party makes the Fundamental Change Offer in the manner, at the times and otherwise in compliance with the requirements set forth in Section 3.05(b) applicable to a Fundamental Change Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Fundamental Change Offer.

Repurchase of Notes by the Company at Option of Holders upon a Fundamental Change. (a) If there shall occur a Fundamental Change shall occur at any time prior to Stated Maturitymaturity of the Notes, then each holder Noteholder shall have the right, at such holder’s 's option, to require the Company to repurchase all of such holder’s 's Notes, or any portion thereof that is a an integral multiple of $1,000 principal amount, on a date designated by the date specified in Company (the "Fundamental Change Offer, which date shall be no earlier Repurchase Date") that is not less than 30 days fifteen (15) nor later more than 60 thirty (30) days after the date of the Fundamental Change Offer (subject to extension to comply with applicable law) (the “Notice for such Fundamental Change Repurchase Date”). The Company shall at a repurchase such Notes price in cash at a price (the “Fundamental Change Repurchase Price”) equal to 100% of the principal amount thereof plus any thereof, together with accrued and unpaid Interest to and Additional Amounts, if any, to, but excluding excluding, the Fundamental Change Repurchase DateDate (such price to be paid promptly following the later of the Business Day immediately following the Fundamental Change Repurchase Date and the time of book-entry transfer or delivery of the Notes); provided that if such Fundamental Change Repurchase Date falls after a record date and on an Interest Payment Dateor prior to the corresponding interest payment date, then the Interest and Additional Amounts, if any, payable on such Interest Payment Date interest payment date shall be paid to the holders of record of the Notes at the close of business on the applicable record date instead of the holders surrendering the Notes for repurchase on such date. In the event that at the time of a Fundamental Change that requires the Company to repurchase the Notes, the terms of the Bank Indebtedness restrict or prohibit the repurchase of Notes pursuant to this Section 3.05, then prior to the mailing of the notice to holders provided for in Section 3.05(b) below but in any event within 45 days following such Fundamental Change, the Company shall (i) repay in full all Bank Indebtedness or, if doing so will allow the repurchase of Notes, offer to repay in full all Bank Indebtedness and repay the Bank Indebtedness of each lender who has accepted such offer or (ii) obtain the requisite consent under the agreements governing the Bank Indebtedness to permit the repurchase of the Notes as provided for in this Section 3.05. Notwithstanding the provisions of the immediately preceding paragraph, the Company shall not be required to repurchase any Notes of Holders upon a Fundamental Change (and the Company shall not be required to give notice as described in Section 3.05(b) below) if either: (i) the Last Reported Sale Price of the Common Stock for any five Trading Days within the 10 consecutive Trading Days ending immediately before the later of the Fundamental Change or the public announcement thereof, equals or exceeds 105% of the Conversion Price of the Notes immediately before the Fundamental Change or the public announcement thereof; or (ii) at least 90% of the consideration, excluding cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights, in the transaction or transactions constituting the Fundamental Change consists of shares of capital stock traded on a U.S. national securities exchange or quoted on the Nasdaq National Market or which will be so traded or quoted when issued or exchanged in connection with a Fundamental Change (these securities being referred to as “publicly traded securities”) and as a result of this transaction or transactions the Notes become convertible into such publicly traded securitiesrepurchase. (b) Except as provided by Section 3.05(a), on On or before the 45th 20th day after the occurrence of a Fundamental Change, the Company, Company or at its written request the Trustee in the name of and at the expense of the Company (which request must be received by the Trustee at least three five (5) Business Days prior to the date the Trustee is requested to give notice as described below, unless the Trustee shall agree in writing to a shorter period), the Trustee, in the name of and at the expense of the Company, shall mail or cause to be mailed, by first class mail, mailed to all holders of record on such the date of the Fundamental Change a notice (the “"Fundamental Change Offer”Notice") of the occurrence of such Fundamental Change and of the repurchase right at the option of the holders arising as a result thereof to each holder thereof. Such notice shall be mailed in the manner and with the effect set forth in the first paragraph of Notes at its last address as Section 3.02 (without regard for the same appears on the Note Register; provided that if time limits set forth therein). If the Company shall give such notice, it the Company shall also give written notice deliver a copy of the Fundamental Change Notice to the Trustee or to any other paying agent appointed by the Company at such time as it is mailed to Noteholders. Such noticeConcurrently with, if mailed or promptly following, the mailing of any Fundamental Change Notice, the Company shall issue a press release announcing such Fundamental Change referred to in the manner herein providedFundamental Change Notice, the form and content of which press release shall be conclusively presumed determined by the Company in its sole discretion, and the Company shall use its reasonable efforts to publish such information on its website or through such other public medium as the Company shall deem appropriate at such time. The failure to issue any such press release or otherwise publish such information or any defect therein shall not affect the validity of the Fundamental Change Notice or any proceedings for the repurchase of any Note that any Noteholder may elect to have been duly given, whether or not the holder receives such noticeCompany repurchase as provided in this Section 3.05. Each Fundamental Change Offer Notice shall state: (i) specify the circumstances constituting the Fundamental Change Repurchase PriceChange, excluding accrued and unpaid Interest, the applicable Conversion Rate at the time of such notice (and any applicable adjustments to the Conversion Rate) and, to the extent known at the time of such notice, the amount of Interest that will be payable with respect to the Notes on the Fundamental Change Repurchase Date; (ii) , the events causing price at which the Fundamental Change and Company shall be obligated to repurchase Notes, that the date holder must exercise the repurchase right on or prior to the close of business on the Fundamental Change; (iii) fifth Business Day prior to the Fundamental Change Repurchase Date; Date (iv) the last date on which a holder may exercise the repurchase right; (v) the name and address of the Paying Agent and the Conversion Agent; (vi) that Notes as to which a "Fundamental Change Repurchase Election has been given by the holder may be converted only if the election has been withdrawn by the holder in accordance with the terms of this Indenture; provided that the Notes are otherwise convertible in accordance with Section 15.01; (vii) Expiration Time"), that the holder shall have the right to withdraw any Notes surrendered prior to the close of business on the Business Day immediately preceding the Fundamental Change Expiration Time, if the Notes are then convertible, that Notes as to which an Option to Elect