Common use of Convertible Notes Clause in Contracts

Convertible Notes. Through and including the Effective Time, within the time periods required by the Company Indenture, the Company and its Subsidiaries shall take all such actions as may be required in accordance with, and subject to, the terms of the Company Indenture or under applicable Legal Requirements, including the giving of any notices that may be required and any repurchases or conversions of the Company Notes occurring, in each case as a result of, or in connection with, the execution and delivery of this Agreement or the consummation of the Merger or any other transaction contemplated hereby. Through and including the Effective Time, the Company shall undertake the preparation of, and shall execute and deliver at the times provided in the Company Indenture, any supplemental indentures, legal opinions, officers’ certificates or other documents or instruments required in connection with the execution and delivery of this Agreement or the consummation of the Merger and the other transactions contemplated hereby pursuant to the Company Indenture or under any Legal Requirements (including a supplemental indenture, officer’s certificate and opinion of counsel pursuant to Article XI and Sections 10.01, 10.05, 14.07 and 17.05 of the Company Indenture, in each case in form and substance reasonably acceptable to Purchaser and relating to the consummation of the Merger and the other transactions contemplated hereby, to be executed and delivered at or prior to the Effective Time). The Company shall provide Parent, Purchaser and their counsel reasonable opportunity (which shall not be less than three business days) 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 the Company Indenture prior to the dispatch or making thereof, and the Company shall promptly respond to any reasonable questions from, and reflect any reasonable comments made by, Parent or its counsel with respect thereto prior to the dispatch or making thereof. The Company shall use its reasonable best efforts to cause the trustee under the Company Indenture to execute any supplemental indenture described in this Section 6.16. In addition, the Company shall promptly notify Parent following the occurrence of any event that would require an adjustment to the conversion rate under the Company Indenture.

Convertible Notes. Through and including On the Effective Time, within the time periods required by the Company Indenture, the Company and its Subsidiaries shall take all such actions as may be required in accordance with, and subject to, the terms of the Company Indenture or under applicable Legal Requirements, including the giving of any notices that may be required and any repurchases or conversions of the Company Notes occurring, in each case as a result of, or in connection with, the execution and delivery of this Agreement or the consummation of the Merger or any other transaction contemplated hereby. Through and including the Effective TimeClosing Date, the Company shall undertake (a) deliver or cause to be delivered to the preparation oftrustee under the Indenture (the “Trustee”) written notice (the “Redemption Notice”) of the Company’s election to redeem all of the Convertible Notes thirty (30) days following the Closing (or, and shall execute and deliver at if such day is not a Business Day, the times provided in first Business Day thereafter) pursuant to Section 6.01 of the Company IndentureIndenture (the “Redemption”), together with any supplemental indenturescertificates, legal opinions, officers’ certificates opinions of counsel or other documents or instruments that may be required in connection with the execution and delivery of this Agreement the Redemption Notice to the Trustee, and (b) take such actions required to be taken by the Indenture in order to satisfy and discharge the Company’s obligations thereunder; provided, that Parent or the consummation of the Merger and the other transactions contemplated hereby pursuant Sub shall provide funds to the Company Indenture in an amount sufficient to pay, or under otherwise pay on behalf of the Company, the Redemption Price (as defined in the Indenture), together with all other prepayment, redemption or similar fees that may be payable in connection with the Redemption. In addition, the Company shall timely deliver or cause to be delivered to the Trustee and the holders of the Convertible Notes any Legal Requirements (including a supplemental indenturenotices, officer’s certificate and opinion publications, certificates, opinions of counsel pursuant and other communications required to Article XI be delivered, and Sections 10.01timely take any other actions required to be taken, 10.05, 14.07 and 17.05 of by the Company Indenture, in each case in form and substance reasonably acceptable to Purchaser and relating to respect of the consummation of Offer, the Merger and the other transactions contemplated hereby, . The Company shall not cause or permit a Default (as such term is defined in the Indenture) or an Event of Default (as such term is defined in the Indenture) to be executed and delivered at or occur prior to the Effective Time). The Company shall provide Parent, Purchaser Parent and their counsel Merger Sub with a reasonable opportunity (which shall not be less than three business days) to review and comment on any noticesall such notices (including the Redemption Notice), certificatespublications and other communications to holders of the Convertible Notes or the Trustee, press releases, supplemental indentures, legal opinions, officers’ certificates or other documents or instruments deliverable pursuant to or in connection with the Company Indenture prior to the dispatch their delivery or making thereofpublication, and the Company shall promptly respond give reasonable and good faith consideration to any reasonable questions from, and reflect any reasonable comments made by, by Parent or its counsel with respect thereto prior to the dispatch or making thereofand Merger Sub. The Company shall use its reasonable best efforts to cause the trustee under provide Parent with copies of all such notices, publications and other communications. The Company shall promptly provide Parent and Merger Sub with (i) any communications, whether written or oral, that the Company Indenture or its counsel may receive from any holder of the Convertible Notes or the Trustee promptly after the receipt thereof, and (ii) a reasonable opportunity to execute participate with the Company or its counsel in any supplemental indenture described material discussions or meetings with any holder of the Convertible Notes or the Trustee. Between the date of this Agreement and the Effective Time or the earlier termination of this Agreement in this Section 6.16. In additionaccordance with its terms, the Company shall promptly notify use commercially reasonable efforts to coordinate discussions among the Company, Parent following and the Trustee regarding the Redemption. Notwithstanding anything to the contrary in this Section 5.15, nothing herein shall require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with any Convertible Note or this Section 5.15 (including in connection with the settlement of any conversion obligation), prior to the occurrence of any event that would require an adjustment to the conversion rate under the Company IndentureEffective Time.

Convertible Notes. Through (a) The parties hereto expressly acknowledge and including the Effective Timeagree that, within the time periods required by the Company Indenture, the Company and its Subsidiaries shall take all such actions except as may be required in accordance withwith Section 4.18(b), the Convertible Notes will not be assumed by the Company, Purchaser or any Affiliate thereof and will constitute Retained Liabilities. Seller may, in its reasonable discretion, take actions to amend the Indenture prior to the Closing to delete Article 11 (and, in Seller’s sole discretion, to delete or modify other provisions) of the Indenture, including conducting a tender offer and/or consent solicitation in accordance with applicable Law to acquire the Convertible Notes and/or effect such amendments to the Indenture on such terms and conditions as Seller, in its reasonable discretion, determines (a “Debt Tender Offer”). Seller shall keep Purchaser reasonably informed with respect to the status of the actions taken pursuant to the foregoing. For the avoidance of doubt, neither the commencement nor consummation of a Debt Tender Offer shall in any event constitute a condition to Closing under Article V. Table of Contents (b) In the event that, at or after the Closing the Indenture has not been amended as permitted in Section 4.18(a) and a court of competent jurisdiction has determined in a final, non-appealable judgment or a judgment that Seller determines, in its reasonable discretion, not to appeal, that the Transactions constitute a sale, conveyance, transfer or lease of all or substantially all of Seller’s properties and assets to another Person (as defined in the Indenture) or otherwise issues a ruling with substantially the same effect: (i) Seller and the Company will execute and deliver as promptly as practicable following such judgment a supplemental indenture and such instruments, certificates, opinions, agreements and other documents as may be necessary to cause Seller and the Company to satisfy the requirements of the Indenture, including Article 11 thereof, including by causing the Company to assume all of Seller’s obligations under the Convertible Notes and the Indenture, effective upon consummation of the Transactions; (ii) the Company shall (A) notify Seller in writing not later than 10:00 a.m. (New York City time) on the next Business Day following the Company’s receipt of a Notice of Conversion (as defined in the Indenture) in respect of the conversion of any Convertible Note by a holder thereof, and subject to(B) elect to satisfy its Conversion Obligation (as defined in the Indenture) with respect to such conversion by Cash Settlement (as defined in the Indenture), by