Common use of Convertible Notes Clause in Contracts

Convertible Notes. (a) Immediately prior to the Closing, Parent or its Affiliates then holding Convertible Notes (the “Convertible Note Holders”) shall cause all of the outstanding Convertible Notes , other than the portion thereof to be purchased by the Company as contemplated by the next sentence, to be contributed to Parent (or another Affiliate thereof), and Parent agrees (and shall cause each of the Convertible Note Holders to agree) that, following such contribution and notwithstanding anything to the contrary contained in the Convertible Notes Indenture, the Convertible Note Holders shall no longer be entitled or permitted to exercise the Fundamental Change Repurchase Right (as such term is defined in the Convertible Notes Indenture) under the Convertible Notes Indenture, nor to trigger or exercise the Conversion Obligation (as such term is defined in the Convertible Notes Indenture) under the Convertible Notes Indenture, in respect of the Convertible Notes so contributed; provided that such limitation on exercise of Fundamental Change Repurchase Right or conversion will not apply if the Closing does not occur. Immediately prior to the Closing (the “Convertible Notes Cash Payment Time”) and subject to Parent’s timely delivery of the notification set forth in the next sentence, the Company shall purchase from Parent or its Affiliates a portion of the Convertible Notes, in an amount to be specified by Parent, for cash at the Fundamental Change Repurchase Price (as such term is defined in the Convertible Notes Indenture); provided that the aggregate amount of cash to be paid by the Company to repurchase such portion of the Convertible Notes (the “Convertible Notes Cash Payment Amount”) shall not exceed $130,000,000 (the “Convertible Notes Cash Payment Cap”). Parent shall notify the Company in writing of the amount of the Convertible Notes to be so purchased at least five (5) Business Days prior to the Closing Date. Parent and the Company will cooperate, and in the case of Parent, Parent will cause its applicable Affiliates to cooperate, in good faith with respect to the parties’ obligations under this Section 6.18(a), including, as appropriate, the entry into of any supplemental indenture, amendment or similar agreement with respect to the Convertible Notes Indenture. (b) Prior to the Closing Date, Parent, Merger Sub and the Company shall, as and to the extent required by the Convertible Notes Documents, use reasonable best efforts to execute, and use reasonable best efforts to cause the Trustee to execute, any supplemental indenture(s) required by the Convertible Notes Documents in connection with the Merger and other transactions contemplated by this Agreement and deliver any certificates and other documents required by the Convertible Notes Documents to be delivered by such persons in connection with the Merger and other transactions contemplated by this Agreement. Prior to the Effective Time, the Company shall give any notices and take all actions required under the terms of the Convertible Notes Documents in connection with the Merger and other transactions contemplated by this Agreement. (c) The Company shall provide Parent and its counsel at least three (3) Business Days to review and comment on any notices, certificates, press releases, supplemental indentures, or other documents or instruments deliverable pursuant to the Convertible Notes Documents prior to the dispatch or making thereof and shall incorporate all reasonable comments provided by Parent and its counsel with respect thereto.

Convertible Notes. (a) Immediately prior to Following the Closing, Parent or its Affiliates then holding Convertible Notes (the “Convertible Note Holders”) shall cause all public announcement of the outstanding Convertible Notes , other than the portion thereof to be purchased by the Company as contemplated by the next sentence, to be contributed to Parent (or another Affiliate thereof), and Parent agrees (and shall cause each of the Convertible Note Holders to agree) that, following such contribution and notwithstanding anything to the contrary contained in the Convertible Notes Indenture, the Convertible Note Holders shall no longer be entitled or permitted to exercise the Fundamental Change Repurchase Right (as such term is defined in the Convertible Notes Indenture) under the Convertible Notes Indenture, nor to trigger or exercise the Conversion Obligation (as such term is defined in the Convertible Notes Indenture) under the Convertible Notes Indenture, in respect of the Convertible Notes so contributed; provided that such limitation on exercise of Fundamental Change Repurchase Right or conversion will not apply if the Closing does not occur. Immediately prior to the Closing (the “Convertible Notes Cash Payment Time”) and subject to Parent’s timely delivery of the notification set forth in the next sentencethis Agreement, the Company shall purchase from Parent or its Affiliates a portion give notice of the Convertible Notes, in an amount to be specified by Parent, for cash at the Fundamental Change Repurchase Price (as such term is defined in the Convertible Notes Indenture); provided that the aggregate amount of cash to be paid by the Company to repurchase such portion of the Convertible Notes (the “Convertible Notes Cash Payment Amount”) shall not exceed $130,000,000 (the “Convertible Notes Cash Payment Cap”). Parent shall notify the Company in writing of the amount of the Convertible Notes to be so purchased at least five (5) Business Days prior to the Closing Date. Parent and the Company will cooperate, and in the case of Parent, Parent will cause its applicable Affiliates to cooperate, in good faith with respect to the parties’ obligations under this Section 6.18(a), including, as appropriate, the entry into of any supplemental indenture, amendment or similar agreement with respect to the Convertible Notes Indenture. (b) Prior to the Closing Date, Parent, Merger Sub and the Company shall, as and to the extent required by the Convertible Notes Documents, use reasonable best efforts to execute, and use reasonable best efforts to cause the Trustee to execute, any supplemental indenture(s) required by the Convertible Notes Documents in connection with the Merger and other transactions contemplated by this Agreement and deliver any certificates and other documents required by to each holder of the Convertible Notes Documents pursuant to be delivered by the terms of the Convertible Notes. Promptly after the Acceptance Time, Parent shall cause the Company to provide each holder of the Convertible Notes with written notice providing that such persons holder has the opportunity to convert some or all of its Convertible Notes into the right to receive an amount of cash equal to the Change in connection with Control Redemption Price (as defined in the Merger Convertible Notes). Parent shall cause the Company to deliver such change of control notice to each holder of the Convertible Notes not less than 30 and other transactions contemplated by this Agreementnot more than 60 days prior to the redemption date specified therein. Prior to Thereafter, Parent (or after the Effective Time, the Company Surviving Corporation) shall give pay to each holder that so elects in writing the Change in Control Redemption Price in the manner provided in the Convertible Notes. To the extent a holder of a Convertible Note does not elect to have its Convertible Note redeemed, such Convertible Notes shall remain outstanding and, if any notices time after the Effective Time and take all actions required under prior to the terms of expiration date thereof, the Convertible Notes Documents are converted in connection accordance with their terms, the holder thereof shall have the right to receive, for each share of Common Stock that would have been issuable upon such conversion absent the Merger, the Merger and other transactions contemplated by this Agreement. (c) The Company shall provide Parent and its counsel at least three (3) Business Days Consideration such holder would have been entitled to review and comment on any notices, certificates, press releases, supplemental indentures, or other documents or instruments deliverable pursuant to receive upon the consummation of the Merger if it had converted such Convertible Notes Documents Note immediately prior to the dispatch or making thereof and shall incorporate all reasonable comments provided by Parent and its counsel with respect theretoMerger.

