Common use of Cash Settlement Clause in Contracts

Cash Settlement. If, at any time after the earlier of Stockholder Approval or six months after the initial issuance of the Series A Non-Voting Preferred Stock, the Corporation fails to deliver to a Holder such certificate or certificates, or electronically deliver (or cause its transfer agent to electronically deliver) such shares in the case of a DWAC Delivery, pursuant to Section 6.5.1 on or prior to the third (3rd) Trading Day after the Share Delivery Date applicable to such conversion (other than a failure caused by (i) materially incorrect or incomplete information provided by Holder to the Corporation or (ii) the application of the Beneficial Ownership Limitation after Stockholder Approval (but, prior to the Stockholder Approval, disregarding for such purpose any Beneficial Ownership Limitation), then, unless the Holder has rescinded the applicable Notice of Conversion pursuant to Section 6.5.1, the Corporation shall, at the request of the Holder, pay an amount equal to the Fair Value (as defined below) of such undelivered shares, with such payment to be made within two Business Days from the date of request by the Holder, whereupon the Corporation’s obligations to deliver such shares underlying the Notice of Conversion shall be extinguished upon payment in full of the Fair Value of such undelivered shares; provided, however that such request shall be presumed to have been made by such Holder if Stockholder Approval shall not have been obtained prior to the date on which the Notice of Conversion is delivered to the Corporation. For purposes of this Section 6.5.3, the “Fair Value” of shares shall be fixed with reference to the last reported Closing Sale Price on the principal Trading Market on which the Common Stock is listed as of the Trading Day immediately prior to the date on which the Notice of Conversion is delivered to the Corporation. For the avoidance of doubt, the cash settlement provisions set forth in this Section 6.5.3 shall be available irrespective of the reason for the Corporation’s failure to timely deliver Conversion Shares (other than a failure caused by (i) materially incorrect or incomplete information provided by Holder to the Corporation or (ii) the application of the Beneficial Ownership Limitation after Stockholder Approval (but, prior to the Stockholder Approval, disregarding for such purpose any Beneficial Ownership Limitation)), including due to limitations set forth in Section 6.5.6, the lack of obtaining Stockholder Approval, or due to applicable Trading Market rules.

Cash Settlement. If, at any time after (a) Upon receipt by the earlier Collateral Agent of Stockholder Approval or six months after the initial issuance of the Series A Non-Voting Preferred Stock, the Corporation fails to deliver to a Holder such certificate or certificates, or electronically deliver (or cause its transfer agent to electronically deliver1) such shares in the case of a DWAC Delivery, pursuant to Section 6.5.1 on or prior to the third (3rd) Trading Day after the Share Delivery Date applicable to such conversion (other than a failure caused by (i) materially incorrect or incomplete information provided by a notice from the Purchase Contract Agent that a Holder of a Corporate Unit has elected, in accordance with the procedures specified in Section 5.4(a)(i) of the Purchase Contract Agreement, to the Corporation or settle its Purchase Contract with cash and (ii) the application payment by such Holder of the Beneficial Ownership Limitation after Stockholder Approval (but, amount required to settle the Purchase Contract prior to 11:00 a.m., New York City time, on the Stockholder Approvalsixth Business Day or (if all the Remarketings during the Final Three-Day Remarketing Period result in a Failed Remarketing) one Business Day, disregarding for as applicable, immediately preceding the Purchase Contract Settlement Date, or (2) (i) a notice from the Purchase Contract Agent that a Holder of a Treasury Unit has elected, in accordance with the procedures specified in Section 5.4(c)(i) of the Purchase Contract Agreement, to settle its Purchase Contract with cash and (ii) payment by such purpose any Beneficial Ownership Limitation)Holder of the amount required to settle the Purchase Contract prior to 11:00 a.m., thenNew York City time, unless on the Holder has rescinded Business Day immediately preceding the applicable Notice of Conversion Purchase Contract Settlement Date, such payments pursuant to Section 6.5.1the foregoing clause (1) or clause (2) to be in lawful money of the United States and to be made by certified or cashiers’ check or wire transfer in immediately available funds payable to or upon the order of the Company, then the Collateral Agent shall, upon written direction of the Company, promptly invest any cash received from a Holder in connection with a Cash Settlement in Permitted Investments. Upon receipt of the proceeds, if any, upon the maturity of the Permitted Investments, the Corporation shallCollateral Agent shall pay the portion of such proceeds and deliver any certified or cashiers’ checks received, at the request of the Holder, pay in an aggregate amount equal to the Fair Value (as defined below) Purchase Price, to the Company on the Purchase Contract Settlement Date, and shall distribute any funds in respect of such undelivered sharesthe interest earned from the Permitted Investments, with such if any, to the Purchase Contract Agent for payment to be made within two Business Days from the date of request by the relevant Holder, whereupon the Corporation’s obligations to deliver such shares underlying the Notice of Conversion shall be extinguished upon payment in full of the Fair Value of such undelivered shares; provided, however that such request shall be presumed to have been made by such Holder if Stockholder Approval shall not have been obtained prior to the date on which the Notice of Conversion is delivered to the Corporation. For purposes of this Section 6.5.3, the “Fair Value” of shares shall be fixed with reference to the last reported Closing Sale Price on the principal Trading Market on which the Common Stock is listed as of the Trading Day immediately prior to the date on which the Notice of Conversion is delivered to the Corporation. For the avoidance of doubt, the cash settlement provisions set forth in this Section 6.5.3 shall be available irrespective of the reason for the Corporation’s failure to timely deliver Conversion Shares (other than a failure caused by (i) materially incorrect or incomplete information provided by Holder to the Corporation or (ii) the application of the Beneficial Ownership Limitation after Stockholder Approval (but, prior to the Stockholder Approval, disregarding for such purpose any Beneficial Ownership Limitation)), including due to limitations set forth in Section 6.5.6, the lack of obtaining Stockholder Approval, or due to applicable Trading Market rules.