Physical Settlement (as defined in the terms of Indenture) or by Combination Settlement (as defined in the Company Indenture or under applicable Legal Requirements, including the giving of any notices that may be required and any repurchases or conversions of the Company Notes occurringIndenture), in each case in accordance with the Indenture and as a result ofdirected in writing by Seller in its sole discretion; provided, that if Seller does not deliver written notice to the Company by 3:00 p.m. (New York City time) on the date it receives the Company’s notice specifying the Settlement Method (as defined in the Indenture) by which the Conversion Obligation should be satisfied, Seller will be deemed to have specified Cash Settlement; and, provided, further, that if Seller specifies Combination Settlement but does not indicate the Specified Dollar Amount (as defined in the Indenture) per $1,000 principal amount of Convertible Notes, the Specified Dollar Amount per $1,000 principal amount of Convertible Notes shall be $1,000; (iii) at Seller’s election, either (A) the Purchase Price shall be reduced by the principal amount ($1,000 per Convertible Note) of the Convertible Notes that remain outstanding immediately prior to the Closing (the “Principal Amount”), or (B) Seller shall pay to the Company at the Closing the Principal Amount (in connection withwhich case such payment shall have no impact on the amount of the Purchase Price); provided that, if the execution and delivery of this Agreement or by the consummation Company of the Merger or any other transaction contemplated hereby. Through and including supplemental indenture described in Section 4.18(b)(i) occurs after the Effective TimeClosing, Seller shall pay to the Company promptly after such execution and delivery the Principal Amount (in which case such payment shall undertake have no impact on the preparation of, and shall execute and deliver at amount of the times provided in the Company Indenture, any supplemental indentures, legal opinions, officers’ certificates or other documents or instruments required in connection Purchase Price); (iv) simultaneously with the execution and delivery of this Agreement or by the consummation Company of the Merger supplemental indenture described in Section 4.18(b)(i), Seller, the Table of Contents Company, Purchaser and a mutually agreed escrow agent will enter into an escrow agreement pursuant to which (A) Purchaser shall, or shall cause the other transactions contemplated hereby pursuant Company to, deposit the Principal Amount into an escrow account (the “Escrow Account”); (B) all or a portion of the Principal Amount not to exceed $1,000 per Convertible Note shall be released from the Escrow Account and applied toward payments to holders of Convertible Notes of (x) the principal due upon maturity of the Convertible Notes, (y) the Settlement Amount (as defined in the Indenture) due upon Cash Settlement, or (z) the Specified Dollar Amount due upon Combination Settlement; (C) all or a portion of the Principal Amount not to exceed $1,000 per Convertible Note shall be released from the Escrow Account and paid to Seller (x) in respect of any Physical Settlement, in an amount equal to the principal amount of any Convertible Notes settled by Physical Settlement or (y) in respect of any Combination Settlements, (I) the principal amount of any Convertible Notes settled by Combination Settlement less (II) the Specified Dollar Amount; and (D) any funds held in the Escrow Account that are not paid to holders of Convertible Notes will, within five (5) Business Days following the later of (x) the earlier of (1) the Maturity Date (as defined in the Indenture), or (2) the date upon which all Convertible Notes have been converted or repurchased and (y) the final satisfaction and settlement by Seller of any further excess obligations relating to or arising out of the Convertible Notes; (v) in the case of any Cash Settlement or Combination Settlement, if application of the funds in the Escrow Account is not sufficient to pay the Settlement Amount to the holders of Convertible Notes as required under the Indenture, then Seller will provide the amount of any cash shortfall by wire transfer of immediately available funds to the Company Indenture not less than one (1) Business Day prior to the date such payments are required to be made to such holders; (vi) in the case of any Combination Settlement or Physical Settlement, Seller will provide the number of shares of Seller Common Stock (which shall be duly authorized and issued) to the Company required to satisfy the Conversion Obligation by no later than 10:00 a.m. (New York City time) at least two (2) Business Days prior to the date such shares are required to be delivered to such holders; (vii) until the later of (A) the earlier of (1) the Maturity Date (as defined in the Indenture), or (2) the date upon which all Convertible Notes have been converted or repurchased and (B) the final satisfaction and settlement by Seller of any further excess obligations relating to or arising