Convertible Notes. (a) Immediately Following the date hereof and at any time prior to the Offer Closing, Parent shall, or its Affiliates then holding Convertible Notes shall cause Purchaser to, commence a tender offer (the “Convertible Note HoldersNotes Offer”) shall cause for all of the outstanding Convertible Notes , other than the portion thereof on such terms and subject to be purchased such conditions as are determined by the Company as contemplated by the next sentence, to be contributed to Parent (or another Affiliate thereof), and Parent agrees (and shall cause each of the Convertible Note Holders to agree) that, following such contribution and notwithstanding anything to the contrary contained in the Convertible Notes Indenture, the Convertible Note Holders shall no longer be entitled or permitted to exercise the Fundamental Change Repurchase Right (as such term is defined in the Convertible Notes Indenture) under the Convertible Notes Indenture, nor to trigger or exercise the Conversion Obligation (as such term is defined in the Convertible Notes Indenture) under the Convertible Notes Indenture, in respect of the Convertible Notes so contributed; provided that such limitation on exercise of Fundamental Change Repurchase Right or conversion will not apply if the Closing does not occur. Immediately prior to the Closing its absolute discretion (the “Convertible Notes Cash Payment TimeOffer Conditions”). The Company shall provide, and shall cause its Subsidiaries and Representatives to provide, all cooperation reasonably requested by Parent in connection with the Convertible Notes Offer, including, without limitation, (i) as set forth in Section 4.7(b) and subject to Parent’s timely (ii) the delivery of the notification set forth Company’s position with respect to the Convertible Notes Offer pursuant to and in accordance with Rule 14e-2 under the next Exchange Act. Subject only to the following sentence, Parent and Purchaser expressly reserve the Company shall purchase from Parent right (in their sole discretion) (x) to waive, in whole or its Affiliates a portion in part, any Convertible Note Tender Offer Condition, (y) to amend, modify or supplement the terms of the Convertible NotesNotes Tender Offer (including any Convertible Note Tender Offer Condition) or (z) to withdraw, in an amount to be specified by Parent, for cash at the Fundamental Change Repurchase Price (as such term is defined in terminate or extend the Convertible Notes Indenture); provided that Tender Offer. The Convertible Notes Offer and other actions taken in connection therewith shall be conducted in accordance with the aggregate amount Exchange Act, all applicable rules and regulations of cash the SEC and other applicable Law. (b) Parent shall prepare all necessary and appropriate documentation in connection with the Convertible Notes Offer (including all mailings to be paid by the Company to repurchase such portion holders of the Convertible Notes (the “Company Convertible Notes Cash Payment AmountNoteholders”) shall not exceed $130,000,000 ), including an offer to purchase, letter of transmittal and a notice of guaranteed delivery, all SEC filings and any supplements or amendments thereto (the “Convertible Notes Cash Payment CapOffer Documents”)). The Company shall promptly furnish to Parent shall notify and Purchaser all information concerning the Company that is required by applicable Law to be set forth in writing of the amount Convertible Notes Offer Documents or that is otherwise reasonably requested by Parent or Purchaser for inclusion in the Convertible Notes Offer Documents or in connection with the obligations relating to the Convertible Notes Offer Documents contained in this Section 4.7(b). Prior to the filing of the Convertible Notes Offer Documents (including any amendments or supplements thereto) with the SEC or dissemination thereof to the Company Convertible Noteholders, the Company and its counsel shall be so purchased given a reasonable opportunity to review and comment on such Convertible Notes Offer Documents. If at least five (5) Business Days any time prior to the Closing Date. Parent and completion of the Company will cooperate, and Convertible Notes Offer any information in the case of ParentConvertible Notes Offer Documents should be discovered by Parent or Purchaser, Parent will cause its applicable Affiliates to cooperateon the one hand, or the Company, on the other hand, which should be set forth in good faith with respect to the parties’ obligations under this Section 6.18(a), including, as appropriate, the entry into of any supplemental indenture, an amendment or similar agreement with respect supplement to the Convertible Notes Indenture. (b) Prior to the Closing DateOffer Documents, Parent, Merger Sub and the Company shall, as and to the extent required by so that the Convertible Notes DocumentsOffer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, use reasonable best efforts to executein light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other parties, and use reasonable best efforts to cause the Trustee to execute, any supplemental indenture(s) required an appropriate amendment or supplement prepared by the Convertible Notes Documents in connection with the Merger and other transactions contemplated by this Agreement and deliver any certificates and other documents required by the Convertible Notes Documents to be delivered by such persons in connection with the Merger and other transactions contemplated by this Agreement. Prior Parent (subject to the Effective Timereview of, and comment by, the Company) describing such information shall be disseminated by or on behalf of Parent, or Purchaser, as applicable, to the Company shall give any notices and take all actions required under the terms of the Convertible Notes Documents in connection with the Merger and other transactions contemplated by this AgreementNoteholders. (c) The Company shall provide Parent and its counsel at least three (3) Business Days to review and comment on any notices, certificates, press releases, supplemental indentures, or other documents or instruments deliverable take all actions that are required pursuant to the terms and provisions of the Convertible Notes Documents Indenture, including, without limitation, pursuant to Article 14 (Conversion of Notes) and Article 15 (Repurchase of Notes Upon a Fundamental Change) thereof, in connection with the Offer Closing. Without limiting the foregoing and in furtherance thereof, the Company shall, in each case in accordance with the terms and provisions of the Convertible Notes Indenture, (i) provide prior written notice to the dispatch Convertible Noteholders of the anticipated effective date of the Offer Closing and (ii) in the event that the Offer Closing constitutes a Fundamental Change, provide the Convertible Noteholders with a Fundamental Change Company Notice with respect to the Offer Closing. The Company shall elect Cash Settlement as the Settlement Method for the conversion of any and all Convertible Notes following the Closing. For the avoidance of doubt, the Company acknowledges and agrees that, to the extent permitted under the Convertible Notes Indenture, (x) the Company shall not issue or making thereof deliver Shares to any Company Noteholder in connection with the conversion of Convertible Notes at any time from and after the Offer Closing and (y) the Company shall incorporate take any and all reasonable comments provided actions under to the terms of the Convertible Notes Indenture that are necessary to comply with its obligations under this Section 4.7(c), including, without limitation, by delivering, and causing the Conversion Agent to deliver, to the Convertible Noteholders Settlement Notices specifying Cash Settlement as the Settlement Method in respect of any applicable Conversion Date. Unless otherwise defined in this Agreement, capitalized terms used in this Section 4.7(c) shall have the meanings assigned to such terms in the Convertible Notes Indenture. (d) Parent and Purchaser shall be liable for any and all expenses incurred by the Company in connection with fulfilling its counsel with respect theretoobligations pursuant to this Section 4.7.