Cash Settlement. If, at any time (a) Upon (1) receipt by the Collateral Agent of a notice from the Stock Purchase Contract Agent promptly after the earlier receipt by the Stock Purchase Contract Agent of Stockholder Approval or six months after a notice from a Holder of Normal Common Equity Units that such Holder has elected, in accordance with the initial issuance procedures specified in Section 5.02(b)(i) of the Series A Non-Voting Preferred StockStock Purchase Contract Agreement, to effect a Cash Settlement and (2) receipt from such Holder by the Corporation fails Securities Intermediary for credit to deliver to a Holder such certificate or certificates, or electronically deliver (or cause its transfer agent to electronically deliver) such shares in the case of a DWAC Delivery, pursuant to Section 6.5.1 applicable Collateral Account on or prior to 5:00 p.m. (New York City time) on the third (3rd) Trading fourth Business Day after immediately preceding the Share Delivery applicable Stock Purchase Date of the applicable Purchase Price in lawful money of the United States by certified or cashier's check or wire transfer of immediately available funds payable to or upon the order of the Securities Intermediary, then the Collateral Agent shall instruct the Securities Intermediary promptly to invest any such conversion (other than a failure caused by (i) materially incorrect or incomplete information provided by Holder Cash in Permitted Investments maturing on the Stock Purchase Date. The Company shall instruct the Collateral Agent in writing as to the Corporation Permitted Investments in which any such Cash shall be invested; provided, however, that if the Company fails to deliver such written instructions by 10:30 a.m. (New York City time) on the day such Cash is received by the Collateral Agent or to be reinvested by the Securities Intermediary, the Collateral Agent shall instruct the Securities Intermediary to invest such Cash in the Permitted Investments described in clause (ii6) the application of the Beneficial Ownership Limitation after Stockholder Approval (but, prior definition of Permitted Investments. The Collateral Agent may conclusively rely on any written direction and shall bear no liability for any loss or other damage based on acting or omitting to the Stockholder Approval, disregarding for such purpose any Beneficial Ownership Limitation), then, unless the Holder has rescinded the applicable Notice of Conversion act under this Section 5.05 pursuant to Section 6.5.1any direction of the Company and in no event shall the Collateral Agent or Securities Intermediary be liable for the selection of Permitted Investments or for investment losses incurred thereon. The Collateral Agent and Securities Intermediary shall have no liability with respect to losses incurred as a result of the failure of the Company to provide written investment direction. In the event of a Successful Remarketing, upon receipt of Proceeds upon the maturity of the Permitted Investments on a Stock Purchase Date, the Corporation shallCollateral Agent shall (A) instruct the Securities Intermediary to pay the portion of such Proceeds and deliver any certified or cashier's checks received, at the request of the Holder, pay in an aggregate amount equal to the Fair Value Purchase Price, to the Company on the Stock Purchase Date, and (as defined belowB) of such undelivered shares, with such payment to be made within two Business Days from the date of request by the Holder, whereupon the Corporation’s obligations to deliver such shares underlying the Notice of Conversion shall be extinguished upon payment release any amounts in full excess of the Fair Value of Purchase Price earned from such undelivered shares; provided, however that such request shall be presumed to have been made by such Holder if Stockholder Approval shall not have been obtained prior Permitted Investments to the date on which the Notice of Conversion is delivered Stock Purchase Contract Agent for distribution to the Corporation. For purposes of this Section 6.5.3, Holders in accordance with the “Fair Value” of shares shall be fixed with reference to the last reported Closing Sale Price on the principal Trading Market on which the Common Stock is listed as of the Trading Day immediately prior to the date on which the Notice of Conversion is delivered to the Corporation. For the avoidance of doubt, the cash settlement provisions set forth in this Section 6.5.3 shall be available irrespective of the reason for the Corporation’s failure to timely deliver Conversion Shares (other than a failure caused by (i) materially incorrect or incomplete information provided by Holder to the Corporation or (ii) the application of the Beneficial Ownership Limitation after Stockholder Approval (but, prior to the Stockholder Approval, disregarding for such purpose any Beneficial Ownership Limitation)), including due to limitations set forth in Section 6.5.6, the lack of obtaining Stockholder Approval, or due to applicable Trading Market rulesPurchase Contract Agreement.

Cash Settlement. If, at any time after (a) Upon receipt by the earlier Collateral Agent of Stockholder Approval or six months after the initial issuance of the Series A Non-Voting Preferred Stock, the Corporation fails to deliver to a Holder such certificate or certificates, or electronically deliver (or cause its transfer agent to electronically deliver1) such shares in the case of a DWAC Delivery, pursuant to Section 6.5.1 on or prior to the third (3rd) Trading Day after the Share Delivery Date applicable to such conversion (other than a failure caused by (i) materially incorrect or incomplete information provided by a notice from the Purchase Contract Agent that a Holder of a Corporate Unit has elected, in accordance with the procedures specified in Section 5.4(a)(i) of the Purchase Contract Agreement, to the Corporation or settle its Purchase Contract with cash and (ii) the application payment by such Holder of the Beneficial Ownership Limitation after Stockholder Approval (but, amount required to settle the Purchase Contract prior to 11:00 a.m., New York City time, on the Stockholder Approvalsixth Business Day or (if all the Remarketings during the Final Three‑Day Remarketing Period result in a Failed Remarketing) one Business Day, disregarding for as applicable, immediately preceding the Purchase Contract Settlement Date, or (2) (i) a notice from the Purchase Contract Agent that a Holder of a Treasury Unit has elected, in accordance with the procedures specified in Section 5.4(c)(i) of the Purchase Contract Agreement, to settle its Purchase Contract with cash and (ii) payment by such purpose any Beneficial Ownership Limitation)Holder of the amount required to settle the Purchase Contract prior to 11:00 a.m., thenNew York City time, unless on the Holder has rescinded Business Day immediately preceding the applicable Notice of Conversion Purchase Contract Settlement Date, such payments pursuant to Section 6.5.1the foregoing clause (1) or clause (2) to be in lawful money of the United States and to be made by certified or cashiers’ check or wire transfer in immediately available funds payable to or upon the order of the Company, then the Collateral Agent shall, upon written direction of the Company, promptly invest any cash received from a Holder in connection with a Cash Settlement in Permitted Investments. Upon receipt of the proceeds, if any, upon the maturity of the Permitted Investments, the Corporation shallCollateral Agent shall pay the portion of such proceeds and deliver any certified or cashiers’ checks received, at the request of the Holder, pay in an aggregate amount equal to the Fair Value (as defined below) Purchase Price, to the Company on the Purchase Contract Settlement Date, and shall distribute any funds in respect of such undelivered sharesthe interest earned from the Permitted Investments, with such if any, to the Purchase Contract Agent for payment to be made within two Business Days from the date of request by the relevant Holder, whereupon the Corporation’s obligations to deliver such shares underlying the Notice of Conversion shall be extinguished upon payment in full of the Fair Value of such undelivered shares; provided, however that such request shall be presumed to have been made by such Holder if Stockholder Approval shall not have been obtained prior to the date on which the Notice of Conversion is delivered to the Corporation. For purposes of this Section 6.5.3, the “Fair Value” of shares shall be fixed with reference to the last reported Closing Sale Price on the principal Trading Market on which the Common Stock is listed as of the Trading Day immediately prior to the date on which the Notice of Conversion is delivered to the Corporation. For the avoidance of doubt, the cash settlement provisions set forth in this Section 6.5.3 shall be available irrespective of the reason for the Corporation’s failure to timely deliver Conversion Shares (other than a failure caused by (i) materially incorrect or incomplete information provided by Holder to the Corporation or (ii) the application of the Beneficial Ownership Limitation after Stockholder Approval (but, prior to the Stockholder Approval, disregarding for such purpose any Beneficial Ownership Limitation)), including due to limitations set forth in Section 6.5.6, the lack of obtaining Stockholder Approval, or due to applicable Trading Market rules.