Repurchase Date (or any such later time as upon a Fundamental Change has been given may be required by applicable law); (viii) converted only if the Option to Elect Repurchase upon a Fundamental Change is withdrawn in accordance with the terms of this Indenture, a description of the procedure which that a Noteholder must follow to exercise such repurchase right or and to withdraw any surrendered Notes; (ix) , the place or places where the holder is to surrender such holder's Notes, the amount of Interest and Additional Amounts, if any, accrued and unpaid on each Note to the Fundamental Change Repurchase Date and the CUSIP number or numbers of the Notes (subject to Section 2.09 and if then generally in use); and (x) briefly, the conversion rights of the Notes and whether, at the time of such notice, the Notes are eligible for conversion. No failure of the Company to give the foregoing notices and no defect therein shall limit the Noteholders’ ' repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 3.05. (c) Notes shall be repurchased pursuant to this Section 3.05 at the option of the holder upon: (i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (a “Fundamental Change Repurchase Election”) in the form set forth on the reverse of the Note at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date stating: (A) if certificated, the certificate numbers of the Notes which the holder shall deliver to be repurchased; (B) the portion of the principal amount of the Notes that the holder shall deliver to be repurchased, which portion must be $1,000 or an integral multiple thereof, and (C) that such Notes shall be repurchased as of the Fundamental Change Repurchase Date pursuant to the terms and conditions specified in the Notes and in the Indenture; and (ii) physical delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) simultaneously with or at any time after delivery of the Fundamental Change Repurchase Election (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery or transfer being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 3.05 only if the Notes so delivered or transferred to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Election. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Note for repurchase shall be determined by the Company, whose determination shall be final and binding absent manifest error. (d) Notwithstanding the foregoing provisions of this Section, the Company shall not be required to make a Fundamental Change Offer upon a Fundamental Change if a third party makes the Fundamental Change Offer in the manner, at the times and otherwise in compliance with the requirements set forth in Section 3.05(b) applicable to a Fundamental Change Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Fundamental Change Offer.

Repurchase of Notes by the Company at Option of Holders upon a Fundamental Change. (a) If a Fundamental Change shall occur at any time prior to Stated Maturity, each holder shall have the right, at such holder’s 's option, to require the Company to repurchase all of such holder’s 's Notes, or any portion thereof that is a equal to US$1,000 or an integral multiple of $1,000 principal amount, for cash on the date specified in the Fundamental Change OfferRepurchase Notice (the "FUNDAMENTAL CHANGE REPURCHASE DATE"), which date shall be no earlier fewer than 30 twenty (20) days nor later more than 60 thirty-five (35) days after the date of the Fundamental Change Offer Notice Date (as defined in paragraph (b) below), subject to extension to comply with applicable law) (the “Fundamental Change Repurchase Date”). The Company shall repurchase such Notes in cash at a price (the “Fundamental Change Repurchase Price”"FUNDAMENTAL CHANGE REPURCHASE PRICE") equal to 100% of the principal amount thereof plus any accrued and unpaid Interest interest and Liquidated Damages, if any, to (but excluding not including) the Fundamental Change Repurchase Date; provided however, that if such Fundamental Change Repurchase Date falls on an Interest Payment Date, then in the Interest payable on such Interest Payment Date shall be paid to case of Note repurchased upon the holders of record of the Notes on the applicable record date instead of the holders surrendering the Notes for repurchase on such date. In the event that at the time occurrence of a Fundamental Change that requires during the Company period from the applicable Record Date to, but excluding, the next succeeding Liquidated Damages payment date, Liquidated Damages will be payable on the date of repurchase to the holder of the Note repurchased as of the relevant Record Date, and no Liquidated Damages will be paid on such Liquidated Damages payment date in respect of any such Note (or portion thereof). The Company's obligation to repurchase all or a portion of a holder's Notes under this Section 3.04 shall be satisfied if a third party makes the offer to repurchase the Notes, Notes at the terms of Fundamental Change Repurchase Price in the Bank Indebtedness restrict or prohibit manner and at the repurchase of Notes pursuant to this Section 3.05, then prior to times and otherwise in compliance in all material respects with the mailing of the notice to holders provided for in Section 3.05(b) below but in any event within 45 days following such Fundamental Change, the Company shall (i) repay in full all Bank Indebtedness or, if doing so will allow the repurchase of Notes, offer to repay in full all Bank Indebtedness and repay the Bank Indebtedness of each lender who has accepted such offer or (ii) obtain the requisite consent under the agreements governing the Bank Indebtedness to permit the repurchase of the Notes as provided for requirements set out in this Section 3.05. Notwithstanding 3.04, such third party purchases all Notes properly tendered and not withdrawn and such third party complies with the provisions obligations of the immediately preceding paragraph, the Company shall not be required to repurchase any Notes of Holders upon a Fundamental Change (and the Company shall not be required to give notice as described in Section 3.05(b) below) if either: (i) the Last Reported Sale Price of the Common Stock for any five Trading Days within the 10 consecutive Trading Days ending immediately before the later of the Fundamental Change or the public announcement thereof, equals or exceeds 105% of the Conversion Price of the Notes immediately before the Fundamental Change or the public announcement thereof; or (ii) at least 90% of the consideration, excluding cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights, in the transaction or transactions constituting the Fundamental Change consists of shares of capital stock traded on a U.S. national securities exchange or quoted on the Nasdaq National Market or which will be so traded or quoted when issued or exchanged in connection with a Fundamental Change (these securities being referred to as “publicly traded securities”) and as a result of this transaction or transactions the Notes become convertible into such publicly traded securitiesherewith. (b) Except as provided by Section 3.05(a), on On or before the 45th thirtieth (30th) day after the occurrence of a Fundamental Change, the Company, or at its written request the Trustee in the name of and at the expense of the Company (which request must be received by the Trustee at least three (3) Business Days prior to the date the Trustee is requested to give notice as described below, unless the Trustee shall agree to a shorter period), shall mail or cause to be mailedmailed (the date of such mailing, "FUNDAMENTAL CHANGE NOTICE DATE"), by first class mail, to all holders of record on such date a notice (the “Fundamental Change Offer”"FUNDAMENTAL CHANGE REPURCHASE NOTICE") to each holder of record of Notes on such