Convertible Notes. (a) Immediately prior Prior to the Closing, Parent or its Affiliates then holding Convertible Notes (the “Convertible Note Holders”) shall cause all of the outstanding Convertible Notes , other than the portion thereof to be purchased by the Company as contemplated by the next sentence, to be contributed to Parent (or another Affiliate thereof), and Parent agrees (and shall cause each of the Convertible Note Holders to agree) that, following such contribution and notwithstanding anything to the contrary contained in the Convertible Notes Indenture, the Convertible Note Holders shall no longer be entitled or permitted to exercise the Fundamental Change Repurchase Right (as such term is defined in the Convertible Notes Indenture) under the Convertible Notes Indenture, nor to trigger or exercise the Conversion Obligation (as such term is defined in the Convertible Notes Indenture) under the Convertible Notes Indenture, in respect of the Convertible Notes so contributed; provided that such limitation on exercise of Fundamental Change Repurchase Right or conversion will not apply if the Closing does not occur. Immediately prior to the Closing (the “Convertible Notes Cash Payment Effective Time”) and subject to Parent’s timely delivery of the notification set forth in the next sentence, the Company shall purchase from Parent or its Affiliates a portion deliver any notices and take all necessary actions so that, in the event that any of the Convertible Notes, in an amount to be specified by Parent, for cash at the Fundamental Change Repurchase Price (as such term is defined in the Company’s Convertible Notes Indenture); provided that the aggregate amount of cash to be paid by the Company to repurchase such portion of the Convertible Notes (the “Convertible Notes Cash Payment Amount”) shall not exceed $130,000,000 (the “Convertible Notes Cash Payment Cap”). Parent shall notify the Company in writing of the amount of the Convertible Notes to be so purchased at least five (5) Business Days prior to the Closing Date. Parent and the Company will cooperate, and in the case of Parent, Parent will cause its applicable Affiliates to cooperate, in good faith with respect to the parties’ obligations under this Section 6.18(a), including, as appropriate, the entry into of any supplemental indenture, amendment or similar agreement with respect issued pursuant to the Convertible Notes Indenture. (b) Prior Indentures remain outstanding as of the Effective Time, the Company shall execute and deliver to the Closing Date, Parent, Merger Sub and Trustee (as defined therein) supplemental indentures to the Company shallConvertible Notes Indentures, as and to the extent required by the Convertible Notes DocumentsIndentures, use reasonable best efforts in form and substance reasonably satisfactory to executeParent, including to provide that on and after the Effective Time, each holder of Convertible Notes shall have the right to convert such Convertible Notes into the Merger Consideration in accordance with, and use reasonable best efforts to cause subject to, the Trustee to executeprovisions of the Convertible Notes Indentures governing the conversion of the Convertible Notes and all such further actions, including the delivery of any supplemental indenture(s) officers’ certificates and opinions of counsel required by the Convertible Notes Documents Indentures or other documents or instruments, as may be necessary to comply with all of the terms and conditions of the Convertible Notes Indentures in connection with the Merger and other transactions contemplated by this Agreement and deliver any certificates and other documents required by the Convertible Notes Documents to be delivered by such persons in connection with the Merger and other transactions contemplated by this AgreementTransactions. Prior to the Effective Time, the Company shall give not make any notices and take all actions required under settlement election (including, for the terms avoidance of doubt, by not delivering a Settlement Notice (as defined in the Convertible Notes Documents Indentures) with respect to any Conversion Date (as defined in connection with the Merger and other transactions contemplated by this AgreementConvertible Notes Indentures)) under the Convertible Notes Indentures without the prior written consent of Parent. (cb) The Company shall provide Parent and its counsel at least three (3) Business Days reasonable opportunity to review and comment on any notices, certificates, press releases, supplemental indentures, legal opinions, officers’ certificates or other documents or instruments deliverable pursuant to or in connection with any Convertible Notes or the Convertible Notes Documents Indenture prior to the dispatch or making thereof thereof, each of which shall be subject to the prior approval of Parent (not to be unreasonably withheld, conditioned or delayed). (c) Prior to the Effective Time, (i) the Company shall take all commercially reasonable actions, including the delivery of any notices or other documents or instruments, as may be required or contemplated by the terms of the applicable Capped Call Transaction or as reasonably requested by Parent in connection with making elections under, amending, obtaining waivers and/or unwinding or otherwise settling the Capped Call Transactions and (ii) the Company shall use its commercially reasonable efforts to cooperate with Parent in initiating or continuing any discussions, negotiations or agreements with the counterparties to the Capped Call Transactions (each, a “Hedge Counterparty”), with respect to any determination, cancelation, termination, exercise, settlement, adjustment or computation under, or in connection with the Capped Call transaction, including with respect to any Shares or cash amounts that may be payable or deliverable to the Company pursuant to the Capped Call Transactions. The Company shall promptly provide Parent with any written notices or other documents received from any Hedge Counterparty with respect to any determination, cancelation, termination, exercise, settlement, adjustment or computation under, or in connection with any discussions or negotiations related to, the Capped Call Transactions. The Company shall not, and shall incorporate cause Company Representatives not to, except as contemplated herein, enter into any discussions, negotiations or agreements in respect of the Capped Call Transactions or make any elections, amendments, modifications or other changes to the terms of the Capped Call Transactions or exercise any rights it may have to terminate or cause the early settlement, exercise or cancellation of the Capped Call Transactions, without Parent’s prior written consent (not to be unreasonably withheld, conditioned or delayed), except as required pursuant to the terms thereof (as in effect on the date of this Agreement, subject to adjustments pursuant to the terms thereof). The Company shall keep Parent informed of all reasonable comments provided by material discussions and negotiations with the Hedge Counterparties. The Company shall provide Parent and its counsel reasonable opportunity to review and comment on any material written response to any written notice or other document received from any Hedge Counterparty with respect theretoto any determination, adjustment or computation under, or in connection with any discussions or negotiations related to, the Capped Call Transactions prior to making any such response, and the Company shall (i) use its commercially reasonable efforts to promptly respond to any reasonable questions from, and (ii) consider in good faith any reasonable comments made by, Parent or its counsel with respect thereto prior to making any such response. (d) The Company shall use its commercially reasonable efforts to provide Parent and its counsel reasonable opportunity to review and comment on any written notice or communication in connection with the Capped Call Transactions prior to the dispatch or making thereof, and the Company shall (i) use its commercially reasonable efforts to promptly respond to any reasonable questions from, and (ii) consider in good faith any reasonable comments made by, Parent or its counsel with respect thereto prior to the dispatch or making thereof. (e) The Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to cause their respective representatives to cooperate with Parent in connection with the fulfillment of the Company’s obligations under the terms of the Convertible Notes and the Convertible Notes Indentures at any time after the Agreement Date as reasonably requested by Parent.