Cash Settlement. If, at any time after (a) Upon receipt by the earlier Collateral Agent of Stockholder Approval or six months after the initial issuance of the Series A Non-Voting Preferred Stock, the Corporation fails to deliver to a Holder such certificate or certificates, or electronically deliver (or cause its transfer agent to electronically deliver) such shares in the case of a DWAC Delivery, pursuant to Section 6.5.1 on or prior to the third (3rd) Trading Day after the Share Delivery Date applicable to such conversion (other than a failure caused by (i) materially incorrect a notice from the Purchase Contract Agent that a Holder of a Corporate Unit or incomplete information provided by Holder Treasury Unit has elected, in accordance with the procedures specified in Section 5.4(a)(i) or (d)(i) of the Purchase Contract Agreement, respectively, to the Corporation or settle its Purchase Contract with Cash and (ii) the application payment by such Holder of the Beneficial Ownership Limitation after Stockholder Approval (but, amount required to settle the Purchase Contract prior to 11:00 a.m., New York City time, on the Stockholder ApprovalBusiness Day immediately preceding the Purchase Contract Settlement Date in lawful money of the United States by certified or cashiers' check or wire transfer in immediately available funds payable to or upon the order of the Company, disregarding for such purpose then the Collateral Agent shall, upon written direction of the Company, promptly invest any Beneficial Ownership Limitation), then, unless Cash received from a Holder in connection with a Cash Settlement in Permitted Investments. Upon receipt of the Holder has rescinded proceeds upon the applicable Notice maturity of Conversion pursuant to Section 6.5.1the Permitted Investments on the Purchase Contract Settlement Date, the Corporation shallCollateral Agent shall pay the portion of such proceeds and deliver any certified or cashiers' checks received, at the request of the Holder, pay in an aggregate amount equal to the Fair Value Purchase Price, to the Company on the Purchase Contract Settlement Date, and shall distribute any funds in respect of the interest earned from the Permitted Investments to the Purchase Contract Agent for payment to the relevant Holder. (as defined belowb) If a Holder of Corporate Units fails to notify the Purchase Contract Agent of its intention to make a Cash Settlement in accordance with Section 5.4(a)(i) of the Purchase Contract Agreement, such undelivered sharesfailure shall constitute a default under the Purchase Contract Agreement and hereunder, and the Holder shall be deemed to have consented to the disposition of the Pledged Debentures pursuant to the remarketing as described in Section 5.4(b) of the Purchase Contract Agreement, which is incorporated herein by reference and Section 4.6 hereof, and the Collateral Agent, for the benefit of the Company, will exercise its rights as a secured party with respect to applicable Pledged Debentures at the direction of the Company to cause the remarketing of such Pledged Debentures. If a Holder of Corporate Units does notify the Purchase Contract Agent as provided in Section 5.4(a)(i) of the Purchase Contract Agreement of its intention to make a Cash Settlement, but fails to make such payment as required by Section 5.4(a)(ii) of the Purchase Contract Agreement, such failure shall constitute a default under the related Purchase Contracts and hereunder, and the Pledged Debentures of such a Holder will not be remarketed but instead the Collateral Agent, for the benefit of the Company, will exercise its rights as a secured party with respect to be made within two Business Days from such Debentures at the date direction of request the Company to retain or dispose of the Collateral in accordance with applicable law. In addition, in the event of a Failed Remarketing as described in Section 5.4(b) of the Purchase Contract Agreement, such Failed Remarketing shall constitute a default hereunder by the such Holder, whereupon and the Corporation’s obligations to deliver such shares underlying Collateral Agent, for the Notice of Conversion shall be extinguished upon payment in full benefit of the Fair Value Company, will also exercise its rights as a secured party with respect to such Debentures at the direction of the Company to retain or dispose of the Collateral in accordance with applicable law. (c) If a Holder of Treasury Units or Corporate Units (if the Treasury Portfolio has replaced the Debentures) fails to notify the Purchase Contract Agent of such undelivered shares; providedHolder's intention to make a Cash Settlement in accordance with Section 5.4(d)(i) of the Purchase Contract Agreement, however that or if a Holder of Treasury Units or Corporate Units (if the Treasury Portfolio has replaced the Debentures) notifies the Purchase Contract Agent as provided in Section 5.4(d)(i) of the Purchase Contract Agreement of its intention to make a Cash Settlement, but fails to make such request payment as required by Section 5.4(d)(ii) of the Purchase Contract Agreement, such failure shall be presumed to have been made constitute a default under the related Purchase Contracts and hereunder by such Holder and upon the maturity of the related Pledged Treasury Securities or the Pledged Applicable Ownership Interest in the Treasury Portfolio, if Stockholder Approval shall not have been obtained prior any, held by the Collateral Agent on the Business Day immediately preceding the Purchase Contract Settlement Date, the principal amount of such Pledged Treasury Securities or the portion of the Pledged Applicable Ownership Interest in the Treasury Portfolio corresponding to such Purchase Contracts received by the Collateral Agent shall, upon written direction of the Company, be invested promptly in Permitted Investments. On the Purchase Contract Settlement Date, an aggregate amount equal to the date on which the Notice of Conversion is delivered Purchase Price will be remitted to the CorporationCompany as payment thereof. For purposes In the event the sum of this Section 6.5.3the proceeds from the Pledged Treasury Securities or the Pledged Applicable Ownership Interest in the Treasury Portfolio, as the case may be, and the investment earnings earned from such investments is in excess of the aggregate Purchase Price of the Purchase Contracts being settled thereby, the “Fair Value” of shares shall be fixed with reference Collateral Agent will distribute such excess to the last reported Closing Sale Price on Purchase Contract Agent for the principal Trading Market on which the Common Stock is listed as benefit of the Trading Day immediately prior to the date on which the Notice of Conversion is delivered to the Corporation. For the avoidance of doubt, the cash settlement provisions set forth in this Section 6.5.3 shall be available irrespective Holder of the reason for the Corporation’s failure to timely deliver Conversion Shares (other than a failure caused by (i) materially incorrect related Treasury Units or incomplete information provided by Holder to the Corporation or (ii) the application of the Beneficial Ownership Limitation after Stockholder Approval (but, prior to the Stockholder Approval, disregarding for such purpose any Beneficial Ownership Limitation)), including due to limitations set forth in Section 6.5.6, the lack of obtaining Stockholder Approval, or due to applicable Trading Market rules.Corporate Units when received. SECTION 4.5