out of the Convertible Notes, Seller (x) shall at all times reserve and keep available, out of its authorized but unissued Seller Common Stock, solely for the purpose of providing for its obligations under this Section 4.18 and the Convertible Notes, the aggregate number of shares of Seller Common Stock issuable under the Convertible Notes in accordance with the terms thereof, and (y) shall not adopt or enter into, or permit to be adopted or entered into, a plan of complete or partial liquidation or dissolution unless Seller has made provisions reasonably acceptable to Purchaser for the final satisfaction and settlement of any Legal Requirements further excess obligations relating to or arising out of the Convertible Notes; (including viii) if Seller (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such Table of Contents consolidation or merger or (ii) enters into any agreement with a supplemental indenture, officer’s certificate and opinion of counsel Third Party pursuant to Article XI and Sections 10.01which such Third Party acquires, 10.05directly or indirectly, 14.07 and 17.05 in one transaction or a series of transactions, pursuant to a merger, consolidation, business combination, sale of shares of capital stock, tender offer, exchange offer or similar transaction (x) beneficial ownership (as defined under Section 13(d) of the Company IndentureExchange Act), including if such ownership is through the equityholders of any such Third Party, of more than fifty percent (50%) of any class of equity securities of Seller or (y) any one or more assets or businesses of Seller and its Subsidiaries that constitute more than fifty percent (50%) of the consolidated assets of Seller, then, in each case, Seller shall make proper provision so that the continuing or surviving entity or acquiror (or, if applicable, at Purchaser’s election, the ultimate parent company of such continuing or surviving entity or acquiror), as the case may be, assumes in writing (in form and substance reasonably acceptable to Purchaser Purchaser), on a joint and relating to the consummation several basis, all of the Merger and obligations of Seller set forth in this Section 4.18; and (ix) except as set forth in this Section 4.18(b), Seller will not be required to pay any amount greater than the other transactions contemplated hereby, principal amount of any Convertible Note to be executed and delivered at or purchase any Convertible Note prior to the Effective TimeMaturity Date unless Seller agrees to do so in its sole discretion (or unless the Company would be required to do so under the terms of the Indenture). The Company obligations under Section 4.18(b) shall provide Parentterminate and shall become null and void, and there shall be no liability on the part of any party hereto under Section 4.18(b), and all rights and obligations of any party hereto under Section 4.18(b) shall cease, if prior to the Closing, (i) pursuant to the Debt Tender Offer or otherwise, the Indenture is amended to permit the Transactions without assumption of the Convertible Notes by the Company, Purchaser or any Affiliate thereof or (ii) a court of competent jurisdiction determines in a final, non-appealable judgment, that the Transactions do not constitute a sale, conveyance, transfer or lease of all or substantially all of Seller’s properties and assets to another Person (as defined in the Indenture) or otherwise issues a ruling with substantially the same effect. Notwithstanding the foregoing, any and all actions by the Company, Purchaser and their counsel reasonable opportunity respective Affiliates under this Section 4.18 shall be taken at Seller’s sole cost and expense, and Seller shall indemnify, defend and hold harmless Purchaser and its Affiliates (which shall not be less than three business daysincluding, from and after the Closing, the Company) from and against any and all Losses (including for the avoidance of doubt any Losses relating to review and comment on any noticessecurities laws) relating to, certificates, press releases, supplemental indentures, legal opinions, officers’ certificates arising out of or other documents or instruments deliverable pursuant to resulting from the Convertible Notes (including in connection with the Transactions or in connection with the Company Indenture prior conversion of any such Convertible Notes), but excluding any Losses to the dispatch extent fully satisfied by recourse to funds in the Escrow Account in accordance with Section 4.18(b), excluding any Losses to the extent directly resulting from any action or making thereofinaction by the Company in material breach (subject to applicable cure rights and periods) of the Indenture or by Purchaser in material breach of the provisions of this Section 4.18, and excluding, for the Company shall promptly respond to avoidance of doubt, any reasonable questions from, and reflect premium that may be payable in connection with a tender offer that is voluntarily commenced by Purchaser or any reasonable comments made by, Parent or of its counsel with respect thereto prior to the dispatch or making thereof. The Company shall use its reasonable best efforts to cause the trustee under the Company Indenture to execute any supplemental indenture described in this Section 6.16. In addition, the Company shall promptly notify Parent Affiliates following the occurrence Closing without Seller’s prior written consent. Table of any event that would require an adjustment to the conversion rate under the Company Indenture.Contents