date at its last address as the same appears on the Note Register of the occurrence of such Fundamental Change and of the repurchase right at the option of the holders arising as a result thereof to each holder of Notes at its last address as the same appears on the Note Register; provided that if the Company shall give such notice, it shall also give written notice of the Fundamental Change to the Trustee and the Paying Agent at such time as it is mailed to Noteholders. Such notice, if mailed in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. Each Fundamental Change Offer Repurchase Notice shall state: (i) the Fundamental Change Repurchase Price, excluding accrued and unpaid Interestinterest, the applicable Applicable Conversion Rate at the time of such notice (and any applicable adjustments to the Conversion Rate) and, to the extent known at the time of such notice, the amount of Interest interest that will be payable with respect to the Notes on the Fundamental Change Repurchase Date; (ii) the events causing the Fundamental Change and the date of the Fundamental Change; (iii) the Fundamental Change Repurchase Date; (iv) the last date on which a holder may exercise the repurchase right; (v) the name and address of the Paying Agent and the Conversion Agent; (vi) that Notes as to which a Fundamental Change Repurchase Election has been given by the holder may be converted only if the election has been withdrawn by the holder in accordance with the terms of this Indenture; provided that the Notes are otherwise convertible in accordance with Section 15.0114.01; (vii) that the holder shall have the right to withdraw any repurchase election (in whole or part) and any Notes surrendered prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date (or any such later time as may be required by applicable law); (viii) that Notes must be surrendered to the Paying Agent for cancelation to collect payment; (ix) a description of the procedure which a Noteholder must follow to exercise such repurchase right or to withdraw any surrendered Notes; (ixx) the CUSIP number or numbers of the Notes (subject to Section 2.09 and if then generally in use); and (xxi) the Conversion Price and any adjustments thereto and briefly, the conversion rights of the Notes and whether, at the time of such notice, the Notes are eligible for conversion. Simultaneously with providing the Fundamental Change Repurchase Notice, the Company will issue a press release and publish the information through a public medium customary for such press releases. No failure of the Company to give the foregoing notices and no defect therein shall limit the Noteholders’ ' repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 3.053.04. (c) Notes shall be repurchased pursuant to this Section 3.05 at the option of the holder 3.04 upon: (i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (a “Fundamental Change Repurchase Election”"FUNDAMENTAL CHANGE REPURCHASE ELECTION") in the form set forth on the reverse of the Note at any time prior to the close of business on the fifth Business Day immediately preceding the Fundamental Change Repurchase Date (subject to extension by applicable law) stating: (Aa) if certificated, the certificate numbers of the Notes which the holder shall deliver to be repurchased; (Bb) the portion of the principal amount of the Notes that the holder shall deliver to be repurchased, which portion must be $1,000 or an integral multiple thereof, ; and (Cc) that such Notes shall be repurchased as of the Fundamental Change Repurchase Date pursuant to the terms and conditions specified in the Notes and in the Indenture; and (ii) physical delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) simultaneously with or at any time after delivery of the Fundamental Change Repurchase Election (together with all necessary endorsements) at the Corporate Trust Office office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery or transfer being a condition to receipt by the holder of the Fundamental Change Repurchase Price thereforPrice; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 3.05 3.04 only if the Notes so delivered or transferred to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Election. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Note for repurchase shall be determined by the Company, whose determination shall be final and binding absent manifest error. (d) Notwithstanding the foregoing provisions of this Section, the Company shall not be required to make a Fundamental Change Offer upon a Fundamental Change if a third party makes the Fundamental Change Offer in the manner, at the times and otherwise in compliance with the requirements set forth in Section 3.05(b) applicable to a Fundamental Change Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Fundamental Change Offer.

Repurchase of Notes by the Company at Option of Holders upon a Fundamental Change. (a) If a Fundamental Change shall occur at any time prior to Stated Maturity, each holder shall have the right, at such holder’s option, to require the Company to repurchase in cash all of such holder’s Notes, or any portion thereof that is a multiple of $1,000 principal amount, on the date specified in the Fundamental Change Offer, which date shall be no earlier than 30 days nor later than 60 days after the date of the Fundamental Change Offer (subject to extension to comply with applicable law) (the “Fundamental Change Repurchase Date”). The Company shall repurchase such Notes in cash at a price (the “Fundamental Change Repurchase Price”) equal to 100% of the principal amount thereof plus any accrued and unpaid Interest to but excluding the Fundamental Change Repurchase Date; provided that if such Fundamental Change Repurchase Date falls on an Interest Payment Date, then the Interest payable on such Interest Payment Date shall be paid to the holders of record of the Notes on the applicable record date instead of the holders surrendering the Notes for repurchase on such date. In the event that at the time of a such Fundamental Change that requires the Company to repurchase the Notes, the terms of the Bank Indebtedness restrict or prohibit the repurchase of Notes pursuant to this Section 3.05, then prior to the mailing of the notice to holders Holders provided for in Section 3.05(b) below but in any event within 45 days following such any Fundamental Change, the Company shall (i) repay in full all Bank Indebtedness or, if doing so will allow the repurchase of Notes, offer to repay in full all Bank Indebtedness and repay the Bank Indebtedness of each lender who has accepted such offer or (ii) obtain the requisite consent under the agreements governing the Bank Indebtedness to permit the repurchase of the Notes as provided for in this Section 3.05. Notwithstanding the provisions of the immediately preceding paragraph, the Company shall not be required to repurchase any Notes of Holders upon a Fundamental Change (and the Company shall not be required to give notice as described in Section 3.05(b) below) if either: (i) the Last Reported Sale Price of the Common Stock for any five Trading Days within the 10 consecutive Trading Days ending immediately before the later of the Fundamental Change or the public announcement thereof, equals or exceeds 105% of the Conversion Price of the Notes immediately before the Fundamental Change or the public announcement thereof; or (ii) at least 90% of the consideration, excluding cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights, in the transaction or transactions constituting the Fundamental Change consists of shares of capital stock traded on a U.S. national securities exchange or quoted on the Nasdaq National Market or which will be so traded or quoted when issued or exchanged in connection with a