Cash Settlement. If(a) Unless a Holder has effected an Early Settlement or a Merger Early Settlement or a Successful Remarketing during the Period for Early Remarketing has occurred, at any time after in the earlier case of Stockholder Approval or six months after Corporate PIES, and unless a Termination Event has occurred prior to dates required for notice to elect the initial issuance of Cash Settlement right specified in the Series A Non-Voting Preferred StockPurchase Contract Agreement and the Collateral Agent has received written notice from the Company, the Corporation fails to deliver to a Holder such certificate or certificatesPurchase Contract Agent or, or electronically deliver (or cause its transfer agent to electronically deliver) such shares in the case of a DWAC DeliveryTermination Event, pursuant from the holders of at least 10% of the outstanding PIES of such Early Settlement, Merger Early Settlement, Successful Remarketing or Termination Event, as the case may be, upon receipt by the Collateral Agent of (1) a notice from the Purchase Contract Agent (including a copy of such notice received from the Holder substantially in the form of Exhibit F to the Purchase Contract Agreement) promptly after the receipt by the Purchase Contract Agent of a notice from a Holder of a Corporate PIES or a Treasury PIES that it has elected, in accordance with the procedures specified in Section 6.5.1 5.8(a)(i) or (b)(i) of the Purchase Contract Agreement, respectively, to effect a Cash Settlement and (2) payment by such Holder by deposit in the Collateral Account on or prior to 11:00 a.m. (New York City time), on the third (3rd) Trading fifth Business Day after immediately preceding the Share Delivery Purchase Contract Settlement Date applicable to such conversion (other than a failure caused by (i) materially incorrect or incomplete information provided by Holder to in the Corporation or (ii) case of Corporate PIES, and the application Business Day immediately preceding the Purchase Contract Settlement Date in the case of the Beneficial Ownership Limitation after Stockholder Approval (butTreasury PIES, prior to the Stockholder Approval, disregarding for such purpose any Beneficial Ownership Limitation), then, unless the Holder has rescinded the applicable Notice of Conversion pursuant to Section 6.5.1, the Corporation shall, at the request of the HolderPurchase Price in lawful money of the United States by certified or cashiers' check or wire transfer, pay an amount equal in each case of immediately available funds payable to or upon the Fair Value (as defined below) order of such undelivered sharesthe Securities Intermediary, with such payment to be made within two Business Days then the Collateral Agent shall upon receipt of written directions from the date of request by the Holder, whereupon the Corporation’s obligations to deliver such shares underlying the Notice of Conversion shall be extinguished upon payment in full of the Fair Value of such undelivered shares; provided, however that such request shall be presumed to have been made by such Holder if Stockholder Approval shall not have been obtained prior to the date on which the Notice of Conversion is delivered to the Corporation. For purposes of this Section 6.5.3, the “Fair Value” of shares shall be fixed with reference to the last reported Closing Sale Price on the principal Trading Market on which the Common Stock is listed as of the Trading Day immediately prior to the date on which the Notice of Conversion is delivered to the Corporation. For the avoidance of doubt, the cash settlement provisions set forth in this Section 6.5.3 shall be available irrespective of the reason for the Corporation’s failure to timely deliver Conversion Shares (other than a failure caused by (i) materially incorrect or incomplete information provided by Holder to the Corporation or (ii) the application of the Beneficial Ownership Limitation after Stockholder Approval (but, prior to the Stockholder Approval, disregarding for such purpose any Beneficial Ownership Limitation)), including due to limitations set forth in Section 6.5.6, the lack of obtaining Stockholder Approval, or due to applicable Trading Market rules.Company:

Cash Settlement. If, at any time (a) Upon (1) receipt by the Collateral Agent of a notice from the Stock Purchase Contract Agent promptly after the earlier receipt by the Stock Purchase Contract Agent of Stockholder Approval or six months after a notice from a Holder of Normal Common Equity Units that such Holder has elected, in accordance with the initial issuance procedures specified in Section 5.2(b)(i) of the Series A Non-Voting Preferred StockStock Purchase Contract Agreement, to effect a Cash Settlement or has elected, in accordance with the Corporation procedures specified in Section 10(d)(ii) of the applicable Certificate of Designations not to exercise the Put Right, and (2) receipt from such Holder by the Securities Intermediary for credit to the applicable Collateral Account at or prior to 5:00 p.m. (New York City time) on the eleventh (11th) Business Day immediately preceding the applicable Stock Purchase Date of the applicable Purchase Price in lawful money of the United States by certified or cashier’s check or wire transfer of immediately available funds payable to or upon the order of the Securities Intermediary, then the Collateral Agent shall instruct the Securities Intermediary promptly to invest any such Cash in Permitted Investments maturing on the Stock Purchase Date. The Company shall instruct the Collateral Agent in writing as to the Permitted Investments in which any such Cash shall be invested; provided, however, that if the Company fails to deliver such written instructions by 10:30 a.m. (New York City time) on the day such Cash is received by the Collateral Agent or to a Holder be reinvested by the Securities Intermediary, the Collateral Agent shall instruct the Securities Intermediary to invest such certificate or certificates, or electronically deliver (or cause its transfer agent to electronically deliver) such shares Cash in the case Permitted Investments described in clause (vi) of the definition of Permitted Investments. The Collateral Agent may conclusively rely on any written direction and shall bear no liability for any loss or other damage based on acting or omitting to act under this Section 5.6 pursuant to any direction of the Company and in no event shall the Collateral Agent or Securities Intermediary be liable for the selection of Permitted Investments or for investment losses incurred thereon. The Collateral Agent and Securities Intermediary shall have no liability with respect to losses incurred as a result of the failure of the Company to provide written investment direction. In the event of a DWAC DeliverySuccessful Remarketing, pursuant to Section 6.5.1 upon receipt of Proceeds upon the maturity of the Permitted Investments on or prior to a Stock Purchase Date, the third (3rd) Trading Day after the Share Delivery Date applicable to such conversion (other than a failure caused by Collateral Agent shall (i) materially incorrect instruct the Securities Intermediary to pay the portion of such Proceeds and deliver any certified or incomplete information provided by Holder to the Corporation or (ii) the application of the Beneficial Ownership Limitation after Stockholder Approval (butcashier’s checks received, prior to the Stockholder Approval, disregarding for such purpose any Beneficial Ownership Limitation), then, unless the Holder has rescinded the applicable Notice of Conversion pursuant to Section 6.5.1, the Corporation shall, at the request of the Holder, pay in an aggregate amount equal to the Fair Value (as defined below) of such undelivered sharesPurchase Price, with such payment to be made within two Business Days from the date of request by the Holder, whereupon the Corporation’s obligations to deliver such shares underlying the Notice of Conversion shall be extinguished upon payment in full of the Fair Value of such undelivered shares; provided, however that such request shall be presumed to have been made by such Holder if Stockholder Approval shall not have been obtained prior to the date on which the Notice of Conversion is delivered to the Corporation. For purposes of this Section 6.5.3, the “Fair Value” of shares shall be fixed with reference to the last reported Closing Sale Price Company on the principal Trading Market on which the Common Stock is listed as of the Trading Day immediately prior to the date on which the Notice of Conversion is delivered to the Corporation. For the avoidance of doubtPurchase Date, the cash settlement provisions set forth in this Section 6.5.3 shall be available irrespective of the reason for the Corporation’s failure to timely deliver Conversion Shares (other than a failure caused by (i) materially incorrect or incomplete information provided by Holder to the Corporation or and (ii) the application release any amounts in excess of the Beneficial Ownership Limitation after Stockholder Approval (but, prior Purchase Price earned from such Permitted Investments to the Stockholder Approval, disregarding Stock Purchase Contract Agent for such purpose any Beneficial Ownership Limitation)), including due distribution to limitations set forth the Holders who elected to effect a Cash Settlement in Section 6.5.6, accordance with the lack of obtaining Stockholder Approval, or due to applicable Trading Market rulesStock Purchase Contract Agreement.

