Common use of Limit on Issuance of Shares of Common Stock Upon Conversion Clause in Contracts

Limit on Issuance of Shares of Common Stock Upon Conversion. (a) If a Make-Whole Fundamental Change occurs, then, notwithstanding anything to the contrary in this Indenture, the Company shall pay cash in lieu of delivering any Additional Shares that would otherwise be required to be delivered pursuant to Section 14.03 upon conversions of Notes connection with such Make-Whole Fundamental Change pursuant to this Section 14.12(a) instead of delivering Additional Shares pursuant to Section 14.03, unless, at any time prior to or in connection with such Make-Whole Fundamental Change, the Company has obtained Stockholder Approval and, in connection with such Make-Whole Fundamental Change, the Company elects to deliver Additional Shares pursuant to Section 14.03 in lieu of making the cash payment provided for by this Section 14.12(a); provided that the Company must reserve the necessary number of Shares at the time the Company makes such an election to deliver Additional Shares pursuant to Section 14.03. If cash payments are made in lieu of Additional Shares pursuant to this Section 14.12(a), a converting Holder shall receive (i) an amount of cash equal to the applicable number of Additional Shares pursuant to Section 14.03 multiplied by the applicable Stock Price and (ii) a number of Shares equal to the Conversion Rate multiplied by the principal amount of Notes being converted. (b) If the Company elects to redeem part or all of the Notes pursuant to Section 16.02, then, notwithstanding anything to the contrary in this Indenture, the Company shall pay cash in lieu of delivering any Redemption Make-Whole Consideration that would otherwise be required to be delivered pursuant to Section 16.02 upon such redemption of Notes pursuant to this Section 14.12(b) instead of delivering the Redemption Make-Whole Consideration pursuant to Section 16.02, unless, at any time prior to or in connection with such redemption, the Company has obtained Stockholder Approval and, in connection with such redemption, the Company elects to either (i) deliver such Redemption Make-Whole Consideration pursuant to Section 16.02 in lieu of making the cash payment provided for by this Section 14.12(b) or (ii) (x) deliver any portion of such Redemption Make-Whole Consideration pursuant to Section 16.02 in lieu of making the cash payment provided for by this Section 14.12(b) and (y) pay the difference in cash between the Redemption Make-Whole Value and such delivered Redemption Make-Whole Consideration in accordance with this Section 14.12(b); provided that the Company must reserve the necessary number of Shares at the time the Company makes such an election to deliver any such Redemption Make-Whole Consideration pursuant to Section 16.02. If cash payments are made in lieu of such Redemption Make-Whole Consideration pursuant to this Section 14.12(b), a Holder shall receive, in lieu of such Redemption Make-Whole Consideration, an amount of cash equal to the number of shares comprising the applicable Redemption Make-Whole Consideration pursuant to Section 16.02 multiplied by the applicable Daily VWAP.

Limit on Issuance of Shares of Common Stock Upon Conversion. (a) If a Make-Whole Fundamental Change occurs, then, notwithstanding Notwithstanding anything to the contrary in this Indenture, no Person will be entitled to receive any shares of Common Stock otherwise deliverable upon conversion of the Notes to the extent, but only to the extent, that such receipt would cause such Person to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act) of more than the 4.9% of the shares of Common Stock outstanding at such time (such restriction, the “Beneficial Ownership Limit”). Any purported delivery of shares of Common Stock upon conversion of the Notes shall be void and have no effect to the extent, but only to the extent, that such delivery would result in any Person becoming the beneficial owner of more than 4.9% of the shares of Common Stock outstanding at such time. The Company shall pay cash or deliver, as the case may be, any other consideration due in lieu respect of delivering the Conversion Obligation as set forth in Section 14.02(c) (including cash, shares of Common Stock or combination thereof). If any Additional Shares delivery of shares of Common Stock otherwise owed to any Person upon conversion of the Notes is not made, in whole or in part, as a result of the Beneficial Ownership Limit, the Company’s obligation to make such delivery shall not be extinguished and it shall deliver any such shares of Common Stock otherwise deliverable as promptly as practicable after, but in no event later than two Trading Days after, any such Person gives notice to the Company that such delivery would not result in any Person exceeding the Beneficial Ownership Limit. However, until such time as the affected Person gives such notice, no Person shall be deemed to be the stockholder of record with respect to the shares of Common Stock otherwise be required deliverable upon conversion in excess of the Beneficial Ownership Limit. Upon delivery of such notice, Section 14.02(i) shall apply to the shares of Common Stock to be delivered pursuant to Section 14.03 upon conversions such notice. For the avoidance of Notes connection with such Make-Whole Fundamental Change pursuant to doubt, the term “beneficial owner” as used in this Section 14.12(a) instead of delivering Additional Shares pursuant to Section 14.03, unless, at any time prior to or in connection with such Make-Whole Fundamental Change, the Company has obtained Stockholder Approval and, in connection with such Make-Whole Fundamental Change, the Company elects to deliver Additional Shares pursuant to Section 14.03 in lieu of making the cash payment provided for by this Section 14.12(a); provided that the Company must reserve the necessary number of Shares at the time the Company makes such an election to deliver Additional Shares pursuant to Section 14.03. If cash payments are made in lieu of Additional Shares pursuant to this Section 14.12(a), a converting Holder 14.12 shall receive not include (i) an amount of cash equal with respect to any Global Note, the applicable number of Additional Shares pursuant to Section 14.03 multiplied by the applicable Stock Price and (ii) a number of Shares equal to the Conversion Rate multiplied by the principal amount of Notes being converted. (b) If the Company elects to redeem part or all nominee of the Notes pursuant to Section 16.02, then, notwithstanding anything to Depositary or any Person having an account with the contrary in this Indenture, the Company shall pay cash in lieu of delivering any Redemption Make-Whole Consideration that would otherwise be required to be delivered pursuant to Section 16.02 upon such redemption of Notes pursuant to this Section 14.12(b) instead of delivering the Redemption Make-Whole Consideration pursuant to Section 16.02, unless, at any time prior to Depositary or in connection with such redemption, the Company has obtained Stockholder Approval and, in connection with such redemption, the Company elects to either (i) deliver such Redemption Make-Whole Consideration pursuant to Section 16.02 in lieu of making the cash payment provided for by this Section 14.12(b) its nominee or (ii) (x) deliver with respect to any portion Physical Note, the Holder of such Redemption Make-Whole Consideration pursuant to Section 16.02 Physical Note unless, in lieu of making the cash payment provided for by this Section 14.12(b) and (y) pay the difference in cash between the Redemption Make-Whole Value and each case, such delivered Redemption Make-Whole Consideration in accordance with this Section 14.12(b); provided that the Company must reserve the necessary number of Shares at the time the Company makes such an election to deliver any such Redemption Make-Whole Consideration pursuant to Section 16.02. If cash payments are made in lieu nominee, account holder or Holder shall also be a beneficial owner of such Redemption Make-Whole Consideration pursuant to this Section 14.12(b), a Holder shall receive, in lieu of such Redemption Make-Whole Consideration, an amount of cash equal to the number of shares comprising the applicable Redemption Make-Whole Consideration pursuant to Section 16.02 multiplied by the applicable Daily VWAPNote.