Convertible Notes. (a) Immediately prior to Parent acknowledges that the Closing, Parent or its Affiliates then holding Convertible Notes (the “Convertible Note Holders”) shall cause all consummation of the outstanding Convertible Notes , other than the portion thereof to be purchased by the Company as contemplated by the next sentence, to be contributed to Parent (or another Affiliate thereof), and Parent agrees (and shall cause each of the Convertible Note Holders to agree) that, following such contribution and notwithstanding anything to the contrary contained in the Convertible Notes Indenture, the Convertible Note Holders shall no longer be entitled or permitted to exercise the Merger will constitute a “Fundamental Change Repurchase Right (Change,” as such term is defined in Indenture dated as of November 23, 2005 (the Convertible Notes “Indenture”) under between the Convertible Notes Company and The Bank of New York Mellon Trust Company N.A., as successor in interest to JPMorgan Chase Bank, National Association, as Trustee (the “Trustee”). (a) As soon as possible, after the date of this Agreement, the Company shall enter into a supplemental indenture with the Trustee in form agreed to by Parent (the “Supplemental Indenture”) to be effective at the Effective Time. The Supplemental Indenture shall, nor among other things, amend the Indenture to trigger or exercise remove the Conversion Obligation Indenture Covenants (as such term is defined in the Consent and Conversion Agreement). (b) As soon as reasonably practical after the date hereof, the Company shall provide to each holder of the outstanding Convertible Notes a Consent and Conversion Agreement, in the forms agreed to by Parent and the Company and substantially similar to the Consent and Conversion Agreement dated as of even date herewith between the Company and Highbridge International LLC, (together, the “Consent and Conversion Agreements”). The Consent and Conversion Agreements shall provide, among other things, (i) for the payment upon conversion of a Note of the sum of the Conversion Obligation, the Consent Premium (both as defined in the Consent and Conversion Agreement), accrued but unpaid interest on such Convertible Notes and the Make Whole Premium (as defined in the Indenture) under (together, the Convertible Notes Indenture“Conversion Price”) for such Note, in respect (ii) the acknowledgement and agreement of such holders to the removal and deletion of each of the Indenture Covenants from the Indenture effective automatically upon the conversion of such holder’s Convertible Notes so contributed; provided that Notes, and (iii) for the sale of the Warrants held by such limitation on exercise of Fundamental Change Repurchase Right or conversion will not apply if the Closing does not occur. Immediately prior holder to the Closing (the “Convertible Notes Cash Payment Time”) and subject to Parent’s timely delivery Company effective as of the notification Effective Time for the price for the Warrants set forth in the next sentence, the applicable Consent and Conversion Agreement. The Company shall purchase from Parent or its Affiliates a portion of the Convertible Notes, in an amount to be specified by Parent, for cash at the Fundamental Change Repurchase Price (as such term is defined in the Convertible Notes Indenture); provided ensure that the aggregate amount of cash to be price paid by for any Note shall not exceed the Company to repurchase Conversion Price for such portion Note. The conversion of the Convertible Notes (the “Convertible Notes Cash Payment Amount”) shall not exceed $130,000,000 (the “Convertible Notes Cash Payment Cap”). Parent shall notify the Company in writing of the amount of the Convertible Notes to be so purchased at least five (5) Business Days prior to the Closing Date. Parent and the Company will cooperate, and in the case of Parent, Parent will cause its applicable Affiliates to cooperate, in good faith with respect to the parties’ obligations under this Section 6.18(a), including, as appropriate, the entry into of any supplemental indenture, amendment or similar agreement with respect to the Convertible Notes Indenture. (b) Prior to the Closing Date, Parent, Merger Sub and the Company shall, as and to the extent required by the Convertible Notes Documents, use reasonable best efforts to execute, and use reasonable best efforts to cause the Trustee to execute, any supplemental indenture(s) required by the Convertible Notes Documents payments in connection with such conversion) shall be conditioned on the Merger and other transactions contemplated by this Agreement and deliver any certificates and other documents required by occurrence of the Convertible Notes Documents to be delivered by such persons in connection with the Merger and other transactions contemplated by this AgreementClosing. Prior to the Effective Time, the Company shall give any notices and take all actions required under steps reasonably necessary upon consultation with Parent to obtain the terms Supplemental Indenture and to complete the conversion of the Convertible Notes Documents in connection with surrendered pursuant to the Merger Consent and Conversion Agreements. The Company shall not, without the consent of Parent, waive any condition to the Consent and Conversion Agreements or make any changes to the Consent and Conversion Agreements other transactions contemplated by this Agreementthan as agreed between Parent and the Company. (c) The Promptly after the date of this Agreement, the Company shall provide Parent use commercially reasonable efforts to prepare all other necessary and its counsel at least three appropriate documentation required by the Indenture in connection with the transactions contemplated herein (3) Business Days collectively, the “Note Documents”), and such Note Documents shall comply as to review form and comment on any noticessubstance with applicable legal requirements, certificatesincluding, press releasesbut not limited to, supplemental indentures, or other documents or instruments deliverable pursuant to the Convertible Notes Documents prior to requirements under the dispatch or making thereof and shall incorporate all reasonable comments provided by Parent and its counsel with respect theretoIndenture.