Cash Settlement. If, at any time (a) Upon receipt by the Collateral Agent of (1) a notice from the Stock Purchase Contract Agent promptly after the earlier receipt by the Stock Purchase Contract Agent of Stockholder Approval or six months after a notice from a Holder of Normal Common SPACES that such Holder has elected, in accordance with the initial issuance procedures specified in Section 5.02(b)(i) of the Series A Non-Voting Preferred StockStock Purchase Contract Agreement, the Corporation fails to deliver to effect a Cash Settlement and (2) payment by such Holder such certificate or certificates, or electronically deliver (or cause its transfer agent to electronically deliver) such shares by deposit in the case of a DWAC Delivery, pursuant to Section 6.5.1 Collateral Account on or prior to 5:00 p.m. (New York City time) on the third (3rd) Trading fourth Business Day after immediately preceding the Share Delivery Stock Purchase Date applicable of the Purchase Price in lawful money of the United States by certified or cashier’s check or wire transfer of immediately available funds payable to or upon the order of the Securities Intermediary, then the Collateral Agent shall instruct the Securities Intermediary promptly to invest any such conversion (other than a failure caused by (i) materially incorrect or incomplete information provided by Holder Cash in Permitted Investments maturing on the Stock Purchase Date. The Company shall instruct the Collateral Agent in writing as to the Corporation Permitted Investments in which any such Cash shall be invested; provided, however, that if the Company fails to deliver such written instructions by 10:30 a.m. (New York City time) on the day such Cash is received by the Collateral Agent or to be reinvested by the Securities Intermediary, the Collateral Agent shall instruct the Securities Intermediary to invest such Cash in the Permitted Investments described in clause (ii6) the application of the Beneficial Ownership Limitation after Stockholder Approval (but, prior definition of Permitted Investments. The Collateral Agent may conclusively rely on any written direction and shall bear no liability for any loss or other damage based on acting or omitting to the Stockholder Approval, disregarding for such purpose any Beneficial Ownership Limitation), then, unless the Holder has rescinded the applicable Notice of Conversion act under this Section 5.05 pursuant to Section 6.5.1any direction of the Company and in no event shall the Collateral Agent or Securities Intermediary be liable for the selection of Permitted Investments or for investment losses incurred thereon. The Collateral Agent and Securities Intermediary shall have no liability with respect to losses incurred as a result of the failure of the Company to provide timely written investment direction. In the event of a Successful Remarketing, upon receipt of Proceeds upon the maturity of the Permitted Investments on the Stock Purchase Date, the Corporation shallCollateral Agent shall (A) instruct the Securities Intermediary to pay the portion of such Proceeds and deliver any certified or cashier’s checks received, at the request of the Holder, pay in an aggregate amount equal to the Fair Value Purchase Price, to the Company on the Stock Purchase Date, and (as defined belowB) of such undelivered shares, with such payment to be made within two Business Days from the date of request by the Holder, whereupon the Corporation’s obligations to deliver such shares underlying the Notice of Conversion shall be extinguished upon payment release any amounts in full excess of the Fair Value of Purchase Price earned from such undelivered shares; provided, however that such request shall be presumed Permitted Investments to have been made by the Stock Purchase Contract Agent for distribution to such Holder if Stockholder Approval shall not have been obtained prior to in accordance with the date on which the Notice of Conversion is delivered to the Corporation. For purposes of this Section 6.5.3, the “Fair Value” of shares shall be fixed with reference to the last reported Closing Sale Price on the principal Trading Market on which the Common Stock is listed as of the Trading Day immediately prior to the date on which the Notice of Conversion is delivered to the Corporation. For the avoidance of doubt, the cash settlement provisions set forth in this Section 6.5.3 shall be available irrespective of the reason for the Corporation’s failure to timely deliver Conversion Shares (other than a failure caused by (i) materially incorrect or incomplete information provided by Holder to the Corporation or (ii) the application of the Beneficial Ownership Limitation after Stockholder Approval (but, prior to the Stockholder Approval, disregarding for such purpose any Beneficial Ownership Limitation)), including due to limitations set forth in Section 6.5.6, the lack of obtaining Stockholder Approval, or due to applicable Trading Market rulesPurchase Contract Agreement.

Cash Settlement. If, at any time after (a) Upon receipt by the earlier Collateral Agent of Stockholder Approval or six months after the initial issuance of the Series A Non-Voting Preferred Stock, the Corporation fails to deliver to a Holder such certificate or certificates, or electronically deliver (or cause its transfer agent to electronically deliver1) such shares in the case of a DWAC Delivery, pursuant to Section 6.5.1 on or prior to the third (3rd) Trading Day after the Share Delivery Date applicable to such conversion (other than a failure caused by (i) materially incorrect or incomplete information provided by a notice from the Purchase Contract Agent that a Holder of a Corporate Unit has elected, in accordance with the procedures specified in Section 5.4(a)(i) of the Purchase Contract Agreement, to the Corporation or settle its Purchase Contract with cash and (ii) the application payment by such Holder of the Beneficial Ownership Limitation after Stockholder Approval (but, amount required to settle the Purchase Contract prior to 11:00 a.m., New York City time, on the Stockholder Approvalsixth Business Day or (if all the Remarketings during the Final Three-Day Remarketing Period result in Failed Remarketings) one Business Day, disregarding for as applicable, immediately preceding the Purchase Contract Settlement Date, or (2) (i) a notice from the Purchase Contract Agent that a Holder of a Treasury Unit has elected, in accordance with the procedures specified in Section 5.4(c)(i) of the Purchase Contract Agreement, to settle its Purchase Contract with cash and (ii) payment by such purpose any Beneficial Ownership Limitation)Holder of the amount required to settle the Purchase Contract prior to 11:00 a.m., thenNew York City time, unless on the Holder has rescinded Business Day immediately preceding the applicable Notice of Conversion Purchase Contract Settlement Date, such payments pursuant to Section 6.5.1the foregoing clause (1) or clause (2) to be in lawful money of the United States and to be made by certified or cashiers’ check or wire transfer in immediately available funds payable to or upon the order of the Company, then the Collateral Agent shall, upon written direction of the Company, promptly invest any cash received from a Holder in connection with a Cash Settlement in Permitted Investments. Upon receipt of the proceeds, if any, upon the maturity of the Permitted Investments on the Purchase Contract Settlement Date, the Corporation shallCollateral Agent shall pay the portion of such proceeds and deliver any certified or cashiers’ checks received, at the request of the Holder, pay in an aggregate amount equal to the Fair Value (as defined below) Purchase Price, to the Company on the Purchase Contract Settlement Date, and shall distribute any funds in respect of such undelivered sharesthe interest earned from the Permitted Investments, with such if any, to the Purchase Contract Agent for payment to be made within two Business Days from the date of request by the relevant Holder, whereupon the Corporation’s obligations to deliver such shares underlying the Notice of Conversion shall be extinguished upon payment in full of the Fair Value of such undelivered shares; provided, however that such request shall be presumed to have been made by such Holder if Stockholder Approval shall not have been obtained prior to the date on which the Notice of Conversion is delivered to the Corporation. For purposes of this Section 6.5.3, the “Fair Value” of shares shall be fixed with reference to the last reported Closing Sale Price on the principal Trading Market on which the Common Stock is listed as of the Trading Day immediately prior to the date on which the Notice of Conversion is delivered to the Corporation. For the avoidance of doubt, the cash settlement provisions set forth in this Section 6.5.3 shall be available irrespective of the reason for the Corporation’s failure to timely deliver Conversion Shares (other than a failure caused by (i) materially incorrect or incomplete information provided by Holder to the Corporation or (ii) the application of the Beneficial Ownership Limitation after Stockholder Approval (but, prior to the Stockholder Approval, disregarding for such purpose any Beneficial Ownership Limitation)), including due to limitations set forth in Section 6.5.6, the lack of obtaining Stockholder Approval, or due to applicable Trading Market rules.