Fundamental Change (these securities being referred to as “publicly traded securities”) and as a result of this transaction or transactions the Notes become convertible into such publicly traded securities. (b) Except as provided by Section 3.05(a), on On or before the 45th day after the occurrence of a Fundamental Change, the Company, or at its written request the Trustee in the name of and at the expense of the Company (which request must be received by the Trustee at least three Business Days prior to the date the Trustee is requested to give notice as described below, unless the Trustee shall agree to a shorter period), shall mail or cause to be mailed, by first class mail, to all holders of record on such date a notice (the “Fundamental Change Offer”) of the occurrence of such Fundamental Change and of the repurchase right at the option of the holders arising as a result thereof to each holder of Notes at its last address as the same appears on the Note Register; provided that if the Company shall give such notice, it shall also give written notice of the Fundamental Change to the Trustee at such time as it is mailed to Noteholders. Such notice, if mailed in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. Each Fundamental Change Offer shall state: (i) the Fundamental Change Repurchase Price, excluding accrued and unpaid Interest, the applicable Conversion Rate at the time of such notice (and any applicable adjustments to the Conversion Rate) and, to the extent known at the time of such notice, the amount of Interest that will be payable with respect to the Notes on the Fundamental Change Repurchase Date; (ii) the events causing the Fundamental Change and the date of the Fundamental Change; (iii) the Fundamental Change Repurchase Date; (iv) the last date on which a holder may exercise the repurchase right; (v) the name and address of the Paying Agent and the Conversion Agent; (vi) that Notes as to which a Fundamental Change Repurchase Election has been given by the holder may be converted only if the election has been withdrawn by the holder in accordance with the terms of this Indenture; provided that the Notes are otherwise convertible in accordance with Section 15.01; (vii) that the holder shall have the right to withdraw any Notes surrendered prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date (or any such later time as may be required by applicable law); (viii) a description of the procedure which a Noteholder must follow to exercise such repurchase right or to withdraw any surrendered Notes; (ix) the CUSIP number or numbers of the Notes (subject to Section 2.09 and if then generally in use); and (x) briefly, the conversion rights of the Notes and whether, at the time of such notice, the Notes are eligible for conversion. No failure of the Company to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 3.05. (c) Notes shall be repurchased pursuant to this Section 3.05 at the option of the holder upon: (i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (a “Fundamental Change Repurchase Election”) in the form set forth on the reverse of the Note at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date stating: (A) if certificated, the certificate numbers of the Notes which the holder shall deliver to be repurchased; (B) the portion of the principal amount of the Notes that the holder shall deliver to be repurchased, which portion must be $1,000 or an integral multiple thereof, and (C) that such Notes shall be repurchased as of the Fundamental Change Repurchase Date pursuant to the terms and conditions specified in the Notes and in the Indenture; and (ii) physical delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) simultaneously with or at any time after delivery of the Fundamental Change Repurchase Election (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery or transfer being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 3.05 only if the Notes so delivered or transferred to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Election. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Note for repurchase shall be determined by the Company, whose determination shall be final and binding absent manifest error. (d) Notwithstanding the foregoing provisions of this Section, the Company shall not be required to make a Fundamental Change Offer upon a Fundamental Change if a third party makes the Fundamental Change Offer in the manner, at the times and otherwise in compliance with the requirements set forth in Section 3.05(b) applicable to a Fundamental Change Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Fundamental Change Offer.

Repurchase of Notes by the Company at Option of Holders upon a Fundamental Change. (a) If a Fundamental Change shall occur at any time prior to Stated Maturity, each holder shall have the right, at such holder’s option, to require the Company to repurchase for cash all or a portion of such holder’s Notes, or any portion of the Principal Amount thereof that is a equal to $1,000 or an integral multiple of $1,000 principal amount1,000, on the date specified in the Fundamental Change OfferRepurchase Notice, which date shall be no earlier more than 30 days nor later than 60 thirty calendar days after the date of the Fundamental Change Offer Repurchase Notice (subject to extension to comply with applicable law) (the “Fundamental Change Repurchase Date”). The Company shall repurchase such Notes in cash at a price equal to 100% of the Principal Amount thereof (the “Fundamental Change Repurchase Price”) equal to 100% of the principal amount thereof plus any accrued and unpaid Interest to on the Notes to, but excluding not including, the Fundamental Change Repurchase Date; provided that if such . If the applicable Fundamental Change Repurchase Date falls is after a Regular Record Date and on an or prior to the corresponding Interest Payment Date, then the Interest payable on such Interest Payment Date shall be paid on such Interest Payment Date to the holders of record of the such Notes on the applicable record date instead of the holders surrendering the such Notes for repurchase on such date. In the event that at the time of a Fundamental Change that requires the Company to repurchase the Notes, the terms of the Bank Indebtedness restrict or prohibit the repurchase of Notes pursuant to this Section 3.05, then prior to the mailing of the notice to holders provided for in Section 3.05(b) below but in any event within 45 days following such Fundamental Change, the Company shall (i) repay in full all Bank Indebtedness or, if doing so will allow the repurchase of Notes, offer to repay in full all Bank Indebtedness and repay the Bank Indebtedness of each lender who has accepted such offer or (ii) obtain the requisite consent under the agreements governing the Bank Indebtedness to permit the repurchase of the Notes as provided for in this Section 3.05. Notwithstanding the provisions of the immediately preceding paragraph, the Company shall not be required to repurchase any Notes of Holders upon a Fundamental Change (and the Company shall not be required to give notice as described in Section 3.05(b) below) if either: (i) the Last Reported Sale Price of the Common Stock for any five Trading Days within the 10 consecutive Trading Days ending immediately before the later of the Fundamental Change or the public announcement thereof, equals or exceeds 105% of the Conversion Price of the Notes immediately before the Fundamental Change or the public announcement thereof; or (ii) at least 90% of the consideration, excluding cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights, in the transaction or transactions constituting the Fundamental Change consists of shares of capital stock traded on a U.S. national securities exchange or quoted