Convertible Notes. If (ai) Immediately any Convertible Note Shelf Registration Statement required to be filed pursuant to this Agreement is not filed with the Commission on or prior to the Closingdate specified for such filing in this Agreement, Parent (ii) any such Convertible Note Shelf Registration Statement has not been declared effective by the Commission on or prior to the Effectiveness Target Date, or (iii) the Convertible Note Shelf Registration Statement required by this Agreement is filed and declared effective but shall thereafter within the time periods specified in Section 3 or 4 of this Agreement, as applicable, cease to be effective or fail to be usable for its Affiliates intended purpose without being succeeded immediately by a post-effective amendment to such Convertible Note Shelf Registration Statement that cures such failure and that is itself declared effective for a period of more than 30 consecutive days (each such event referred to in clauses (i) through (iii), a "Convertible Note Registration ----------------------------- Default"), then holding commencing on the day following the date on which such ------- Convertible Note Registration Default occurs, the Company agrees to pay to each Holder of Transfer Restricted Convertible Notes (during the “first 90-day period immediately following the occurrence of such Convertible Registration Default, Special Interest at a rate of 0.5% per annum. The amount of Special Interest payable to each Holder shall increase by an additional 0.5% per annum for each subsequent 90-day period up to a maximum rate of 1.5% per annum. A Convertible Note Holders”) Registration Default shall cause all of the outstanding Convertible Notes cease, other than the portion thereof and Special Interest shall cease to be purchased by payable with respect to such Convertible Note Registration Default (1) upon the Company as contemplated by the next sentence, to be contributed to Parent (or another Affiliate thereof), and Parent agrees (and shall cause each filing of the Convertible Note Holders to agree) thatShelf Registration Statement, following such contribution and notwithstanding anything to the contrary contained in the Convertible Notes Indenturecase of clause (i) above, (2) upon the effectiveness of the Convertible Note Holders Shelf Registration Statement, in the case of clause (ii) above, and (3) when the Convertible Note Shelf Registration Statement becomes effective or usable in the case of clause (iii) above. Notwithstanding the foregoing to the contrary, (I) the amount of Special Interest payable shall no longer not increase because more than one Convertible Note Registration Default has occurred and is pending, (II) a Holder of Transfer Restricted Convertible Notes who is not entitled to the benefits of a Convertible Note Shelf Registration (i.e., such Holder has not elected to include Transfer Restricted Convertible Notes in such Convertible Note Shelf Registration or has failed to provide all the information required pursuant to Section 4(f) hereof) shall not be entitled or permitted to exercise the Fundamental Change Repurchase Right (as such term is defined Special Interest with respect to a Convertible Note Registration Default that pertains to a Convertible Note Shelf Registration Statement. All accrued Special Interest shall be paid to Record Holders on each Special Interest Payment Date in the Convertible Notes Indenture) under same manner in which payments of interest are made pursuant to the Convertible Notes Note Indenture, nor to trigger or exercise the Conversion Obligation (as such term is defined in the Convertible Notes Indenture) under the Convertible Notes Indenture, in respect . All obligations of the Convertible Notes so contributed; provided that such limitation on exercise of Fundamental Change Repurchase Right or conversion will not apply if the Closing does not occur. Immediately prior to the Closing (the “Convertible Notes Cash Payment Time”) and subject to Parent’s timely delivery of the notification Company set forth in the next sentence, the Company shall purchase from Parent or its Affiliates a portion of the Convertible Notes, in an amount to be specified by Parent, for cash at the Fundamental Change Repurchase Price (as such term is defined in the Convertible Notes Indenture); provided preceding paragraph that the aggregate amount of cash to be paid by the Company to repurchase such portion of the Convertible Notes (the “Convertible Notes Cash Payment Amount”) shall not exceed $130,000,000 (the “Convertible Notes Cash Payment Cap”). Parent shall notify the Company in writing of the amount of the Convertible Notes to be so purchased at least five (5) Business Days prior to the Closing Date. Parent and the Company will cooperate, and in the case of Parent, Parent will cause its applicable Affiliates to cooperate, in good faith are outstanding with respect to any Transfer Restricted Convertible Note at the parties’ time such security ceases to be a Transfer Restricted Convertible Note shall survive until such time as all such obligations under this Section 6.18(a), including, as appropriate, the entry into of any supplemental indenture, amendment or similar agreement with respect to the Convertible Notes Indenturesuch security shall have been satisfied in full. (b) Prior to the Closing Date, Parent, Merger Sub and the Company shall, as and to the extent required by the Convertible Notes Documents, use reasonable best efforts to execute, and use reasonable best efforts to cause the Trustee to execute, any supplemental indenture(s) required by the Convertible Notes Documents in connection with the Merger and other transactions contemplated by this Agreement and deliver any certificates and other documents required by the Convertible Notes Documents to be delivered by such persons in connection with the Merger and other transactions contemplated by this Agreement. Prior to the Effective Time, the Company shall give any notices and take all actions required under the terms of the Convertible Notes Documents in connection with the Merger and other transactions contemplated by this Agreement. (c) The Company shall provide Parent and its counsel at least three (3) Business Days to review and comment on any notices, certificates, press releases, supplemental indentures, or other documents or instruments deliverable pursuant to the Convertible Notes Documents prior to the dispatch or making thereof and shall incorporate all reasonable comments provided by Parent and its counsel with respect thereto.

