Common use of Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege Clause in Contracts

Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege. If (1) there shall occur (a) any reclassification of the Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or a change as a result of a subdivision or combination of Common Stock); (b) a statutory share exchange, consolidation, merger or combination involving the Company other than a merger in which the Company is the continuing corporation and which does not result in any reclassification of, or change (other than in par value, or from par value to no par value, or from no par value to par value, or a change as a result of a subdivision or combination of Common Stock) in, outstanding shares of Common Stock; or (c) a sale or conveyance as an entirety or substantially as an entirety of the property and assets of the Company, directly or indirectly, to another Person; and (2) pursuant to such reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, holders of outstanding shares of Common Stock would be entitled to receive stock (other than Common Stock), other securities, other property, assets or Cash (or any combination thereof) for such shares of Common Stock (any such event a “Merger Event”), then the Company, or such successor or surviving, purchasing or transferee Person, as the case may be, shall, as a condition precedent to such Merger Event, execute and deliver to the Trustee a supplemental indenture signed by the principal executive officer, principal financial officer or principal accounting officer of the Company and at least one other Officer of the Company and providing that, at the effective time of the Merger Event, the right to convert a Security will be changed into a right to convert it into the kind and amount of shares of stock, other securities or other property or assets (including Cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property”) upon such transaction (assuming for such purposes that such conversion were settled entirely in Common Stock and without giving effect to any adjustment to the Conversion Rate with respect to a Make-Whole Fundamental Change) immediately prior to such Merger Event, except that such Holders will not be entitled to an increase in the Conversion Rate if such Holder does not convert its Securities “in connection with” the relevant Fundamental Change. If the Merger Event causes the Common Stock to be converted into the right to receive more than a single type of consideration (determined based in part upon any form of shareholder election), the Reference Property into which the Securities will be convertible will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election. None of the foregoing provisions shall affect the right of a holder of Securities to convert its Securities in accordance with the provisions of this Article 4 prior to the effective date of such Merger Event. Such supplemental indenture shall provide for adjustments of the Base Conversion Rate which shall be as nearly equivalent as may be practicable to the adjustments of the Base Conversion Rate provided for in this Article 4. The provisions of this Section 4.09 shall similarly apply to successive Merger Events.

Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege. If (1) there shall occur (a) any reclassification of the Common Stock (other than a change only in par value, or from par value to no par value, or from no par value to par value, or a change as a result of a subdivision or combination of Common Stock); (b) a statutory share exchange, consolidation, merger or combination involving the Company other than a merger in which the Company is the continuing corporation and which does not result in any reclassification of, or change (other than in par value, or from par value to no par value, or from no par value to par value, or a change as a result of a subdivision or combination of Common Stock) in, outstanding shares of Common Stock; or (c) a sale or conveyance as an entirety or substantially as an entirety of the property and assets of the Company, directly or indirectly, to another Person; and (2) pursuant to such reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, holders of outstanding shares of Common Stock would be entitled to receive stock (other than Common Stock), other securities, other property, assets or Cash (or any combination thereof) for such shares of Common Stock (any such event a “Merger Reorganization Event”), then the Company, or such successor or surviving, purchasing or transferee Person, as the case may be, shall, as a condition precedent to such Merger Reorganization Event, execute and deliver to the Trustee a supplemental indenture signed by the principal executive officer, principal financial officer or principal accounting officer of the Company and at least one other Officer of the Company and providing that, at the effective time of the Merger Reorganization Event, the right to convert a Security settlement of the Securities tendered for conversion will be changed into a right to convert it into based on, and the property deliverable in respect of any such settlement will consist of, the kind and amount of shares of stock, other securities or other property or assets (including Cash or any combination thereof) that a holder of a number holders of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been are entitled to receive in respect of each share of Common Stock upon such Reorganization Event (the “Reference Property”) upon such transaction (assuming for such purposes that such conversion were settled entirely in Common Stock and without giving effect to any adjustment to the Conversion Rate with respect to a Make-Whole Fundamental Change) immediately prior to such Merger Event, except that such Holders will not be entitled to an increase in the Conversion Rate if such Holder does not convert its Securities “in connection with” the relevant Fundamental Change). If the Merger Reorganization Event causes the Common Stock to be converted into the right to receive more than a single type of consideration (determined based in part upon any form of shareholder election), the Reference Property into which the Securities will be convertible will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election. None of the foregoing provisions shall affect the right of a holder of Securities to convert its Securities in accordance with the provisions of this Article 4 prior to the effective date of such Merger Reorganization Event. Such supplemental indenture shall provide for adjustments of the Base Conversion Rate which shall be as nearly equivalent as may be practicable to the adjustments of the Base Conversion Rate provided for in this Article 4. The provisions of this Section 4.09 shall similarly apply to successive Merger Reorganization Events.

Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege. Subject to the further provisions of this Article 4 and paragraph 9 in the terms of the Form of Note, in the event the Company (i) reclassifies or changes its Common Stock (other than changes resulting from a subdivision or combination) or (ii) consolidates or combines with or merges into any Person or sells or conveys to another Person all or substantially all of its property and assets, and the holders of the Company’s Common Stock receive stock, other securities or other property or assets (including cash or any combination thereof) with respect to or in exchange for their Common Stock, the Holders will thereby have the continuing right to convert their Notes into the consideration they would have received if they had converted their Notes immediately prior to such re-classification, change, consolidation, merger, sale or conveyance (the “Conversion Securities”). If (1) there any of the following shall occur occur, namely: (a) any reclassification or change of shares of Common Stock issuable upon conversion of the Common Stock Notes (other than a change in par value, or from par value to no par value, or from no par value to par value, or a change as a result of a subdivision or combination of Common Stockcombination, or any other change for which an adjustment is provided in Section 4.05); (b) a statutory share exchange, consolidation, any consolidation or merger or combination involving to which the Company is a party other than a merger in which the Company is the continuing corporation and which does not result in any reclassification of, or change (other than in par value, or from par value to no par value, or from no par value to par value, or a change as a result of a subdivision or combination of Common Stockcombination) in, outstanding shares of Common Stock; or (c) a any sale or conveyance as an entirety or substantially as an entirety of the property and assets of the Company, directly or indirectly, to another Person; and (2) pursuant to such reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, holders of outstanding shares of Common Stock would be entitled to receive stock (other than Common Stock), other securities, other property, assets or Cash (or any combination thereof) for such shares of Common Stock (any such event a “Merger Event”)person, then the Company, or such successor or survivingsuccessor, purchasing or transferee Personcorporation, as the case may be, shall, as a condition precedent to such Merger Eventreclassification, change, combination, consolidation, merger, sale or conveyance, execute and deliver to the Trustee a supplemental indenture signed by providing that the principal executive officer, principal financial officer or principal accounting officer Holder of the Company and at least one other Officer of the Company and providing that, at the effective time of the Merger Event, each Note then outstanding shall have the right to convert a Security will be changed into a right to convert it such Note into the kind and amount of shares of stock, stock and other securities or other and property or assets (including Cash cash) receivable upon such reclassification, change, combination, consolidation, merger, sale or any combination thereof) that conveyance by a holder of a the number of shares of Common Stock equal to the Conversion Rate deliverable upon conversion of such Note immediately prior to such Merger Event would have owned reclassification, change, combination, consolidation, merger, sale or been entitled to receive (the “Reference Property”) upon such transaction (assuming for such purposes that such conversion were settled entirely in Common Stock and without giving effect to any adjustment to the Conversion Rate with respect to a Make-Whole Fundamental Change) immediately prior to such Merger Event, except that such Holders will not be entitled to an increase in the Conversion Rate if such Holder does not convert its Securities “in connection with” the relevant Fundamental Change. If the Merger Event causes the Common Stock to be converted into the right to receive more than a single type of consideration (determined based in part upon any form of shareholder election), the Reference Property into which the Securities will be convertible will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election. None of the foregoing provisions shall affect the right of a holder of Securities to convert its Securities in accordance with the provisions of this Article 4 prior to the effective date of such Merger Eventconveyance. Such supplemental indenture shall provide for adjustments of the Base Conversion Rate Price which shall be as nearly equivalent as may be practicable to the adjustments of the Base Conversion Rate Price provided for in this Article 4. If, in the case of any such consolidation, merger, combination, sale or conveyance, the stock or other securities and property (including cash) receivable thereupon by a holder of Common Stock include shares of stock or other securities and property of a person other than the successor, purchasing or transferee corporation, as the case may be, in such consolidation, merger, combination, sale or conveyance, then such supplemental indenture shall also be executed by such other person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors shall reasonably consider necessary by reason of the foregoing. The provisions of this Section 4.09 4.12 shall similarly apply to successive Merger Eventsreclassifications, changes, combinations, consolidations, mergers, sales or conveyances. In the event the Company shall execute a supplemental indenture pursuant to this Section 4.12, the Company shall promptly file with the Trustee (x) an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of shares of stock or other securities or property (including cash) receivable by Holders of the Notes upon the conversion of their Notes after any such reclassification, change, combination, consolidation, merger, sale or conveyance, any adjustment to be made with respect thereto and that all conditions precedent have been complied with and (y) an Opinion of Counsel that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders.

Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege. If (1) there shall occur (a) any reclassification of the Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or a change as a result of a subdivision or combination of the Common Stock); (b) a statutory share exchange, consolidation, merger or combination involving the Company other than a merger in which the Company is the continuing corporation and which does not result in any reclassification of, or change (other than in par value, or from par value to no par value, or from no par value to par value, or a change as a result of a subdivision or combination of Common Stock) in, outstanding shares of Common StockCompany; or (c) a sale or conveyance as an entirety or substantially as an entirety of the property and assets of the Company, directly or indirectly, to another Person; and (2) pursuant to such reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, holders of outstanding shares of Common Stock would be entitled to receive stock (other than Common Stock)stock, other securities, other property, property or assets or (including Cash (or any combination thereof) for such shares of Common Stock (any such event a “Merger Event”), then the Company, or such successor or surviving, purchasing or transferee Person, as the case may be, shall, as a condition precedent to such Merger Event, execute and deliver to the Trustee a supplemental indenture signed by the principal executive officer, principal financial officer or principal accounting officer of the Company and at least one other Officer of the Company and providing that, at the effective time of the Merger Event, the right to convert a Security will be changed into a right to convert it into the kind and amount of shares of stock, other securities or other property or assets (including Cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property”) upon such transaction (assuming for such purposes that such conversion were settled entirely in Common Stock and without giving effect to any adjustment to the Conversion Rate with respect to a Make-Whole Fundamental Change) immediately prior to such Merger Event, except that such Holders will not be entitled to an increase in the Conversion Rate if such Holder does not convert its Securities “in connection with” the relevant Fundamental Change. If the Merger Event causes the Common Stock to be converted into the right to receive more than a single type of consideration (determined based in part upon any form of shareholder election), the Reference Property into which the Securities will be convertible will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election. None of the foregoing provisions shall affect the right of a holder of Securities to convert its Securities in accordance with the provisions of this Article 4 prior to the effective date of such Merger Event. Such supplemental indenture shall provide for adjustments of the Base Conversion Rate which shall be as nearly equivalent as may be practicable to the adjustments of the Base Conversion Rate provided for in this Article 4. The provisions of this Section 4.09 shall similarly apply to successive Merger Events.

Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege. If (1) there shall occur (a) any reclassification of the Company’s Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or a change as a result of a subdivision or combination of Common Stockcombination); (b) a statutory share exchange, consolidation, merger or combination involving the Company other than a merger in which the Company is the continuing corporation and which does not result in any reclassification of, or change (other than in par value, or from par value to no par value, or from no par value to par value, or a change as a result of a subdivision or combination of Common Stockcombination) in, outstanding shares of Common Stock; or (c) a sale or conveyance as an entirety or substantially as an entirety of the property and assets of the Company, directly or indirectly, to another Person; and (2) pursuant to such reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, holders of outstanding shares of Common Stock would be entitled to receive stock (other than Common Stock), other securities, other property, assets or Cash (or any combination thereof) for such shares of Common Stock (any such event a “Merger Event”), then the Company, or such successor or surviving, purchasing or transferee Person, as the case may be, shall, as a condition precedent to such Merger Event, execute and deliver to the Trustee a supplemental indenture signed by the principal executive officer, principal financial officer or principal accounting officer of the Company and at least one other Officer of the Company and providing that, at the effective time of the Merger Event, the right to convert a Security will be changed into a right to convert it into the kind and amount of shares of stock, other securities or other property or assets (including Cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property”) upon such transaction (assuming for such purposes that such conversion were settled entirely in Common Stock and without giving effect to any adjustment to the Conversion Rate with respect to a Make-Whole Fundamental Change) immediately prior to such Merger Event, except that such Holders will not be entitled to an increase in the Conversion Rate if such Holder does not convert its Securities “in connection with” the relevant Fundamental Change. If the Merger Event causes the Common Stock to be converted into the right to receive more than a single type of consideration (determined based in part upon any form of shareholder stockholder election), the Reference Property into which the Securities will be convertible will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election. None of the foregoing provisions shall affect the right of a holder of Securities to convert its Securities in accordance with the provisions of this Article 4 prior to the effective date of such Merger Event. Such supplemental indenture shall provide for adjustments of the Base Conversion Rate which shall be as nearly equivalent as may be practicable to the adjustments of the Base Conversion Rate provided for in this Article 4. The provisions of this Section 4.09 shall similarly apply to successive Merger Events.

Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege. If (1) there shall occur In the event of: (a) any recapitalization, reclassification or change of the Company’s Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or a change as a result of a subdivision or combination of Common Stockcombination, or any other change for which an adjustment is provided in Section 5.06); (b) a statutory share exchange, any consolidation, merger or combination involving the Company other than a merger in which the Company is the continuing corporation and which does not result in any reclassification of, or change (other than in par value, or from par value to no par value, or from no par value to par value, or a change as a result of a subdivision or combination of Common Stockcombination) in, outstanding shares of Common Stock; or (c) a sale sale, lease or conveyance as an entirety other transfer of all or substantially as an entirety all of the consolidated property and assets of the CompanyCompany and its Subsidiaries, directly or indirectly, to another Person; and or (2d) pursuant to such reclassification, a statutory share exchange, consolidation, merger, combination, sale or conveyance, holders of outstanding shares of Common Stock would be entitled to receive stock (other than Common Stock), other securities, other property, assets or Cash (or any combination thereof) for such shares of Common Stock exchange (any such event a “Merger Event”), then the Companyin which holders of Common Stock would be entitled to receive shares of stock, or such other securities, property, assets or cash (or combination thereof) for their shares of Common Stock, then, the Company or the successor or surviving, purchasing or transferee Personcompany, as the case may be, shall, as a condition precedent to such Merger Event, will execute and deliver to with the Trustee a supplemental indenture signed by the principal executive officer, principal financial officer or principal accounting officer of the Company and at least one other Officer of the Company and providing that, that at the effective time of the any such Merger Event, the Holder of each Security then outstanding shall have the right to convert a such Security will be changed into a right to convert it into the kind and amount of shares of stock, other securities or other property securities, property, assets or assets cash (including Cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property”) upon such transaction (assuming for such purposes that such conversion were settled entirely in Common Stock and without giving effect to any adjustment to the Conversion Rate connection with respect to a Make-Whole Fundamental Change) immediately prior to such Merger Event. However, except that such Holders at and after the effective time of the Merger Event, (i) the amount otherwise payable in cash upon conversion of the Securities pursuant to Section 5.03 will not continue to be entitled payable in cash, (ii) the Company shall continue to an increase have the right to determine the form of consideration to be paid or delivered, as the case may be, in respect of the remainder, if any, of the Conversion Obligation in excess of the principal amount of the Securities being converted as set forth under Section 5.03, (iii) the number of shares of Common Stock, if any, otherwise deliverable upon conversion of the Securities pursuant to Section 5.03 will instead be deliverable in the Conversion Rate if amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Holder does not convert its Securities “Merger Event and (iv) the Daily VWAP will be calculated based on the value of a unit of Reference Property that a holder of one share of Common Stock would have received in connection with” the relevant Fundamental Changesuch Merger Event. If the Merger Event causes the Common Stock to be converted into the right to receive more than a single type of consideration (determined based in part upon any form of shareholder stockholder election), the Reference Property into which the Securities will be convertible will be deemed to be (a) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such election or (b) if no holders of Common Stock affirmatively make such an election, the types and amounts of consideration actually received by the holders of Common Stock. None If the holders of the foregoing provisions shall affect the right of a holder of Securities to convert its Securities Common Stock receive only cash in accordance with the provisions of this Article 4 prior to such Merger Event, then for all conversions that occur after the effective date of such Merger Event. Such supplemental indenture Event (a) the consideration due upon conversion of each $1,000 principal amount of Securities shall provide for adjustments of be solely cash in an amount equal to the Base Conversion Rate which shall be as nearly equivalent in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 5.11), multiplied by the price paid per share of Common Stock in such Merger Event and (b) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable to the adjustments of the Base Conversion Rate provided for in this Article 4after such determination is made. The provisions of this Section 4.09 5.13 shall similarly apply to successive Merger Events.

Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege. If (1) there shall occur (a) any reclassification of the Common Series B Preferred Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or a change as a result of a subdivision or combination of Common Stockcombination); (b) a statutory share exchange, consolidation, merger or combination involving the Company other than a merger in which the Company is the continuing corporation and which does not result in any reclassification of, or change (other than in par value, or from par value to no par value, or from no par value to par value, or a change as a result of a subdivision or combination of Common Stockcombination) in, outstanding shares of Common the Series B Preferred Stock; or (c) a sale or conveyance as an entirety or substantially as an entirety of the property and assets of the Company, directly or indirectly, to another Personperson; and (2) pursuant to such reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, holders of outstanding shares of Common Series B Preferred Stock would be entitled to receive stock (other than Common Stock)stock, other securities, other property, assets or Cash (or any combination thereof) cash for such shares of Common Stock (any such event a “Merger Event”)Series B Preferred Stock, then the Company, or such successor or surviving, purchasing or transferee Personperson, as the case may be, shall, as a condition precedent to such Merger Eventreclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, execute and deliver to the Trustee a supplemental indenture signed by the principal executive officer, principal financial officer or principal accounting officer of the Company and at least one other Officer of the Company and Lenders an amendment to this Agreement providing that, at and after the effective time of the Merger Eventsuch reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, each Loan then outstanding shall have the right to convert a Security will be changed into a right to convert it exchange the Exchangeable Portion of such Loan into the kind and amount of shares of stock, stock and other securities or other and property or assets (including Cash cash) receivable upon such reclassification, statutory share exchange, consolidation, merger, combination, sale or any combination thereof) that conveyance by a holder of a the number of shares of Common Series B Preferred Stock equal to deliverable upon exchange of the Conversion Rate Exchangeable Portion of such Loan immediately prior to such Merger Event reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, assuming that such Lender would not have exercised any rights of election that such Lender would have owned or been entitled to receive (the “Reference Property”) upon such transaction (assuming for such purposes that such conversion were settled entirely in Common Stock and without giving effect to any adjustment to the Conversion Rate with respect to a Make-Whole Fundamental Change) immediately prior to such Merger Event, except that such Holders will not be entitled to an increase in the Conversion Rate if such Holder does not convert its Securities “in connection with” the relevant Fundamental Change. If the Merger Event causes the Common Stock to be converted into the right to receive more than a single type of consideration (determined based in part upon any form of shareholder election), the Reference Property into which the Securities will be convertible will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election. None of the foregoing provisions shall affect the right of had as a holder of Securities Series B Preferred Stock to convert its Securities in accordance with the provisions select a particular type of this Article 4 prior to the effective date of such Merger Eventconsideration. Such supplemental indenture amendment shall provide for adjustments of the Base Conversion Exchange Rate which shall be as nearly equivalent as may be practicable to the adjustments of the Base Conversion Exchange Rate provided for in this Article 4Section 5.11. If, in the case of any such reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, the stock or other securities and property (including cash) receivable thereupon by a holder of Series B Preferred Stock include shares of stock or other securities and property of a Person other than the successor or surviving, purchasing or transferee person, as the case may be, in such reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, then such amendment shall also be executed by such other person and shall contain such additional provisions to protect the interests of the Lenders as the Board shall reasonably consider necessary by reason of the foregoing. The provisions of this Section 4.09 5.11 shall similarly apply to successive Merger Eventsreclassifications, statutory share exchanges, consolidations, mergers, combinations, sales and conveyances. The foregoing, however, shall not in any way affect the right a Lender may otherwise have pursuant to Section 5.5.1 receive rights and warrants in accordance therewith. In the event the Company shall execute an amendment pursuant to this Section 5.11, the Company shall promptly deliver to the Lenders an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of shares of stock or other securities or property (including cash) receivable by Lenders upon the conversion of the Exchangeable Portion of their Loans after any such reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, any adjustment to be made with respect thereto and that all conditions precedent have been satisfied.

Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege. If (1) there shall occur (a) any reclassification of the Company’s Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or a change as a result of a subdivision or combination of the Common Stock); (b) a statutory share exchange, consolidation, merger or combination involving the Company other than a merger in which the Company is the continuing corporation and which does not result in any reclassification of, or change (other than in par value, or from par value to no par value, or from no par value to par value, or a change as a result of a subdivision or combination of Common Stockcombination) in, outstanding shares of Common Stock; or (c) a sale or conveyance as an entirety or substantially as an entirety of the property and assets of the Company, directly or indirectly, to another Person; and (2) pursuant to such reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, holders of outstanding shares of Common Stock would be entitled to receive stock (other than Common Stock), other securities, other property, assets or Cash (or any combination thereof) for such shares of Common Stock (any such event a “Merger Event”), then the Company, or such successor or surviving, purchasing or transferee Person, as the case may be, shall, as a condition precedent to such Merger Event, execute and deliver to the Trustee a supplemental indenture signed by the principal executive officer, principal financial officer or principal accounting officer of the Company and at least one other Officer of the Company and providing that, at the effective time of the Merger Event, the right to convert a Security will be changed changed, without the consent of any Holders, into a right to convert it into the kind and amount of shares of stock, other securities or other property or assets (including Cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property”) upon such transaction (assuming for such purposes that such conversion were settled entirely in the Common Stock and without giving effect to any adjustment to the Conversion Rate with respect to a Make-Whole Fundamental Change) immediately prior to such Merger Event, except that such Holders will shall not be entitled to an increase in the Conversion Rate if such Holder does not convert its Securities “in connection with” the relevant Make-Whole Fundamental Change. If the Merger Event causes the Common Stock to be converted into the right to receive more than a single type of consideration (determined based in part upon any form of shareholder stockholder election), the Reference Property into which the Securities will be convertible will shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election. None of the foregoing provisions shall affect the right of a holder of Securities to convert its Securities in accordance with the provisions of this Article 4 prior to the effective date of such Merger Event. Such supplemental indenture shall provide for adjustments of the Base Conversion Rate which shall be as nearly equivalent as may be practicable to the adjustments of the Base Conversion Rate provided for in this Article 4. The provisions of this Section 4.09 4.10 shall similarly apply to successive Merger Events.

Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege. If (1) there shall occur (a) any reclassification of the Company’s Common Stock (other than a change only in par value, or from par value to no par value, value or from no par value to par value, or a change as a result of a subdivision or combination of the Company’s Common Stock); (b) a statutory share exchange, consolidation, merger or combination involving the Company other than a merger in which the Company is the continuing corporation and which does not result in any reclassification of, or change (other than in par value, or from par value to no par value, or from no par value to par value, or a change as a result of a subdivision or combination of Common Stock) in, outstanding shares of Common StockCompany; or (c) a sale or conveyance to another Person of the property and assets of the Company as an entirety or substantially as an entirety of the property and assets of the Company, directly or indirectly, to another Personentirety; and (2) pursuant to such reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, holders of outstanding shares of Common Stock would be entitled to receive stock (other than Common Stock), other securities, other property, or assets or Cash (including Cash) or any combination thereof) thereof for such shares of Common Stock (any such event a “Merger Event”), then the Company, or such successor or surviving, purchasing or transferee Person, as the case may be, shall, as a condition precedent to such Merger Event, execute and deliver to the Trustee a supplemental indenture signed by the principal executive officer, principal financial officer or principal accounting officer of the Company and at least one other Officer of the Company and providing that, at the effective time of the Merger Event, the right to convert a Security will be changed into a right to convert it into the kind and amount of shares of stock, other securities or other property or assets (including Cash Cash) or any combination thereof) thereof that a holder of a number of shares of Common Stock equal to the Applicable Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property”) upon such transaction (assuming for such purposes that such conversion were settled entirely in Common Stock and without giving effect to any adjustment to the Base Conversion Rate with respect to a Make-Whole Fundamental Change) immediately prior to such Merger Event, except that such Holders will not be entitled to an increase in the Base Conversion Rate if such Holder does not convert its Securities “in connection with the relevant Fundamental Change. For purposes of this Section 5.10, "in connection with” has the relevant Fundamental Changemeaning set forth in Section 5.03(a). If the Merger Event causes the Common Stock to be converted into the right to receive more than a single type of consideration (determined based in part upon any form of shareholder stockholder election), the Reference Property into which the Securities will be convertible will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election. None of the foregoing provisions shall affect the right of a holder Holder of Securities to convert its Securities in accordance with the provisions of this Article 4 5 prior to the effective date of such Merger Event. Such supplemental indenture shall provide for adjustments of the Base Conversion Rate which shall be as nearly equivalent as may be practicable to the adjustments of the Base Conversion Rate provided for in this Article 45. The provisions of this Section 4.09 5.10 shall similarly apply to successive Merger Events.

Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege. If (1) there shall occur (a) any reclassification of the Company's Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or a change as a result of a subdivision or combination of Common Stockcombination); (b) a statutory share exchange, consolidation, merger or combination involving the Company other than a merger in which the Company is the continuing corporation and which does not result in any reclassification of, or change (other than in par value, or from par value to no par value, or from no par value to par value, or a change as a result of a subdivision or combination of Common Stockcombination) in, outstanding shares of Common Stock; or (c) a sale or conveyance as an entirety or substantially as an entirety of the property and assets of the Company, directly or indirectly, to another Person; and (2) pursuant to such reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, holders of outstanding shares of Common Stock would be entitled to receive stock (other than Common Stock)stock, other securities, other property, assets or Cash (or any combination thereof) cash for such shares of Common Stock (any such event a “Merger Event”)Stock, then the Company, or such successor or surviving, purchasing or transferee Person, as the case may be, shall, as a condition precedent to such Merger Eventreclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, execute and deliver to the Trustee a supplemental indenture signed by reasonably satisfactory to the principal executive officer, principal financial officer or principal accounting officer of the Company and at least one other Officer of the Company and Trustee providing that, at and after the effective time of such reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, the Merger Event, Holder of each Security then outstanding shall have the right to convert a such Security will be changed into a right to convert it into the kind and amount of shares of stock, stock and other securities or other and property or assets (including Cash cash) receivable upon such reclassification, statutory share exchange, consolidation, merger, combination, sale or any combination thereof) that conveyance by a holder of a the number of shares of Common Stock equal to the Conversion Rate deliverable upon conversion of such Security immediately prior to such Merger Event reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, assuming that such Holder would not have exercised any rights of election that such Holder would have owned or been entitled to receive (the “Reference Property”) upon such transaction (assuming for such purposes that such conversion were settled entirely in Common Stock and without giving effect to any adjustment to the Conversion Rate with respect to had as a Make-Whole Fundamental Change) immediately prior to such Merger Event, except that such Holders will not be entitled to an increase in the Conversion Rate if such Holder does not convert its Securities “in connection with” the relevant Fundamental Change. If the Merger Event causes the holder of Common Stock to be converted into the right to receive more than select a single particular type of consideration (determined based in part upon any form of shareholder election), the Reference Property into which the Securities will be convertible will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election. None of the foregoing provisions shall affect the right of a holder of Securities to convert its Securities in accordance with the provisions of this Article 4 prior to the effective date of such Merger Eventconsideration. Such supplemental indenture shall provide for adjustments of the Base Conversion Rate which shall be as nearly equivalent as may be practicable to the adjustments of the Base Conversion Rate provided for in this Article 47. If, in the case of any such reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, the stock or other securities and property (including cash) receivable thereupon by a holder of Common Stock include shares of stock or other securities and property of a Person other than the successor or surviving, purchasing or transferee Person, as the case may be, in such reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Securities as the Board of Directors of the Company shall reasonably consider necessary by reason of the foregoing. The provisions of this Section 4.09 7.11 shall similarly apply to successive Merger Eventsreclassifications, statutory share exchanges, consolidations, mergers, combinations, sales and conveyances. The foregoing, however, shall not in any way affect the right a Holder of a Security may otherwise have pursuant to Section 7.6(c) to receive rights and warrants in accordance therewith. In the event the Company shall execute a supplemental indenture pursuant to this Section 7.11, the Company shall promptly file with the Trustee (x) an Officer's Certificate briefly stating the reasons therefor, the kind or amount of shares of stock or other securities or property (including cash) receivable by Holders of the Securities upon the conversion of their Securities after any such reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, any adjustment to be made with respect thereto and that all conditions precedent have been satisfied and (y) an Opinion of Counsel that all conditions precedent have been satisfied, and shall promptly mail notice thereof to all Holders.

Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege. If (1) there shall occur (a) any reclassification of the Company’s Common Stock (other than a change only in par value, or from par value to no par value, value or from no par value to par value, or a change as a result of a subdivision or combination of the Company’s Common Stock); (b) a statutory share exchange, consolidation, merger or combination involving the Company other than a merger in which the Company is the continuing corporation and which does not result in any reclassification of, or change (other than in par value, or from par value to no par value, or from no par value to par value, or a change as a result of a subdivision or combination of Common Stock) in, outstanding shares of Common StockCompany; or (c) a sale or conveyance to another Person of the property and assets of the Company as an entirety or substantially as an entirety of the property and assets of the Company, directly or indirectly, to another Personentirety; and (2) pursuant to such reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, holders of outstanding shares of Common Stock would be entitled to receive stock (other than Common Stock), other securities, other property, or assets or Cash (including Cash) or any combination thereof) thereof for such shares of Common Stock (any such event a “Merger Event”), then the Company, or such successor or surviving, purchasing or transferee Person, as the case may be, shall, as a condition precedent to such Merger Event, execute and deliver to the Trustee a supplemental indenture signed by the principal executive officer, principal financial officer or principal accounting officer of the Company and at least one other Officer of the Company and providing that, at the effective time of the Merger Event, the right to convert a Security will be changed into a right to convert it into the kind and amount of shares of stock, other securities or other property or assets (including Cash Cash) or any combination thereof) thereof that a holder of a number of shares of Common Stock equal to the Applicable Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property”) upon such transaction (assuming for such purposes that such conversion were settled entirely in Common Stock and without giving effect to any adjustment to the Base Conversion Rate with respect to a Make-Whole Fundamental Change) immediately prior to such Merger Event, except that such Holders will not be entitled to an increase in the Base Conversion Rate if such Holder does not convert its Securities in connection with the relevant Fundamental Change. For purposes of this Section 5.10, “in connection with” has the relevant Fundamental Changemeaning set forth in Section 5.03(a). If the Merger Event causes the Common Stock to be converted into the right to receive more than a single type of consideration (determined based in part upon any form of shareholder stockholder election), the Reference Property into which the Securities will be convertible will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election. None of the foregoing provisions shall affect the right of a holder Holder of Securities to convert its Securities in accordance with the provisions of this Article 4 5 prior to the effective date of such Merger Event. Such supplemental indenture shall provide for adjustments of the Base Conversion Rate which shall be as nearly equivalent as may be practicable to the adjustments of the Base Conversion Rate provided for in this Article 45. The provisions of this Section 4.09 5.10 shall similarly apply to successive Merger Events.

Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege. If (1) there shall occur (a) any reclassification of the Company’s Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or a change as a result of a subdivision or combination of Common Stockor other transaction for which an adjustment is provided in Section 4.06); (b) a statutory share exchange, consolidation, merger or combination involving the Company other than a merger in which the Company is the continuing corporation and which does not result in any reclassification of, or change (other than in par value, or from par value to no par value, or from no par value to par value, or a change as a result of a subdivision or combination of Common Stockcombination) in, outstanding shares of Common Stock; or (c) a sale or conveyance as an entirety or substantially as an entirety of the property and assets of the Company, directly or indirectly, to another Person; and (2) pursuant to such reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, holders of outstanding shares of Common Stock would be entitled to receive stock (other than Common Stock), other securities, other property, assets or Cash (or any combination thereof) for such shares of Common Stock (any such event a “Merger Event”)Stock, then the Company, or such successor or surviving, purchasing or transferee Person, as the case may be, shall, as a condition precedent to such Merger Eventreclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, execute and deliver to the Trustee a supplemental indenture signed by the principal executive officer, principal financial officer or principal accounting officer of the Company and at least one other Officer of the Company and providing that, at and after the effective time of such reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, the Merger Event, Holder of each Security then outstanding shall have the right to convert a such Security will be changed into a right to convert it into the kind and amount of shares of stock and other securities and property (including Cash) receivable upon such reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance by a holder of the number of shares of Common Stock deliverable upon conversion of such Security immediately prior to such reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, assuming that such Holder would not have exercised any rights of election that such Holder would have had as a holder of Common Stock to select a particular type of consideration; provided, however, that if the kind or amount of stock, other securities or other property or assets (including Cash) receivable upon such transaction is not the same for each share of Common Stock in respect of which such rights of election shall not have been exercised, then the kind and amount shall be deemed to be the kind and amount receivable per share of Common Stock by a plurality of the nonselecting shares of Common Stock; provided, further, that if, pursuant to Section 3.1, the Company elects that the Securities become convertible solely into Traded Common Stock in a merger or consolidation in which at least 90% of the consideration is Traded Common Stock (excluding Cash payments for fractional shares and Cash payments pursuant to dissenter’s appraisal rights), then each Holder of each Security then outstanding shall have the right to convert such Security into an amount of shares of Traded Common Stock with a value (based on the Closing Sale Price of the Traded Common Stock on the effective date of such merger or any combination thereofconsolidation) that is equal to the fair market value of the consideration receivable by a holder of a the number of shares of Common Stock equal to the Conversion Rate deliverable upon conversion of such Security immediately prior to such Merger Event would have owned merger or been entitled to receive (the “Reference Property”) upon such transaction (assuming for such purposes that such conversion were settled entirely in Common Stock and without giving effect to any adjustment to the Conversion Rate with respect to a Make-Whole Fundamental Change) immediately prior to such Merger Event, except that such Holders will not be entitled to an increase in the Conversion Rate if such Holder does not convert its Securities “in connection with” the relevant Fundamental Change. If the Merger Event causes the Common Stock to be converted into the right to receive more than a single type of consideration (determined based in part upon any form of shareholder election), the Reference Property into which the Securities will be convertible will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election. None of the foregoing provisions shall affect the right of a holder of Securities to convert its Securities in accordance with the provisions of this Article 4 prior to the effective date of such Merger Eventconsolidation. Such supplemental indenture shall provide for adjustments of the Base Conversion Rate which shall be as nearly equivalent as may be practicable to the adjustments of the Base Conversion Rate provided for in this Article 4IV. If, in the case of any such reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, the stock or other securities and property (including Cash) receivable thereupon by a holder of Common Stock include shares of stock or other securities and property of a Person other than the successor or surviving, purchasing or transferee Person, as the case may be, in such reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Securities as the Board of Directors of the Company shall reasonably consider necessary by reason of the foregoing. The provisions of this Section 4.09 4.11 shall similarly apply to successive Merger Eventsreclassifications, statutory share exchanges, consolidations, mergers, combinations, sales and conveyances. The foregoing, however, shall not in any way affect the right a Holder of a Security may otherwise have pursuant to Section 4.6(c) to receive rights and warrants in accordance therewith. In the event the Company shall execute a supplemental indenture pursuant to this Section 4.11, the Company shall promptly file with the Trustee (x) an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of shares of stock or other securities or property (including Cash) receivable by Holders of the Securities upon the conversion of their Securities after any such reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, any adjustment to be made with respect thereto and that all conditions precedent have been satisfied and (y) an Opinion of Counsel that the execution of the Supplemental Indenture is authorized or permitted under the terms of this Indenture and that all conditions precedent to the execution thereof have been satisfied, and shall promptly mail notice thereof to all Holders.

Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege. Subject to the further provisions of this Article 10, in the event the Borrower (i) reclassifies or changes its Borrower Common Shares (other than changes resulting from a subdivision or combination) or (ii) consolidates or combines with or merges into any Person or sells or conveys to another Person all or substantially all of its property and assets, and the holders of the Borrower Common Shares receive stock, other securities or other property or assets (including cash or any combination thereof) with respect to or in exchange for their Borrower Common Shares, the Lenders will thereby have the continuing right to convert their Loans into the consideration they would have received if they had converted their Loans immediately prior to such re-classification, change, consolidation, merger, sale or conveyance (the “Conversion Securities”). If (1) there any of the following shall occur occur, namely: (a) any reclassification or change of the shares of Borrower Common Stock Shares issuable upon conversion of Loans (other than a change in par value, or from par value to no par value, or from no par value to par value, or a change as a result of a subdivision or combination of Common Stockcombination, or any other change for which an adjustment is provided in Section 10.3); (b) a statutory share exchange, consolidation, any consolidation or merger or combination involving to which the Company Borrower is a party other than a merger in which the Company Borrower is the continuing corporation and which does not result in any reclassification of, or change (other than in par value, or from par value to no par value, or from no par value to par value, or a change as a result of a subdivision or combination of Common Stockcombination) in, outstanding shares of Borrower Common StockShares; or (c) a any sale or conveyance as an entirety or substantially as an entirety of the property and assets of the CompanyBorrower, directly or indirectly, to another Person; and (2) pursuant to such reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance, holders of outstanding shares of Common Stock would be entitled to receive stock (other than Common Stock), other