on the Nasdaq National Market or which will be so traded or quoted when issued or exchanged in connection with a Fundamental Change (these securities being referred to as “publicly traded securities”) and as a result of this transaction or transactions the Notes become convertible into such publicly traded securities. (b) Except as provided by Section 3.05(a), on On or before the 45th thirtieth calendar day after the occurrence of a Fundamental Change, the Company, or at its written request the Trustee in the name of and at the expense of the Company (which request must be received by the Trustee at least three five Business Days prior to the date the Trustee is requested to give notice as described below, unless the Trustee shall agree to a shorter period), shall mail or cause to be mailed, by first class mail, to all holders of record on such date a notice (which notice shall be prepared by the Company) (the “Fundamental Change OfferRepurchase Notice”) of the occurrence of such Fundamental Change and of the repurchase right at the option of the holders arising as a result thereof to each holder of Notes at its last address as the same appears on the Note Register, and to beneficial owners as required by applicable law; provided that if the Company shall give such notice, it shall also give written notice of the Fundamental Change to the Trustee and Paying Agent, if other than the Trustee, at such time as it is mailed to Noteholders. Such notice, if mailed in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. Each Fundamental Change Offer Repurchase Notice shall state, among other things: (i) the events causing the Fundamental Change; (ii) the date of the Fundamental Change; (iii) the last date on which a holder may exercise the repurchase right; (iv) the Fundamental Change Repurchase Price, excluding accrued and unpaid Interest, the applicable Conversion Rate at the time of such notice (and any applicable adjustments to the Conversion Rate) Price and, to the extent known at the time of such notice, the amount of Interest that will be payable with respect to the Notes on to, but not including, the Fundamental Change Repurchase Date; (ii) the events causing the Fundamental Change and the date of the Fundamental Change; (iiiv) the Fundamental Change Repurchase Date; (iv) the last date on which a holder may exercise the repurchase right; (vvi) the name and address of the Paying Agent and the Conversion Agent, if the Notes are then convertible in accordance with Section 15.01; (vivii) if the Notes are then convertible in accordance with Section 15.01, the applicable Conversion Rate at the time of such notice (and any applicable adjustments to the applicable Conversion Rate); (viii) if the Notes are then convertible in accordance with Section 15.01, that Notes as to which a Fundamental Change Repurchase Election has been given by the holder may be converted only if the election has been withdrawn by the holder in accordance with the terms of this Indenture; provided that the Notes are otherwise convertible in accordance with Section 15.01; (viiix) that the holder shall have the right to withdraw any Notes surrendered prior to the close of business 5:00 p.m., New York City time, on the Business Day immediately preceding the Fundamental Change Repurchase Date (or any such later time as may be required by applicable law); (viiix) a description of the procedure procedures which a Noteholder must follow to exercise such repurchase right or to withdraw any surrendered Notes; (ixxi) the CUSIP CUSIP, ISIN or similar number or numbers of the Notes (subject to Section 2.09 and if then generally in use); and (xxii) briefly, the conversion rights of the Notes and whether, at holders of the time of such notice, the Notes are eligible for conversionNotes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 3.05. (c) Notes shall be repurchased pursuant to this Section 3.05 at the option of the holder upon: (i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (a “Fundamental Change Repurchase Election”) in the form set forth on the reverse of the Note at any time prior to the close of business 5:00 p.m., New York City time, on the Business Day immediately preceding the Fundamental Change Repurchase Date Date, which is subject to extension to comply with applicable law, stating: (A) if certificatedcertificated notes have been issued, the certificate numbers of the Notes which the holder shall deliver to be repurchased; (B) the portion of the principal amount Principal Amount of the Notes that the holder shall deliver to be repurchased, which portion must be $1,000 or an integral multiple thereof, ; and (C) that such Notes shall be repurchased by the Company as of the Fundamental Change Repurchase Date pursuant to the terms and conditions specified in the Notes and in the Indenture; and (ii) physical delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) simultaneously with or at any time after delivery of the Fundamental Change Repurchase Election (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of ManhattanAgent, such delivery or transfer being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 3.05 only if the Notes so delivered or transferred to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Election. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Note for repurchase shall be determined by the Company, whose determination shall be final and binding absent manifest error. (d) Notwithstanding . If the foregoing provisions Notes are not in certificated form, holders must provide notice of this Section, the Company shall not be required to make a Fundamental Change Offer upon a Fundamental Change if a third party makes the Fundamental Change Offer their election in the manner, at the times and otherwise in compliance accordance with the requirements set forth in Section 3.05(b) applicable to a Fundamental Change Offer made by appropriate procedures of the Company and purchases all Notes validly tendered and not withdrawn under such Fundamental Change OfferDepositary.

Repurchase of Notes by the Company at Option of Holders upon a Fundamental Change. (a) If a Fundamental Change shall occur at any time prior to Stated Maturity, each holder shall have the right, at such holder’s 's option, to require the Company to repurchase for cash all or a portion of such holder’s 's Notes, or any portion of the Principal Amount thereof that is a equal to $1,000 or an integral multiple of $1,000 principal amount1,000, on the date specified in the Fundamental Change OfferRepurchase Notice, which date shall be no earlier more than 30 days nor later than 60 days Business Days after the date of the Fundamental Change Offer Repurchase Notice (subject to extension to comply with applicable law) (the “Fundamental Change Repurchase Date”"FUNDAMENTAL CHANGE REPURCHASE DATE"). The Company shall repurchase such Notes in cash at a price (the “Fundamental Change Repurchase Price”) equal to 100% of the principal amount Principal Amount thereof (the "FUNDAMENTAL CHANGE REPURCHASE PRICE") plus any accrued and unpaid Interest to on the Notes to, but excluding not including, the Fundamental Change Repurchase Date; provided that if such . If the applicable Fundamental Change Repurchase Date falls is after a Regular Record Date and on an or prior to the corresponding Interest Payment Date, then the Interest payable on such Interest Payment Date shall be paid on such Interest Payment Date to the holders of record of the such Notes on the applicable record date instead of the holders surrendering the such Notes for repurchase on such date. In the event that at the time of a Fundamental Change that requires the Company to repurchase the Notes, the terms of the Bank Indebtedness restrict or prohibit the repurchase of Notes