Convertible Notes. If (ai) Immediately any Convertible Note Shelf Registration Statement required to be filed pursuant to this Agreement is not filed with the Commission on or prior to the Closingdate specified for such filing in this Agreement, Parent (ii) any such Convertible Note Shelf Registration Statement has not been declared effective by the Commission on or prior to the Effectiveness Target Date, or (iii) any Convertible Note Shelf Registration Statement required by this Agreement is filed and declared effective but shall thereafter cease to be effective or fail to be usable for its Affiliates intended purpose without being succeeded immediately by a post-effective amendment to such Convertible Note Shelf Registration Statement that cures such failure and that is itself declared effective for a period of more than 30 consecutive days (each such event referred to in clauses (i) through (iii), a "Convertible Note Registration Default"), then holding commencing on the day following the date on which such Convertible Note Registration Default occurs, the Company agrees to pay to each Holder of Transfer Restricted Convertible Notes, during the first 90-day period immediately following the occurrence of such Convertible Note Registration Default, Special Interest in an amount equal to $0.01 per week per $1,000 principal amount of the Transfer Restricted Convertible Notes (held by such Holder for so long as the “Convertible Note Holders”) Registration Default continues. The amount of Special Interest payable to each Holder shall cause all increase by an additional $0.01 per week per $1,000 principal amount of the outstanding Transfer Restricted Convertible Notes held by such Holder for each subsequent 90-day period up to a maximum of $0.5 per week per $1,000 principal amount of Transfer Restricted Convertible Notes held by such Holder. A Convertible Note Registration Default shall cease, other than the portion thereof and Special Interest shall cease to be purchased by payable with respect to such Convertible Note Registration Default (1) upon the Company as contemplated by the next sentence, to be contributed to Parent (or another Affiliate thereof), and Parent agrees (and shall cause each filing of the Convertible Note Holders to agree) thatShelf Registration Statement, following such contribution and notwithstanding anything to the contrary contained in the Convertible Notes Indenturecase of clause (i) above, (2) upon the effectiveness of the Convertible Note Holders Shelf Registration Statement, in the case of clause (ii) above, and (3) when the Convertible Note Shelf Registration Statement becomes effective or usable in the case of clause (iii) above. Notwithstanding the foregoing to the contrary, (I) the amount of Special Interest payable shall no longer not increase because more than one Convertible Note Registration Defaults have occurred and are pending and (II) a Holder of Transfer Restricted Convertible Notes who is not entitled to the benefits of a Convertible Note Shelf Registration (i.e., such Holder has not elected to include Transfer Restricted Convertible Notes in such Convertible Notes Shelf Registration or has failed to provide all the information required pursuant to Section 4(f) hereof) shall not be entitled or permitted to exercise the Fundamental Change Repurchase Right (as such term is defined Special Interest with respect to a Convertible Note Registration Default that pertains to a Convertible Note Shelf Registration Statement. All accrued Special Interest shall be paid to Record Holders on each Special Interest Payment Date in the Convertible Notes Indenture) under same manner in which payments of interest are made pursuant to the Convertible Notes Note Indenture, nor to trigger or exercise the Conversion Obligation (as such term is defined in the Convertible Notes Indenture) under the Convertible Notes Indenture, in respect . All obligations of the Convertible Notes so contributed; provided that such limitation on exercise of Fundamental Change Repurchase Right or conversion will not apply if the Closing does not occur. Immediately prior to the Closing (the “Convertible Notes Cash Payment Time”) and subject to Parent’s timely delivery of the notification Company set forth in the next sentence, the Company shall purchase from Parent or its Affiliates a portion of the Convertible Notes, in an amount to be specified by Parent, for cash at the Fundamental Change Repurchase Price (as such term is defined in the Convertible Notes Indenture); provided preceding paragraph that the aggregate amount of cash to be paid by the Company to repurchase such portion of the Convertible Notes (the “Convertible Notes Cash Payment Amount”) shall not exceed $130,000,000 (the “Convertible Notes Cash Payment Cap”). Parent shall notify the Company in writing of the amount of the Convertible Notes to be so purchased at least five (5) Business Days prior to the Closing Date. Parent and the Company will cooperate, and in the case of Parent, Parent will cause its applicable Affiliates to cooperate, in good faith are outstanding with respect to any Transfer Restricted Convertible Note at the parties’ time such security ceases to be a Transfer Restricted Convertible Note shall survive until such time as all such obligations under this Section 6.18(a), including, as appropriate, the entry into of any supplemental indenture, amendment or similar agreement with respect to the Convertible Notes Indenturesuch security shall have been satisfied in full. (b) Prior to the Closing Date, Parent, Merger Sub and the Company shall, as and to the extent required by the Convertible Notes Documents, use reasonable best efforts to execute, and use reasonable best efforts to cause the Trustee to execute, any supplemental indenture(s) required by the Convertible Notes Documents in connection with the Merger and other transactions contemplated by this Agreement and deliver any certificates and other documents required by the Convertible Notes Documents to be delivered by such persons in connection with the Merger and other transactions contemplated by this Agreement. Prior to the Effective Time, the Company shall give any notices and take all actions required under the terms of the Convertible Notes Documents in connection with the Merger and other transactions contemplated by this Agreement. (c) The Company shall provide Parent and its counsel at least three (3) Business Days to review and comment on any notices, certificates, press releases, supplemental indentures, or other documents or instruments deliverable pursuant to the Convertible Notes Documents prior to the dispatch or making thereof and shall incorporate all reasonable comments provided by Parent and its counsel with respect thereto.