Cash Settlement. If(a) Upon (1) receipt by the Collateral Agent of a notice from the Stock Purchase Contract Agent promptly after 5:00 p.m. (New York City time) on the eleventh (11th) Business Day immediately preceding each scheduled Stock Purchase Date with respect to notices from Holders of Normal Common Equity Units that such Holders have elected, at any time after in accordance with the earlier of Stockholder Approval or six months after the initial issuance procedures specified in Section 5.2(b)(i) of the Series A Non-Voting Preferred StockStock Purchase Contract Agreement, to effect a Cash Settlement, and (2) receipt from such Holder by the Corporation fails Securities Intermediary for credit to deliver to a Holder such certificate or certificates, or electronically deliver (or cause its transfer agent to electronically deliver) such shares in the case of a DWAC Delivery, pursuant to Section 6.5.1 on applicable Collateral Account at or prior to 5:00 p.m. (New York City time) on the third eleventh (3rd11th) Trading Business Day after immediately preceding the Share Delivery applicable Stock Purchase Date of the applicable Purchase Price in lawful money of the United States by certified or cashier’s check or wire transfer of immediately available funds payable to or upon the order of the Securities Intermediary, then, subject to receipt of instructions from the Company under Section 3.3(b), the Collateral Agent shall instruct the Securities Intermediary promptly to invest any such conversion (other than Cash in Permitted Investments maturing on the Stock Purchase Date. In the event of a failure caused by Successful Remarketing, upon receipt of Proceeds upon the maturity of the Permitted Investments on a Stock Purchase Date, the Collateral Agent shall (i) materially incorrect instruct the Securities Intermediary to pay the portion of such Proceeds and deliver any certified or incomplete information provided by Holder to the Corporation or (ii) the application of the Beneficial Ownership Limitation after Stockholder Approval (butcashier’s checks received, prior to the Stockholder Approval, disregarding for such purpose any Beneficial Ownership Limitation), then, unless the Holder has rescinded the applicable Notice of Conversion pursuant to Section 6.5.1, the Corporation shall, at the request of the Holder, pay in an aggregate amount equal to the Fair Value (as defined below) of such undelivered sharesPurchase Price, with such payment to be made within two Business Days from the date of request by the Holder, whereupon the Corporation’s obligations to deliver such shares underlying the Notice of Conversion shall be extinguished upon payment in full of the Fair Value of such undelivered shares; provided, however that such request shall be presumed to have been made by such Holder if Stockholder Approval shall not have been obtained prior to the date on which the Notice of Conversion is delivered to the Corporation. For purposes of this Section 6.5.3, the “Fair Value” of shares shall be fixed with reference to the last reported Closing Sale Price Company on the principal Trading Market on which the Common Stock is listed as of the Trading Day immediately prior to the date on which the Notice of Conversion is delivered to the Corporation. For the avoidance of doubtPurchase Date, the cash settlement provisions set forth in this Section 6.5.3 shall be available irrespective of the reason for the Corporation’s failure to timely deliver Conversion Shares (other than a failure caused by (i) materially incorrect or incomplete information provided by Holder to the Corporation or and (ii) the application release any amounts in excess of the Beneficial Ownership Limitation after Stockholder Approval (but, prior Purchase Price earned from such Permitted Investments to the Stockholder Approval, disregarding Stock Purchase Contract Agent for such purpose any Beneficial Ownership Limitation)), including due distribution to limitations set forth the Holders who elected to effect a Cash Settlement in Section 6.5.6, accordance with the lack of obtaining Stockholder Approval, or due to applicable Trading Market rulesStock Purchase Contract Agreement.

Cash Settlement. IfUnless (1) a Termination Event has occurred, at any time after the earlier of Stockholder Approval (2) a Holder effects an Early Settlement or six months after the initial issuance a Cash Merger Early Settlement of the Series underlying Purchase Contract, (3) a Special Event Redemption has occurred prior to the second Business Day immediately preceding the first day of the Final Remarketing Period, or (4) a Successful Optional Remarketing has occurred, each Holder of Corporate Units shall have the right to satisfy in Cash such Holder's Obligations with respect to the Purchase Contract Settlement Date. Each Holder of Corporate Units who intends to pay in Cash to satisfy such Holder's Obligations under the Purchase Contract with respect to the Purchase Contract Settlement Date shall notify the Purchase Contract Agent by use of a notice in substantially the form of Exhibit E hereto of his intention to pay in cash (a "Cash Settlement") the Purchase Price for the Common Stock to be purchased pursuant to the related Purchase Contract. Such notice shall be given prior to 5:00 p.m. (New York City time) on the second Business Day immediately preceding the first day of the Final Remarketing Period, but no earlier than the Company's notice of a Final Remarketing as set forth under clause (d)(i) below. Corporate Units Holders may only effect such a Cash Settlement pursuant to this Section 5.02(b) in integral multiples of 20 Corporate Units. A Non-Voting Preferred StockHolder of a Corporate Unit who has so notified the Purchase Contract Agent of his intention to effect a Cash Settlement in accordance with Section 5.02(b)(i) above shall pay the Purchase Price to the Securities Intermediary for deposit in the Collateral Account prior to 5:00 p.m. (New York City time) on the Business Day immediately preceding the first day of the Final Remarketing Period, in lawful money of the United States by certified or cashiers check or wire transfer in immediately available funds payable to or upon the order of the Securities Intermediary. If a Holder of a Corporate Unit fails to notify the Purchase Contract Agent of its intention to make a Cash Settlement in accordance with Section 5.02(b)(i), or does notify the Purchase Contract Agent as provided in Section 5.02(b)(i) of its intention to pay the Purchase Price in cash, but fails to make such payment as required by Section 5.02(b)(ii), such Holder shall be deemed to have consented to the disposition of the Senior Notes underlying the Pledged Applicable Ownership Interests in Senior Notes pursuant to any Remarketing occurring in the Final Remarketing Period as described in Section 5.02(c) below. Promptly after 5:00 p.m. (New York City time) on the Business Day preceding the first day of the Final Remarketing Period, the Corporation fails to deliver to a Holder such certificate or certificatesPurchase Contract Agent, or electronically deliver (or cause its transfer agent to electronically deliver) such shares in based on notices received by the case of a DWAC Delivery, Purchase Contract Agent pursuant to Section 6.5.1 on or 5.02(b)(i) hereof and notice from the Securities Intermediary regarding cash received by it prior to such time in a notice substantially in the third form of Exhibit J hereto, shall notify the Collateral Agent in writing of the aggregate principal amount of Senior Notes attributable to the Pledged Applicable Ownership Interests in Senior Notes to be remarketed in any Remarketing occurring in the Final Remarketing Period. Upon (3rd1) Trading Day receipt by the Collateral Agent of a notice from the Purchase Contract Agent in substantially the form of Exhibit P hereto promptly after the Share Delivery Date applicable receipt by the Purchase Contract Agent of a notice from a Holder of Corporate Units that such Holder has elected, in accordance with Section 5.02(b)(i) to effect a Cash Settlement and (2) the payment by such Holder of the Purchase Price in accordance with Section 5.02(b)(ii) above, the Collateral Agent shall: instruct the Securities Intermediary promptly to invest any such Cash in Permitted Investments consistent with the instructions of the Company as provided for below in this Section 5.02(b)(v); release from the Pledge the Senior Notes underlying the Pledged Applicable Ownership Interest in Senior Notes related to the Corporate Units as to which such Holder has effected a Cash Settlement; and instruct the Securities Intermediary to Transfer all such Senior Notes to the Purchase Contract Agent for distribution to such conversion (other than a failure caused by (i) materially incorrect or incomplete information Holder, in each case free and clear of the Pledge created hereby, whereupon the Purchase Contract Agent shall Transfer such Senior