pursuant to this Section 3.05, then prior to the mailing of the notice to holders provided for in Section 3.05(b) below but in any event within 45 days following such Fundamental Change, the Company shall (i) repay in full all Bank Indebtedness or, if doing so will allow the repurchase of Notes, offer to repay in full all Bank Indebtedness and repay the Bank Indebtedness of each lender who has accepted such offer or (ii) obtain the requisite consent under the agreements governing the Bank Indebtedness to permit the repurchase of the Notes as provided for in this Section 3.05. Notwithstanding the provisions of the immediately preceding paragraph, the Company shall not be required to repurchase any Notes of Holders upon a Fundamental Change (and the Company shall not be required to give notice as described in Section 3.05(b) below) if either: (i) the Last Reported Sale Price of the Common Stock for any five Trading Days within the 10 consecutive Trading Days ending immediately before the later of the Fundamental Change or the public announcement thereof, equals or exceeds 105% of the Conversion Price of the Notes immediately before the Fundamental Change or the public announcement thereof; or (ii) at least 90% of the consideration, excluding cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights, in the transaction or transactions constituting the Fundamental Change consists of shares of capital stock traded on a U.S. national securities exchange or quoted on the Nasdaq National Market or which will be so traded or quoted when issued or exchanged in connection with a Fundamental Change (these securities being referred to as “publicly traded securities”) and as a result of this transaction or transactions the Notes become convertible into such publicly traded securities. (b) Except as provided by Section 3.05(a), on On or before the 45th 30th calendar day after the occurrence of a Fundamental Change, the Company, or at its written request the Trustee in the name of and at the expense of the Company (which request must be received by the Trustee at least three five Business Days prior to the date the Trustee is requested to give notice as described below, unless the Trustee shall agree to a shorter period), shall mail or cause to be mailed, by first class mail, to all holders of record on such date a notice (which notice shall be prepared by the “Fundamental Change Offer”Company) (the "FUNDAMENTAL CHANGE REPURCHASE NOTICE") of the occurrence of such Fundamental Change and of the repurchase right at the option of the holders arising as a result thereof to each holder of Notes at its last address as the same appears on the Note Register, and the Company shall also provide notification thereof in the manner contemplated by Section 14.01(c) to beneficial owners as required by applicable law; provided that if the Company shall give such notice, it shall also give written notice of the Fundamental Change to the Trustee and Paying Agent, if other than the Trustee, at such time as it is mailed to Noteholders. Such notice, if mailed in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. Each Fundamental Change Offer Repurchase Notice shall state, among other things: (i) the events causing the Fundamental Change; (ii) the date of the Fundamental Change; (iii) the last date on which a holder may exercise the repurchase right; (iv) the Fundamental Change Repurchase Price, excluding accrued and unpaid Interest, the applicable Conversion Rate at the time of such notice (and any applicable adjustments to the Conversion Rate) Price and, to the extent known at the time of such notice, the amount of Interest that will be payable with respect to the Notes on to, but not including, the Fundamental Change Repurchase Date; (ii) the events causing the Fundamental Change and the date of the Fundamental Change; (iiiv) the Fundamental Change Repurchase Date; (iv) the last date on which a holder may exercise the repurchase right; (vvi) the name and address of the Paying Agent and the Conversion Exchange Agent, if the Notes are then exchangeable in accordance with Section 14.01; (vivii) if the Notes are then exchangeable in accordance with Section 14.01, the applicable Exchange Rate at the time of such notice (and any applicable adjustments to the applicable Exchange Rate); (viii) if the Notes are then exchangeable in accordance with Section 14.01, that Notes as to which a Fundamental Change Repurchase Election has been given by the holder may be converted exchanged only if the election has been withdrawn by the holder in accordance with the terms of this Indenture; provided that the Notes are otherwise convertible in accordance with Section 15.01; (viiix) that the holder shall have the right to withdraw any Notes surrendered prior to the close of business 5:00 p.m., New York City time, on the Business Day immediately preceding the Fundamental Change Repurchase Date (or any such later time as may be required by applicable law); (viiix) a description of the procedure procedures which a Noteholder must follow to exercise such repurchase right or to withdraw any surrendered Notes; (ixxi) the CUSIP CUSIP, ISIN or similar number or numbers of the Notes (subject to Section 2.09 and if then generally in use); and (xxii) briefly, the conversion exchange rights of the Notes and whether, at holders of the time of such notice, the Notes are eligible for conversionNotes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Noteholders’ ' repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 3.053.04. (c) Notes shall be repurchased pursuant to this Section 3.05 3.04 at the option of the holder upon: (i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (a “Fundamental Change Repurchase Election”"FUNDAMENTAL CHANGE REPURCHASE ELECTION") in the form set forth on the reverse of the Note at any time prior to the close of business 5:00 p.m., New York City time, on the Business Day immediately preceding the Fundamental Change Repurchase Date Date, which is subject to extension to comply with applicable law, stating: (A) if certificatedcertificated notes have been issued, the certificate numbers of the Notes which the holder shall deliver to be repurchased; (B) the portion of the principal amount Principal Amount of the Notes that the holder shall deliver to be repurchased, which portion must be $1,000 or an integral multiple thereof, ; and (C) that such Notes shall be repurchased by the Company as of the Fundamental Change Repurchase Date pursuant to the terms and conditions specified in the Notes and in the Indenture; and (ii) physical delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) simultaneously with or at any time after delivery of the Fundamental Change Repurchase Election (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of ManhattanAgent, such delivery or transfer being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 3.05 3.04 only if the Notes so delivered or transferred to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Election. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Note for repurchase shall be determined by the Company, whose determination shall be final and binding absent manifest error. (d) Notwithstanding . If the foregoing provisions Notes are not in certificated form, holders must provide notice of this Section, the Company shall not be required to make a Fundamental Change Offer upon a Fundamental Change if a third party makes the Fundamental Change Offer their election in the manner, at the times and otherwise in compliance accordance with the requirements set forth in Section 3.05(b) applicable to a Fundamental Change Offer made by appropriate procedures of the Company and purchases all Notes validly tendered and not withdrawn under such Fundamental Change OfferDepositary.