securities, other property, assets or Cash (or any combination thereof) for such shares of Common Stock (any such event a “Merger Event”)person, then the CompanyBorrower, or such successor or survivingsuccessor, purchasing or transferee Personcorporation, as the case may be, shall, as a condition precedent to such Merger Eventreclassification, change, combination, consolidation, merger, sale or conveyance, execute and deliver to the Trustee a supplemental indenture signed by Agent an amendment to this Agreement providing that the principal executive officer, principal financial officer or principal accounting officer holder of the Company and at least one other Officer of the Company and providing that, at the effective time of the Merger Event, each Loan then outstanding shall have the right to convert a Security will be changed into a right to convert it such Loan into the kind and amount of shares of stock, stock and other securities or other and property or assets (including Cash cash) receivable upon such reclassification, change, combination, consolidation, merger, sale or any combination thereof) that conveyance by a holder of a the number of shares Borrower Common Shares deliverable upon conversion of Common Stock equal to the Conversion Rate such Loan immediately prior to such Merger Event would have owned reclassification, change, combination, consolidation, merger, sale or been entitled to receive (the “Reference Property”) upon such transaction (assuming for such purposes that such conversion were settled entirely in Common Stock and without giving effect to any adjustment to the Conversion Rate with respect to a Make-Whole Fundamental Change) immediately prior to such Merger Event, except that such Holders will not be entitled to an increase in the Conversion Rate if such Holder does not convert its Securities “in connection with” the relevant Fundamental Change. If the Merger Event causes the Common Stock to be converted into the right to receive more than a single type of consideration (determined based in part upon any form of shareholder election), the Reference Property into which the Securities will be convertible will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election. None of the foregoing provisions shall affect the right of a holder of Securities to convert its Securities in accordance with the provisions of this Article 4 prior to the effective date of such Merger Eventconveyance. Such supplemental indenture amendment shall provide for adjustments of the Base Conversion Rate Price which shall be as nearly equivalent as may be practicable to the adjustments of the Base Conversion Rate Price provided for in this Article 410. If, in the case of any such consolidation, merger, combination, sale or conveyance, the stock or other securities and property (including cash) receivable thereupon by a holder of Borrower Common Shares include shares of stock or other securities and property of a person other than the successor, purchasing or transferee corporation, as the case may be, in such consolidation, merger, combination, sale or conveyance, then such amendment shall also be executed by such other person and shall contain such additional provisions to protect the interests of the holders of the Loans as the Board shall reasonably consider necessary by reason of the foregoing. The provisions of this Section 4.09 10.5 shall similarly apply to successive Merger Eventsreclassifications, changes, combinations, consolidations, mergers, sales or conveyances. In the event the Borrower shall execute an amendment pursuant to this Section 10.5, the Borrower shall promptly file with the Agent (x) an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of shares of stock or other securities or property (including cash) receivable by holders of the Loans upon the conversion of their Loans after any such reclassification, change, combination, consolidation, merger, sale or conveyance, any adjustment to be made with respect thereto and that all conditions precedent have been complied with and (y) an Opinion of Counsel that all conditions precedent have been complied with, and shall promptly mail notice thereof to all holders of Loans.

Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege. If (1) there shall occur In the event of: (a) any reclassification of the Company’s Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or a change as a result of a subdivision or combination of Common Stockcombination, or any other change for which an adjustment is provided in Section 5.06); (b) a statutory share exchange, any consolidation, merger or combination involving the Company other than a merger in which the Company is the continuing corporation and which does not result in any reclassification of, or change (other than in par value, or from par value to no par value, or from no par value to par value, or a change as a result of a subdivision or combination of Common Stockcombination) in, outstanding shares of Common Stock; or (c) a sale or conveyance as an entirety of all or substantially as an entirety all of the property and assets of the Company, directly or indirectly, to another Person; and or (2d) pursuant to such reclassification, a statutory share exchange, consolidation, merger, combination, sale or conveyance, holders of outstanding shares of Common Stock would be entitled to receive stock (other than Common Stock), other securities, other property, assets or Cash (or any combination thereof) for such shares of Common Stock exchange (any such event a “Merger Event”), then in which holders of Common Stock would be entitled to receive shares of stock, or other securities, property, assets or cash (or combination thereof) for their shares of Common Stock, then, at the effective time of any such Merger Event, the Company, or such successor or survivingsuccessor, purchasing or transferee Person, as the case may be, shall, as a condition precedent to such Merger Event, shall execute and deliver to the Trustee a supplemental indenture signed by providing that the principal executive officer, principal financial officer or principal accounting officer Holder of the Company and at least one other Officer of the Company and providing that, at the effective time of the Merger Event, each Security then outstanding shall have the right to convert a such Security will be changed into a right to convert it into the kind and amount of shares of stock, other securities or other property securities, property, assets or assets cash (including Cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property”) upon such transaction (assuming for such purposes that such conversion were settled entirely in Common Stock and without giving effect to any adjustment to the Conversion Rate connection with respect to a Make-Whole Fundamental Change) immediately prior to such Merger Event. However, except that at and after the effective time of such Holders Merger event, (x) the amount otherwise payable in cash upon conversion of the Securities pursuant to Section 5.03 will not continue to be entitled payable in cash, (y) the number of shares of Common Stock otherwise deliverable upon the conversion of the Securities pursuant to an increase Section 5.03 will instead be deliverable in the Conversion Rate if amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Holder does not convert its Securities “Merger Event and (z) the Daily VWAP will be calculated based on the value of a unit of Reference Property that a holder of one share of Common Stock would have received in connection with” the relevant Fundamental Changesuch Merger Event. If the Merger Event causes the Common Stock to be converted into the right to receive more than a single type of consideration (determined based in part upon any form of shareholder stockholder election), the Reference Property into which the Securities will be convertible will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election. None of the foregoing provisions shall affect the right of a holder of Securities to convert its Securities in accordance with the provisions of this Article 4 prior to the effective date of such Merger Event. Such supplemental indenture shall provide for adjustments of the Base Conversion Rate which shall be as nearly equivalent as may be practicable to the adjustments of the Base Conversion Rate provided for in this Article 4. The provisions of this Section 4.09 5.12 shall similarly apply to successive Merger Events. If the Company shall execute a supplemental indenture pursuant to this Section 5.12, the Company shall promptly file with the Trustee (x) an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of shares of stock or other securities or property (including cash) receivable by Holders of the Securities upon the conversion of their Securities after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been satisfied and (y) an Opinion of Counsel that all conditions precedent have been satisfied, and shall promptly mail notice thereof to all Holders.