Convertible Notes. (a) Immediately prior Prior to the ClosingEffective Time, Parent or its Affiliates then holding Convertible Notes (the “Convertible Note Holders”) shall cause all of the outstanding Convertible Notes , other than the portion thereof to be purchased by the Company as contemplated by the next sentence, to be contributed to Parent (or another Affiliate thereof), and Parent agrees shall deliver any notices (and shall cause each including with respect to holders’ rights to require repurchase or conversion of the Convertible Note Holders to agreeNotes) and take all necessary actions so that, following such contribution and notwithstanding anything in the event that any of the Company’s Convertible Notes issued pursuant to the contrary contained in the Convertible Notes Indenture, the Convertible Note Holders shall no longer be entitled or permitted to exercise the Fundamental Change Repurchase Right (Indentures remain outstanding as such term is defined in the Convertible Notes Indenture) under the Convertible Notes Indenture, nor to trigger or exercise the Conversion Obligation (as such term is defined in the Convertible Notes Indenture) under the Convertible Notes Indenture, in respect of the Convertible Notes so contributed; provided that such limitation on exercise of Fundamental Change Repurchase Right or conversion will not apply if the Closing does not occur. Immediately prior to the Closing (the “Convertible Notes Cash Payment Effective Time”) and subject to Parent’s timely delivery of the notification set forth in the next sentence, the Company shall purchase from Parent or its Affiliates a portion of the Convertible Notes, in an amount to be specified by Parent, for cash at the Fundamental Change Repurchase Price (as such term is defined in the Convertible Notes Indenture); provided that the aggregate amount of cash to be paid by the Company to repurchase such portion of the Convertible Notes (the “Convertible Notes Cash Payment Amount”i) shall not exceed $130,000,000 (the “Convertible Notes Cash Payment Cap”). Parent shall notify the Company in writing of the amount of the Convertible Notes to be so purchased at least five (5) Business Days prior execute and deliver to the Closing Date. Parent and the Company will cooperate, and in the case of Parent, Parent will cause its applicable Affiliates to cooperate, in good faith with respect to the parties’ obligations under this Section 6.18(a), including, as appropriate, the entry into of any Trustee supplemental indenture, amendment or similar agreement with respect indentures to the Convertible Notes Indenture. (b) Prior to the Closing Date, Parent, Merger Sub and the Company shallIndentures, as and to the extent required by the Convertible Notes DocumentsIndentures, use reasonable best efforts including, without limitation, as a result of the Transactions constituting a “Fundamental Change” or “Make-Whole Fundamental Change” (as such terms are defined in the Convertible Notes Indentures) and to executeprovide that on and after the Effective Time, each holder of Convertible Notes shall have the right to convert such Convertible Notes into the Merger Consideration in accordance with, and use reasonable best efforts subject to, the provisions of the Convertible Notes Indentures governing the conversion of the Convertible Notes (including any applicable increase in the “Conversion Rate” thereunder for conversions made in connection with the Merger), (ii) cause to cause be executed and delivered to the Trustee to execute, an “Officer’s Certificate” and an “Opinion of Counsel” (as such terms are defined in the Convertible Notes Indentures) and any supplemental indenture(s) other related documentation required by the Convertible Notes Documents Indentures in connection with such supplemental indentures, as and to the Merger and other transactions contemplated by this Agreement and deliver any certificates and other documents extent required by the Convertible Notes Documents to be delivered Indentures and (iii) take any other actions reasonably requested by such persons Parent in connection with the Merger and other transactions contemplated by this Agreement. Prior Transactions to the Effective Time, the Company shall give extent such actions are required in order to effect any notices and take all actions required under the terms repurchases or conversions of the Convertible Notes Documents in connection accordance with the Merger and other transactions contemplated by this Agreement. (c) Convertible Notes Indentures following the Effective Time. The Company shall will provide copies of any such supplemental indenture, Officer’s Certificate, Opinion of Counsel, and any other documentation required pursuant to the foregoing clause (iii) to Parent and its counsel at least three (3) Business Days prior to review delivering any such document and comment on any noticesall such documents shall be subject to the prior approval of Parent (such approval not to be unreasonably withheld, certificatesconditioned or delayed). (b) The Company shall, press releasesand shall cause its Subsidiaries to, supplemental indenturesuse commercially reasonable efforts to cause their respective representatives to, or other documents or instruments deliverable pursuant to cooperate with Parent in connection with the fulfillment of the Company’s obligations under the terms of the Convertible Notes Documents prior to and the dispatch or making thereof and shall incorporate all reasonable comments provided Convertible Notes Indentures at any time after the date of this Agreement as reasonably requested by Parent and its counsel with respect theretoParent.

Convertible Notes. (a) Immediately prior to the Closing, Parent or its Affiliates then holding The Convertible Notes are convertible after 30 days following the Closing into Common Stock of the Company, par value $.001 per share (the “Convertible Note Holders”) shall cause all of the outstanding Convertible Notes , other than the portion thereof to be purchased by the Company as contemplated by the next sentence, to be contributed to Parent (or another Affiliate thereof"Common Stock"), and Parent agrees (and shall cause each of the Convertible Note Holders to agree) that, following such contribution and notwithstanding anything to the contrary contained at a conversion price as set forth in the Convertible Notes Indenture, the Convertible Note Holders shall no longer be entitled or permitted to exercise the Fundamental Change Repurchase Right (as such term is defined in the Convertible Notes Indenture) under the Convertible Notes Indenture, nor to trigger or exercise the Conversion Obligation (as such term is defined in the Convertible Notes Indenture) under the Convertible Notes Indenture, in respect Notes. The shares of Common Stock issuable upon conversion of the Convertible Notes so contributed; provided that such limitation on exercise of Fundamental Change Repurchase Right or conversion will not apply if are hereinafter referred to as the Closing does not occur"Conversion Shares". Immediately prior to In connection with the Closing (the “Convertible Notes Cash Payment Time”) and subject to Parent’s timely delivery of the notification set forth in the next sentence, the Company shall purchase from Parent or its Affiliates a portion issuance of the Convertible Notes, in an amount to be specified by Parentthe Company has authorized the issuance of Warrants, for cash at the Fundamental Change Repurchase Price (as such term is defined in the form attached hereto as Exhibit A (the "Purchase Warrants"), to purchase Common Stock. The Purchaser will be issued a Purchase Warrant at closing exercisable after 30 days following the Closing for ONE SHARE (at exercise price of $0.27 per share) of Common Stock for each twenty two cents ($0.22) in principal amount of Convertible Notes Indenture); provided that purchased. The Purchase Warrants are hereinafter collectively referred to as the aggregate amount "Warrants" and individually as a "Warrant". The shares of cash Common Stock issuable upon exercise of the Warrants are hereinafter referred to be paid by as the Company to repurchase such portion "Warrant Shares". The proceeds of the Convertible Notes (will be used for general working capital. The Purchaser desires to purchase, upon the “Convertible Notes Cash Payment Amount”) shall not exceed terms and conditions stated in this Agreement, up to $130,000,000 (the “Convertible Notes Cash Payment Cap”). Parent shall notify the Company 300,000 in writing of the principal amount of the Convertible Notes Notes. Contemporaneously with the execution and delivery of this Agreement, the parties hereto are executing and delivering a Registration Rights Agreement in the form attached hereto as Exhibit B (the "Registration Rights Agreement") pursuant to be so purchased at least five (5) Business Days prior which the Company has agreed to provide certain registration rights in respect of the Closing Date. Parent Conversion Shares and the Company will cooperateWarrant Shares under the Securities Act of 1993, as amended ("1933 Act"), and in the case of Parent, Parent will cause its applicable Affiliates to cooperate, in good faith with respect to the parties’ obligations under this Section 6.18(a), including, as appropriate, the entry into of any supplemental indenture, amendment or similar agreement with respect to the Convertible Notes Indenture. (b) Prior to the Closing Date, Parent, Merger Sub rules and the Company shall, as and to the extent required by the Convertible Notes Documents, use reasonable best efforts to executeregulations promulgated thereunder, and use reasonable best efforts applicable state securities laws. The SB-2 Registration is to cause the Trustee to executebecome Effective by May 31, any supplemental indenture(s) required by the Convertible Notes Documents in connection with the Merger and other transactions contemplated by this Agreement and deliver any certificates and other documents required by the Convertible Notes Documents to be delivered by such persons in connection with the Merger and other transactions contemplated by this Agreement. Prior to the 2001 (Effective Time, the Company shall give any notices and take all actions required under the terms of the Convertible Notes Documents in connection with the Merger and other transactions contemplated by this AgreementDeadline. (c) The Company shall provide Parent and its counsel at least three (3) Business Days to review the Purchaser are executing and comment on any notices, certificates, press releases, supplemental indentures, or other documents or instruments deliverable delivering this Agreement in reliance upon the exemption from securities registration pursuant to Section 4(2) and/or Section 4(6) of the Convertible Notes Documents prior to the dispatch or making thereof and shall incorporate all reasonable comments provided by Parent and its counsel with respect thereto1933 Act.