Notes in accordance with written instructions provided by the Holder thereof or, if no such instructions are given to the Corporation or (ii) the application of the Beneficial Ownership Limitation after Stockholder Approval (but, prior to the Stockholder Approval, disregarding for such purpose any Beneficial Ownership Limitation), then, unless the Holder has rescinded the applicable Notice of Conversion pursuant to Section 6.5.1, the Corporation shall, at the request of the Holder, pay an amount equal to the Fair Value (as defined below) of such undelivered shares, with such payment to be made within two Business Days from the date of request Purchase Contract Agent by the Holder, whereupon the Corporation’s obligations Purchase Contract Agent shall hold such Senior Notes, and any interest payment thereon, in the name of the Purchase Contract Agent or its nominee in trust for the benefit of such Holder until the expiration of the time period specified in the relevant abandoned property laws of the state where such Senior Notes and interest payments thereon, if any, are held. The Company shall instruct the Collateral Agent in writing as to the type of Permitted Investments in which any such Cash shall be invested; provided, however, that if the Company fails to deliver such shares underlying written instructions by 10:30 a.m. (New York City time) on the Notice of Conversion day such Cash is received by the Collateral Agent or to be reinvested by the Securities Intermediary, the Collateral Agent shall be extinguished upon payment instruct the Securities Intermediary to invest such Cash in full the Permitted Investments described in clause (6) of the Fair Value definition of Permitted Investments, and provided, further, however, that any such Permitted Investments shall mature on the Purchase Contract Settlement Date. The Collateral Agent may conclusively rely on any written direction and shall bear no liability for any loss or other damage based on acting or omitting to act under this Section 5.02 pursuant to any direction of the Company and in no event shall the Collateral Agent or Securities Intermediary be liable for the selection of Permitted Investments or for investment losses incurred thereon. The Collateral Agent and Securities Intermediary shall have no liability in respect of losses incurred as a result of the failure of the Company to provide timely written investment direction. Upon maturity of the Permitted Investments on the Purchase Contract Settlement Date, the Collateral Agent shall, and is hereby authorized to, (A) instruct the Securities Intermediary to remit to the Company on the Purchase Contract Settlement Date such portion of the proceeds of such undelivered shares; provided, however that such request shall be presumed to have been made by such Holder if Stockholder Approval shall not have been obtained prior Permitted Investments as is equal to the date on aggregate Purchase Price under all Purchase Contracts in respect of which the Notice of Conversion is delivered to the Corporation. For purposes of this Section 6.5.3, the “Fair Value” of shares shall be fixed with reference to the last reported Closing Sale Price on the principal Trading Market on which the Common Stock is listed Cash Settlement has been affected as of the Trading Day immediately prior to the date on which the Notice of Conversion is delivered to the Corporation. For the avoidance of doubt, the cash settlement provisions set forth provided in this Section 6.5.3 shall be available irrespective of the reason for the Corporation’s failure to timely deliver Conversion Shares (other than a failure caused by (i) materially incorrect or incomplete information provided by Holder 5.02 to the Corporation or Company on the Purchase Contract Settlement Date, and (iiB) the application release any amounts in excess of the Beneficial Ownership Limitation after Stockholder Approval (but, prior such amount earned from such Permitted Investments to the Stockholder Approval, disregarding Purchase Contract Agent for distribution to the Holders who have effected Cash Settlement pro-rata in proportion to the amount paid by such purpose any Beneficial Ownership Limitation)), including due to limitations set forth in Holders under Section 6.5.6, the lack of obtaining Stockholder Approval, or due to applicable Trading Market rules5.02(b)(ii) above.

Cash Settlement. IfUnless (1) a Termination Event has occurred, at any time after the earlier of Stockholder Approval (2) a Holder effects an Early Settlement or six months after the initial issuance a Cash Merger Early Settlement of the Series underlying Purchase Contract, (3) a Special Event Redemption has occurred prior to the second Business Day immediately preceding the first day of the Final Remarketing Period, or (4) a Successful Optional Remarketing has occurred, each Holder of Corporate Units shall have the right to satisfy in cash such Holder's Obligations with respect to the Purchase Contract Settlement Date. Each Holder of Corporate Units who intends to pay in cash to satisfy such Holder's Obligations under the Purchase Contract with respect to the Purchase Contract Settlement Date shall notify the Purchase Contract Agent by use of a notice in substantially the form of Exhibit E hereto of his intention to pay in cash (a "Cash Settlement") the Purchase Price for the Common Stock to be purchased pursuant to the related Purchase Contract. Such notice shall be given prior to 5:00 p.m. (New York City time) on the second Business Day immediately preceding the first day of the Final Remarketing Period, but no earlier than the Company's notice of a Final Remarketing as set forth under clause (d)(i) below. Corporate Units Holders may only effect such a Cash Settlement pursuant to this Section 5.02(b) in integral multiples of 20 Corporate Units. A Non-Voting Preferred StockHolder of a Corporate Unit who has so notified the Purchase Contract Agent of his intention to effect a Cash Settlement in accordance with Section 5.02(b)(i) above shall pay the Purchase Price to the Securities Intermediary for deposit in the Collateral Account prior to 5:00 p.m. (New York City time) on the Business Day immediately preceding the first day of the Final Remarketing Period, in lawful money of the United States by certified or cashiers check or wire transfer in immediately available funds payable to or upon the order of the Securities Intermediary. If a Holder of a Corporate Unit fails to notify the Purchase Contract Agent of its intention to make a Cash Settlement in accordance with Section 5.02(b)(i), or does notify the Purchase Contract Agent as provided in Section 5.02(b)(i) of its intention to pay the Purchase Price in cash, but fails to make such payment as required by Section 5.02(b)(ii), such Holder shall be deemed to have consented to the disposition of the Senior Notes underlying the Pledged Applicable Ownership Interests in Senior Notes pursuant to any Remarketing occurring in the Final Remarketing Period as described in Section 5.02(c) below. Promptly after 5:00 p.m. (New York City time) on the Business Day preceding the first day of the Final Remarketing Period, the Corporation fails to deliver to a Holder such certificate or certificatesPurchase Contract Agent, or electronically deliver (or cause its transfer agent to electronically deliver) such shares in based on notices received by the case of a DWAC Delivery, Purchase Contract Agent pursuant to Section 6.5.1 on or 5.02(b)(i) hereof and notice from the Securities Intermediary regarding cash received by it prior to such time in a notice substantially in the third form of Exhibit J hereto, shall notify the Collateral Agent in writing of the aggregate principal amount of Senior Notes attributable to the Pledged Applicable Ownership Interests in Senior Notes to be remarketed in any Remarketing occurring in the Final Remarketing Period. Upon (3rd1) Trading Day receipt by the Collateral Agent of a notice from the Purchase Contract Agent in substantially the form of Exhibit P hereto promptly after the Share Delivery Date applicable receipt by the Purchase Contract Agent of a notice from a Holder of Corporate Units that such Holder has elected, in accordance with Section 5.02(b)(i) to effect a Cash Settlement and (2) the payment by such Holder of the Purchase Price in accordance with Section 5.02(b)(ii) above, the Collateral Agent shall: instruct the Securities Intermediary promptly to invest any such Cash in Permitted Investments consistent with the instructions of the Company as provided for below in this Section 5.02(b)(v); release from the Pledge the Senior Notes underlying the Pledged Applicable Ownership Interest in Senior Notes related to the Corporate Units as to which such Holder has effected a Cash Settlement; and instruct the Securities Intermediary to Transfer all such Senior Notes to the Purchase Contract Agent for distribution to such conversion (other than a failure