Repurchase of Notes by the Company at Option of Holders upon a Fundamental Change. (a) If Subject to Section 3.07(f), if a Fundamental Change shall occur at any time prior to Stated Maturity, each holder shall have the right, at such holder’s 's option, to require the Company to repurchase in cash all of such holder’s 's Notes, or any portion thereof that is a multiple of $1,000 principal amount, on the date specified in the Fundamental Change Offer, which date shall be no earlier more than 30 days nor later than 60 days after the date of the Fundamental Change Offer (subject to extension to comply with applicable law) (the “"Fundamental Change Repurchase Date”"). The Company shall repurchase such Notes in cash at a price (the “"Fundamental Change Repurchase Price”") equal to 100% of the principal amount thereof plus any accrued and unpaid Interest to to, but excluding excluding, the Fundamental Change Repurchase Date; provided that if such Fundamental Change Repurchase Date falls on an Interest Payment Date, then the Interest payable on such Interest Payment Date shall be paid to the holders of record of the Notes on the applicable record date instead of the holders surrendering the Notes for repurchase on such date. In the event that at the time of a Fundamental Change that requires the Company to repurchase the Notes, the terms of the Bank Indebtedness restrict or prohibit the repurchase of Notes pursuant to this Section 3.05, then prior to the mailing of the notice to holders provided for in Section 3.05(b) below but in any event within 45 days following such Fundamental Change, the Company shall (i) repay in full all Bank Indebtedness or, if doing so will allow the repurchase of Notes, offer to repay in full all Bank Indebtedness and repay the Bank Indebtedness of each lender who has accepted such offer or (ii) obtain the requisite consent under the agreements governing the Bank Indebtedness to permit the repurchase of the Notes as provided for in this Section 3.05. Notwithstanding the provisions of the immediately preceding paragraph, the Company shall not be required to repurchase any Notes of Holders upon a Fundamental Change (and the Company shall not be required to give notice as described in Section 3.05(b) below) if either: (i) the Last Reported Sale Price of the Common Stock for any five Trading Days within the 10 consecutive Trading Days ending immediately before the later of the Fundamental Change or the public announcement thereof, equals or exceeds 105% of the Conversion Price of the Notes immediately before the Fundamental Change or the public announcement thereof; or (ii) at least 90% of the consideration, excluding cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights, in the transaction or transactions constituting the Fundamental Change consists of shares of capital stock traded on a U.S. national securities exchange or quoted on the Nasdaq National Market or which will be so traded or quoted when issued or exchanged in connection with a Fundamental Change (these securities being referred to as “publicly traded securities”) and as a result of this transaction or transactions the Notes become convertible into such publicly traded securities. (b) Except as provided by Section 3.05(a), on On or before the 45th 15th day after the occurrence of a Fundamental Change, the Company, or at its written request the Trustee in the name of and at the expense of the Company (which request must be received by the Trustee at least three five Business Days prior to the date the Trustee is requested to give notice as described below, unless the Trustee shall agree to a shorter period), shall mail or cause to be mailed, by first class mail, to all holders of record on such date a notice (the “"Fundamental Change Offer”") of the occurrence of such Fundamental Change and of the repurchase right at the option of the holders arising as a result thereof to each holder of Notes at its last address as the same appears on the Note Register; provided that if the Company shall give such notice, it shall also give written notice of the Fundamental Change to the Trustee and the Paying Agent at such time as it is mailed to Noteholders. Such notice, if mailed in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. Each Fundamental Change Offer shall state: (i) the events causing the Fundamental Change and the date of the Fundamental Change; (ii) the Fundamental Change Repurchase Date; (iii) the last date on which a holder may exercise the repurchase right; (iv) the Fundamental Change Repurchase Price, excluding any accrued and unpaid Interest, the applicable Conversion Rate at the time of such notice (and any applicable adjustments to the Conversion Rate) and, to the extent known at the time of such notice, the amount of Interest that will be payable with respect to the Notes on the Fundamental Change Repurchase Date; (ii) the events causing the Fundamental Change and the date of the Fundamental Change; (iii) the Fundamental Change Repurchase Date; (iv) the last date on which a holder may exercise the repurchase right; (v) the name and address of the Paying Agent and the Conversion Agent; (vi) briefly, the conversion rights of the Notes and whether, at the time of such notice, the Notes are eligible for conversion; (vii) that Notes as to which a Fundamental Change Repurchase Election has been given by the holder may be converted only if the election has been withdrawn by the holder in accordance with the terms of this Indenture; provided that the Notes are otherwise convertible in accordance with Section 15.01; (viiviii) a description of the procedures which a Noteholder must follow to exercise such repurchase right or to withdraw any surrendered Notes; (ix) that the holder shall have the right to withdraw any Notes surrendered prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date (or any such later time as may be required by applicable law);; and (viii) a description of the procedure which a Noteholder must follow to exercise such repurchase right or to withdraw any surrendered Notes; (ixx) the CUSIP number or numbers of the Notes (subject to Section 2.09 and if then generally in use); and (x) briefly, the conversion rights of the Notes and whether, at the time of such notice, the Notes are eligible for conversion. No failure of the Company to give the foregoing notices and no defect therein shall limit the Noteholders’ ' repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 3.05. (c) Notes shall be repurchased pursuant to this Section 3.05 at the option of the holder upon: (i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (a “"Fundamental Change Repurchase Election”") in the form set forth on the reverse of the Note at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date stating: (A) if certificated, the certificate numbers of the Notes which the holder shall deliver to be repurchased; (B) if not certificated, such information as is required by the Depositary's procedures; (C) the portion of the principal amount of the Notes that the holder shall deliver to be repurchased, which portion must be $1,000 or an integral multiple thereof, and (CD) that such Notes shall be repurchased as of the Fundamental Change Repurchase Date pursuant to the terms and conditions specified in the Notes and in the Indenture; and. (ii) physical delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) simultaneously with or at any time after delivery of the Fundamental Change Repurchase Election (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery or transfer being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 3.05 only if the Notes so delivered or transferred to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Election. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Note for repurchase shall be determined by the Company, whose determination shall be final and binding absent manifest error. (d) Notwithstanding the foregoing provisions of this Section, the The Company shall not be required to make a Fundamental Change Offer upon a Fundamental Change if may arrange for a third party makes the to purchase any Notes for which it receives a valid Fundamental Change Offer Repurchase Election that is not withdrawn, in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 3.05(b) applicable 3.05. If a third party purchases any Notes under these circumstances, then Interest will continue to accrue on such Notes and such Notes shall continue to be outstanding after the Fundamental Change Repurchase Date. If the Holder who has delivered a Fundamental Change Offer made Repurchase Election fails to deliver the Notes to the third party on or before the Fundamental Change Repurchase Date, then the third party that intended to repurchase the Notes will be released from its obligations to do so and the Holder who delivered such Fundamental Change Repurchase Election but failed to deliver the Notes will have no further rights hereunder or under the Notes to require repurchase by the Company and purchases all Notes validly tendered and not withdrawn under such or by the third party with respect to that Fundamental Change OfferRepurchase Election.