Convertible Notes. (a) Immediately On a date which shall be agreed between the Company and the Acquiror, but which shall be not less than 30 nor more than 60 days prior to the Closing, Parent or its Affiliates then holding Convertible Notes date fixed for redemption (the “"1993 Note Redemption Date") in accordance with the terms of the Company's 9% Convertible Note Holders”) Subordinated Notes Due July 1, 1998 (the "1993 Notes"), the Company shall cause all give notice of redemption of the 1993 Notes for cash in the amount of 102% of the outstanding Convertible principal amount of each 1993 Note plus unpaid accrued interest thereon to the 1993 Note Redemption Date in accordance with the terms thereof. The 1993 Note Redemption Date shall be set to immediately precede the Effective Time and shall be conditioned on satisfaction of all other conditions to the Merger. Each 1993 Note which shall not have been converted into shares of Common Stock at the election of the holder thereof in accordance with the terms of the 1993 Notes , other than prior to the portion thereof to 1993 Note Redemption Date shall be purchased so redeemed by the Company as contemplated by the next sentence, to be contributed to Parent (or another Affiliate thereof), and Parent agrees (and shall cause each of the Convertible 1993 Note Holders to agree) that, following such contribution and notwithstanding anything to the contrary contained in the Convertible Notes Indenture, the Convertible Note Holders shall no longer be entitled or permitted to exercise the Fundamental Change Repurchase Right (as such term is defined in the Convertible Notes Indenture) under the Convertible Notes Indenture, nor to trigger or exercise the Conversion Obligation (as such term is defined in the Convertible Notes Indenture) under the Convertible Notes Indenture, in respect of the Convertible Notes so contributed; provided that such limitation on exercise of Fundamental Change Repurchase Right or conversion will not apply if the Closing does not occur. Immediately prior to the Closing (the “Convertible Notes Cash Payment Time”) and subject to Parent’s timely delivery of the notification set forth in the next sentence, the Company shall purchase from Parent or its Affiliates a portion of the Convertible Notes, in an amount to be specified by Parent, for cash at the Fundamental Change Repurchase Price (as such term is defined in the Convertible Notes Indenture); provided that the aggregate amount of cash to be paid by the Company to repurchase such portion of the Convertible Notes (the “Convertible Notes Cash Payment Amount”) shall not exceed $130,000,000 (the “Convertible Notes Cash Payment Cap”). Parent shall notify the Company in writing of the amount of the Convertible Notes to be so purchased at least five (5) Business Days prior to the Closing Redemption Date. Parent and the Company will cooperate, and in the case of Parent, Parent will cause its applicable Affiliates to cooperate, in good faith with respect to the parties’ obligations under this Section 6.18(a), including, as appropriate, the entry into of any supplemental indenture, amendment or similar agreement with respect to the Convertible Notes Indenture. (b) Prior On a date which shall be agreed between the Company and the Acquiror, but which shall be not less than 30 nor more than 60 days prior to the Closing date fixed for redemption (the "1994 Note Redemption Date, Parent, Merger Sub and the Company shall, as and to the extent required by the Convertible Notes Documents, use reasonable best efforts to execute, and use reasonable best efforts to cause the Trustee to execute, any supplemental indenture(s") required by the Convertible Notes Documents in connection accordance with the Merger and other transactions contemplated by this Agreement and deliver any certificates and other documents required by terms of the Company's 9% Convertible Subordinated Notes Documents to be delivered by such persons in connection with Due April 1, 1999 (the Merger and other transactions contemplated by this Agreement. Prior to the Effective Time"1994 Notes"), the Company shall give any notices notice of redemption of the 1994 Notes for cash in the amount of 102% of the outstanding principal amount of each 1994 Note plus unpaid accrued interest thereon to the 1994 Note Redemption Date in accordance with the terms thereof. The 1994 Note Redemption Date shall be set to immediately precede the Effective Time and take shall be conditioned on satisfaction of all actions required under other conditions to the Merger. Each 1994 Note which shall not have been converted into shares of Common Stock at the election of the holder thereof in accordance with the terms of the Convertible 1994 Notes Documents in connection with the Merger and other transactions contemplated by this Agreement. (c) The Company shall provide Parent and its counsel at least three (3) Business Days to review and comment on any notices, certificates, press releases, supplemental indentures, or other documents or instruments deliverable pursuant to the Convertible Notes Documents prior to the dispatch or making thereof and 1994 Note Redemption Date shall incorporate all reasonable comments provided be so redeemed by Parent and its counsel with respect theretothe Company as of the 1994 Note Redemption Date.