Convertible Notes. Through and including the Effective Time, within the time periods required by the (a) The Company Indenture, the Company and its Subsidiaries shall take all such actions as may be required in accordance with, and subject toto the terms of, the terms applicable provisions of the Company Indenture or under applicable Legal RequirementsIndenture, including the giving of any notices required by the Company Indenture (including those notices that may be required pursuant to Section 11.02, Section 15.01(b), Section 15.02, Section 15.03, Section 15.06, 15.09 and Section 19.02 thereof, in each case to the extent applicable) in connection with the Transactions and any repurchases or conversions of the Convertible Notes issued under the Company Notes occurring, in each case Indenture occurring as a result of, of or in connection with, with the execution and delivery of transactions contemplated by this Agreement or the consummation of the Merger or any other transaction contemplated hereby. Through and including the Effective Time, the Company shall undertake the preparation of, and shall execute and deliver at the times provided constituting a Fundamental Change (as defined in the Company Indenture). (b) The Company shall, prior to the Closing Date, prepare any supplemental indentures, legal opinions, officers’ certificates or other documents or instruments indentures required in connection with the execution Transactions and delivery of this Agreement or the consummation of the Merger and the other transactions contemplated hereby pursuant to the Company Indenture or under any Legal Requirements (including a supplemental indenture, officer’s certificate and opinion of counsel pursuant to Article XI and Sections 10.01, 10.05, 14.07 and 17.05 of the Company Indenture, in each case in form and substance reasonably acceptable to Purchaser and relating to the consummation of the Merger and the other transactions contemplated hereby, thereof to be executed and delivered to the Trustee (as defined in the Company Indenture) at or prior to the Effective TimeTime and satisfactory in form and substance to the Trustee. (c) The Company shall not make any settlement election (including, for the avoidance of doubt, by not delivering a Settlement Notice (as defined in the Company Indenture) with respect to any Conversion Date (as defined in the Company Indenture). ) under the Company Indenture without the prior written consent of Parent, which consent shall not be unreasonably withheld, conditioned or delayed. (d) The Company shall take all such further actions, including the delivery of any officers’ certificates and opinions of counsel required by the Company Indenture (including by Section 4.01, Section 11.05, Section 12.03 and Section 15.06 thereof, in each case to the extent applicable) as may be necessary to comply with all of the terms and conditions of the Company Indenture in connection with the Transactions. (e) The Company shall provide Parent, Purchaser Parent and their its counsel reasonable opportunity (which shall not be less than three business days) to review and comment on any written notice or communication and any notices, certificates, press releases, supplemental indentures, legal opinions, officers’ certificates or other documents or instruments deliverable pursuant to or in connection with the Company Indenture prior to the dispatch or making thereof, and the Company shall promptly respond to any reasonable questions from, and reflect any reasonable comments made by, consult with Parent or its counsel with respect thereto and give due consideration to any recommendations made by Parent or its counsel prior to the dispatch or making thereof. . (f) The Company shall use its reasonable best efforts represents and warrants to cause Parent and Merger Sub that, concurrently with the trustee under execution and delivery of this Agreement, each of the Company Indenture to execute any supplemental indenture described in this Section 6.16. In addition, Bond Hedge Transaction and the Company shall promptly notify Parent following Warrants, and the occurrence respective rights and obligations of any event that would require an adjustment the Company and the counterparty to the conversion rate under Company Bond Hedge Transaction and the Company IndentureWarrants, have been terminated, cancelled and extinguished and deemed satisfied and discharged in full with neither the Company nor the counterparty to the Company Bond Hedge Transaction and the Company Warrants obligated to make or receive any payment in connection with such termination.