Repurchase of Notes by the Company at Option of Holders upon a Fundamental Change. (a) If a Fundamental Change shall occur at any time prior to Stated Maturity, each holder shall have the right, at such holder’s option, to require the Company to repurchase all of such holder’s Notes, or any portion thereof that is a multiple of $1,000 principal amount, on the date specified in the Fundamental Change Offer, which date shall be no earlier than 30 days nor later than 60 days after the date of the Fundamental Change Offer (subject to extension to comply with applicable law) (the “Fundamental Change Repurchase Date”). The Company shall repurchase such Notes in cash at a price (the “Fundamental Change Repurchase Price”) equal to 100% of the principal amount thereof plus any accrued and unpaid Interest to but excluding the Fundamental Change Repurchase Date; provided that if such Fundamental Change Repurchase Date falls on an Interest Payment Date, then the Interest payable on such Interest Payment Date shall be paid to the holders of record of the Notes on the applicable record date instead of the holders surrendering the Notes for repurchase on such date. In the event that at the time of a Fundamental Change that requires the Company to repurchase the Notes, the terms of the Bank Indebtedness restrict or prohibit the repurchase of Notes pursuant to this Section 3.053.01, then prior to the mailing of the notice to holders provided for in Section 3.05(b3.01(b) below but in any event within 45 days following such Fundamental Change, the Company shall (i) repay in full all Bank Indebtedness or, if doing so will allow the repurchase of Notes, offer to repay in full all Bank Indebtedness and repay the Bank Indebtedness of each lender who has accepted such offer or (ii) obtain the requisite consent under the agreements governing the Bank Indebtedness to permit the repurchase of the Notes as provided for in this Section 3.053.01. Notwithstanding the provisions of the immediately preceding paragraph, the Company shall not be required to repurchase any Notes of Holders upon a Fundamental Change (and the Company shall not be required to give notice as described in Section 3.05(b3.01(b) below) if either: (i) the Last Reported Sale Price of the Common Stock for any five Trading Days within the 10 consecutive Trading Days ending immediately before the later of the Fundamental Change or the public announcement thereof, equals or exceeds 105% of the Conversion Price of the Notes immediately before the Fundamental Change or the public announcement thereof; or (ii) at least 90% of the consideration, excluding cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights, in the transaction or transactions constituting the Fundamental Change consists of shares of capital stock traded on a U.S. national securities exchange or quoted on the Nasdaq National Global Market or which will be so traded or quoted when issued or exchanged in connection with a Fundamental Change (these securities being referred to as “publicly traded securities”) and as a result of this transaction or transactions the Notes become convertible into such publicly traded securities. (b) Except as provided by Section 3.05(a3.01(a), on or before the 45th day after the occurrence of a Fundamental Change, the Company, or at its written request the Trustee in the name of and at the expense of the Company (which request must be received by the Trustee at least three Business Days prior to the date the Trustee is requested to give notice as described below, unless the Trustee shall agree to a shorter period), shall mail or cause to be mailed, by first class mail, to all holders of record on such date a notice (the “Fundamental Change Offer”) of the occurrence of such Fundamental Change and of the repurchase right at the option of the holders arising as a result thereof to each holder of Notes at its last address as the same appears on the Note Register; provided that if the Company shall give such notice, it shall also give written notice of the Fundamental Change to the Trustee at such time as it is mailed to Noteholders. Such notice, if mailed in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. Each Fundamental Change Offer shall state: (i) the Fundamental Change Repurchase Price, excluding accrued and unpaid Interest, the applicable Conversion Rate at the time of such notice (and any applicable adjustments to the Conversion Rate) and, to the extent known at the time of such notice, the amount of Interest that will be payable with respect to the Notes on the Fundamental Change Repurchase Date; (ii) the events causing the Fundamental Change and the date of the Fundamental Change; (iii) the Fundamental Change Repurchase Date; (iv) the last date on which a holder may exercise the repurchase right; (v) the name and address of the Paying Agent and the Conversion Agent; (vi) that Notes as to which a Fundamental Change Repurchase Election has been given by the holder may be converted only if the election has been withdrawn by the holder in accordance with the terms of this Indenture; provided that the Notes are otherwise convertible in accordance with Section 15.0114.01; (vii) that the holder shall have the right to withdraw any Notes surrendered prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date (or any such later time as may be required by applicable law); (viii) a description of the procedure which a Noteholder must follow to exercise such repurchase right or to withdraw any surrendered Notes; (ix) the CUSIP number or numbers of the Notes (subject to Section 2.09 and if then generally in use); and (x) briefly, the conversion rights of the Notes and whether, at the time of such notice, the Notes are eligible for conversion. No failure of the Company to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 3.053.01. (c) Notes shall be repurchased pursuant to this Section 3.05 3.01 at the option of the holder upon: (i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (a “Fundamental Change Repurchase Election”) in the form set forth on the reverse of the Note at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date stating: (A) if certificated, the certificate numbers of the Notes which the holder shall deliver to be repurchased; (B) the portion of the principal amount of the Notes that the holder shall deliver to be repurchased, which portion must be $1,000 or an integral multiple thereof, and (C) that such Notes shall be repurchased as of the Fundamental Change Repurchase Date pursuant to the terms and conditions specified in the Notes and in the Indenture; and (ii) physical delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) simultaneously with or at any time after delivery of the Fundamental Change Repurchase Election (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery or transfer being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 3.05 3.01 only if the Notes so delivered or transferred to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Election. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Note for repurchase shall be determined by the Company, whose determination shall be final and binding absent manifest error. (d) Notwithstanding the foregoing provisions of this Section, the Company shall not be required to make a Fundamental Change Offer upon a Fundamental Change if a third party makes the Fundamental Change Offer in the manner, at the times and otherwise in compliance with the requirements set forth in Section 3.05(b3.01(b) applicable to a Fundamental Change Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Fundamental Change Offer.