caused by (i) materially incorrect or incomplete information Holder, in each case free and clear of the Pledge created hereby, whereupon the Purchase Contract Agent shall Transfer such Senior Notes in accordance with written instructions provided by the Holder thereof or, if no such instructions are given to the Corporation or (ii) the application of the Beneficial Ownership Limitation after Stockholder Approval (but, prior to the Stockholder Approval, disregarding for such purpose any Beneficial Ownership Limitation), then, unless the Holder has rescinded the applicable Notice of Conversion pursuant to Section 6.5.1, the Corporation shall, at the request of the Holder, pay an amount equal to the Fair Value (as defined below) of such undelivered shares, with such payment to be made within two Business Days from the date of request Purchase Contract Agent by the Holder, whereupon the Corporation’s obligations Purchase Contract Agent shall hold such Senior Notes, and any interest payment thereon, in the name of the Purchase Contract Agent or its nominee in trust for the benefit of such Holder until the expiration of the time period specified in the relevant abandoned property laws of the state where such Senior Notes and interest payments thereon, if any, are held. The Company shall instruct the Collateral Agent in writing as to the type of Permitted Investments in which any such Cash shall be invested; provided, however, that if the Company fails to deliver such shares underlying written instructions by 10:30 a.m. (New York City time) on the Notice of Conversion day such Cash is received by the Collateral Agent or to be reinvested by the Securities Intermediary, the Collateral Agent shall be extinguished upon payment instruct the Securities Intermediary to invest such Cash in full the Permitted Investments described in clause (6) of the Fair Value definition of Permitted Investments, and provided, further, however, that any such Permitted Investments shall mature on the Purchase Contract Settlement Date. The Collateral Agent may conclusively rely on any written direction and shall bear no liability for any loss or other damage based on acting or omitting to act under this Section 5.02 pursuant to any direction of the Company and in no event shall the Collateral Agent or Securities Intermediary be liable for the selection of Permitted Investments or for investment losses incurred thereon. The Collateral Agent and Securities Intermediary shall have no liability in respect of losses incurred as a result of the failure of the Company to provide timely written investment direction. Upon maturity of the Permitted Investments on the Purchase Contract Settlement Date, the Collateral Agent shall, and is hereby authorized to, (A) instruct the Securities Intermediary to remit to the Company on the Purchase Contract Settlement Date such portion of the proceeds of such undelivered shares; provided, however that such request shall be presumed to have been made by such Holder if Stockholder Approval shall not have been obtained prior Permitted Investments as is equal to the date on aggregate Purchase Price under all Purchase Contracts in respect of which the Notice of Conversion is delivered to the Corporation. For purposes of this Section 6.5.3, the “Fair Value” of shares shall be fixed with reference to the last reported Closing Sale Price on the principal Trading Market on which the Common Stock is listed Cash Settlement has been affected as of the Trading Day immediately prior to the date on which the Notice of Conversion is delivered to the Corporation. For the avoidance of doubt, the cash settlement provisions set forth provided in this Section 6.5.3 shall be available irrespective of the reason for the Corporation’s failure to timely deliver Conversion Shares (other than a failure caused by (i) materially incorrect or incomplete information provided by Holder 5.02 to the Corporation or Company on the Purchase Contract Settlement Date, and (iiB) the application release any amounts in excess of the Beneficial Ownership Limitation after Stockholder Approval (but, prior such amount earned from such Permitted Investments to the Stockholder Approval, disregarding Purchase Contract Agent for distribution to the Holders who have effected Cash Settlement pro-rata in proportion to the amount paid by such purpose any Beneficial Ownership Limitation)), including due to limitations set forth in Holders under Section 6.5.6, the lack of obtaining Stockholder Approval, or due to applicable Trading Market rules5.02(b)(ii) above.

Cash Settlement. If, at any time after (a) Upon receipt by the earlier Collateral Agent of Stockholder Approval or six months after the initial issuance of the Series A Non-Voting Preferred Stock, the Corporation fails to deliver to a Holder such certificate or certificates, or electronically deliver (or cause its transfer agent to electronically deliver1) such shares in the case of a DWAC Delivery, pursuant to Section 6.5.1 on or prior to the third (3rd) Trading Day after the Share Delivery Date applicable to such conversion (other than a failure caused by (i) materially incorrect or incomplete information provided by a notice from the Purchase Contract Agent that a Holder of a Corporate Unit has elected, in accordance with the procedures specified in Section 5.4(a)(i) of the Purchase Contract Agreement, to the Corporation or settle its Purchase Contract with cash and (ii) the application payment by such Holder of the Beneficial Ownership Limitation after Stockholder Approval (but, amount required to settle the Purchase Contract prior to 11:00 a.m., New York City time, on the Stockholder Approvalsixth Business Day or (if all the Remarketings during the Final Remarketing Period result in a Failed Remarketing) one Business Day, disregarding for as applicable, immediately preceding the Purchase Contract Settlement Date, or (2) (i) a notice from the Purchase Contract Agent that a Holder of a Treasury Unit has elected, in accordance with the procedures specified in Section 5.4(c)(i) of the Purchase Contract Agreement, to settle its Purchase Contract with cash and (ii) payment by such purpose any Beneficial Ownership Limitation)Holder of the amount required to settle the Purchase Contract prior to 11:00 a.m., thenNew York City time, unless on the Holder has rescinded Business Day immediately preceding the applicable Notice of Conversion Purchase Contract Settlement Date, such payments pursuant to Section 6.5.1the foregoing clause (1) or clause (2) to be in lawful money of the United States and to be made by certified or cashiers’ check or wire transfer in immediately available funds payable to or upon the order of the Company, then the Collateral Agent shall, upon the written direction of the Company, promptly invest any cash received from a Holder in connection with a Cash Settlement in Permitted Investments. Upon receipt of the proceeds, if any, upon the maturity of the Permitted DB 1/ 148045215.3 Investments, the Corporation shallCollateral Agent shall pay the portion of such proceeds and deliver any certified or cashiers’ checks received, at the request of the Holder, pay in an aggregate amount equal to the Fair Value (as defined below) Purchase Price, to the Company on the Purchase Contract Settlement Date, and shall distribute any funds in respect of such undelivered sharesthe interest earned from the Permitted Investments, with such if any, to the Purchase Contract Agent for payment to be made within two Business Days from the date of request by the relevant Holder, whereupon the Corporation’s obligations to deliver such shares underlying the Notice of Conversion shall be extinguished upon payment in full of the Fair Value of such undelivered shares; provided, however that such request shall be presumed to have been made by such Holder if Stockholder Approval shall not have been obtained prior to the date on which the Notice of Conversion is delivered to the Corporation. For purposes of this Section 6.5.3, the “Fair Value” of shares shall be fixed with reference to the last reported Closing Sale Price on the principal Trading Market on which the Common Stock is listed as of the Trading Day immediately prior to the date on which the Notice of Conversion is delivered to the Corporation. For the avoidance of doubt, the cash settlement provisions set forth in this Section 6.5.3 shall be available irrespective of the reason for the Corporation’s failure to timely deliver Conversion Shares (other than a failure caused by (i) materially incorrect or incomplete information provided by Holder to the Corporation or (ii) the application of the Beneficial Ownership Limitation after Stockholder Approval (but, prior to the Stockholder Approval, disregarding for such purpose any Beneficial Ownership Limitation)), including due to limitations set forth in Section 6.5.6, the lack of obtaining Stockholder Approval, or due to applicable Trading Market rules.