Common use of The Transactions Clause in Contracts

The Transactions. (a) Subject to the terms and conditions herein contained, the Company proposes to issue and sell to the Initial Purchaser $60,000,000 aggregate principal amount of its 7.75% Convertible Senior Notes due 2012 (the “Notes”) and warrants (the “Warrants”) to purchase an aggregate of 7,800,000 shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”). The initial conversion rate of the Notes is 520.833 shares of Common Stock per each $1,000 principal amount of Notes, subject to adjustment as described in the Indenture (as defined below). The Notes shall be convertible into shares of Common Stock and the Warrants shall be exercisable into shares of Common Stock (collectively, the “Shares”). The Notes and Warrants will have the terms and provisions which are described in the Offering Memorandum (as defined below) under the heading “Description of Securities” and such other terms as are customary. The Notes will be issued pursuant to the provisions of the Indenture (the “Indenture”), to be dated on or about February 20, 2007, between the Company and U.S. Bank National Association, as trustee (the “Trustee”) and shall be substantially in the form of the Form of Convertible Note attached as Exhibit A thereto (the “Form of Note”), and the Warrants will be issued pursuant to the terms of the form of warrant accompanying this Agreement (the “Form of Warrant”). The Notes, Warrants and the Shares are hereinafter referred to collectively as the “Securities.” The offer and sale of the Securities is hereinafter referred to as the “Offering.” Holders of the Securities will have the registration rights set forth in a registration rights agreement (the “Registration Rights Agreement”), to be dated as of February 20, 2007, between the Company and the Initial Purchaser, relating to the resale of the Notes and Shares under the Securities Act of 1933, as amended (the “Securities Act”).

The Transactions. (a) Subject to the terms and conditions herein contained, the Company proposes to issue and sell to the Initial Purchaser $60,000,000 80,214,000 aggregate principal amount of its 7.755.250% Convertible Senior Notes due 2012 2026 (the “Notes”) and warrants to be issued pursuant to the terms of an indenture (the “WarrantsIndenture”) to purchase an aggregate be dated as of 7,800,000 the Closing Date among the Company, the Guarantors (as defined below) and Computershare Trust Company, N.A., as Trustee (the “Trustee”). The Notes shall initially be convertible into 65.6276 shares of the Company’s common stock, par value $0.01 0.001 per share (the “Common Stock”). The initial conversion rate , of the Notes is 520.833 shares of Common Stock Company, per each $1,000 principal amount of Notes, subject to adjustment as described in the Indenture (as Offering Memorandum, defined below). The Notes shall be convertible into shares of Common Stock and into which the Warrants shall Notes may be exercisable into shares of Common Stock (collectively, converted are referred to herein as the “Underlying Shares”). .” The Notes and Warrants will have the material terms and provisions which of the Notes are described in the Disclosure Package as of the Applicable Time and the Offering Memorandum dated the date hereof (each as defined below) under the heading “Description of Securities” and such other terms as are customarythe Notes”. The due and punctual payment of the principal of, and interest on, the Notes will be issued pursuant to the provisions unconditionally and irrevocably guaranteed on a senior, unsecured basis, jointly and severally by any U.S. domestic subsidiary of the Indenture Company formed or acquired after the Closing Date (the “Indenture”), to be dated on or about February 20, 2007, between the Company and U.S. Bank National Association, as trustee (the “Trustee”defined in Section 3 hereof) and shall be substantially that executes a guarantee in the form of the Form of Convertible Note attached as Exhibit A thereto (the “Form of Note”), and the Warrants will be issued pursuant to accordance with the terms of the form of warrant accompanying this Agreement Indenture, and their respective successors and assigns (collectively, the “Guarantors”), pursuant to their guarantees (the “Form of WarrantGuarantees”). The Notes, Warrants the Guarantees and the Underlying Shares hereinafter are hereinafter referred to collectively as the “Securities.” The offer Notes and sale the Guarantees will be offered and sold to the Initial Purchaser (the “Offering”) pursuant to an exemption from the registration requirements of the Securities is hereinafter referred to as the “Offering.” Holders of the Securities will have the registration rights set forth in a registration rights agreement (the “Registration Rights Agreement”), to be dated as of February 20, 2007, between the Company and the Initial Purchaser, relating to the resale of the Notes and Shares under the Securities Act of 1933, as amended (together with the rules and regulations of the Securities and Exchange Commission (the “Commission”) promulgated thereunder, the “Securities Act”).

The Transactions. (a) Subject to the terms and conditions herein contained, the Company proposes to issue and sell to the Initial Purchaser Purchasers $60,000,000 70,000,000 aggregate principal amount of its 7.755.00% Convertible Senior Notes due 2012 2024 (the “Firm Notes”) to be issued pursuant to the terms of an indenture (the “Indenture”) to be dated as of the Closing Date among the Company, the Guarantors (as defined below) and Xxxxx Fargo Bank, National Association, as Trustee (the “Trustee”). In addition, the Company has granted to the Initial Purchasers an option to purchase up to an additional $10,500,000 aggregate principal amount of its 5.00% Convertible Senior Notes due 2024 (the “Optional Notes” and, together with the Firm Notes, the “Notes”) and warrants (the “Warrants”) to purchase an aggregate of 7,800,000 ). The Notes shall initially be convertible into 56.9801 shares of the Company’s common stock, par value $0.01 0.001 per share (the “Common Stock”). The initial conversion rate , of the Notes is 520.833 shares of Common Stock Company, per each $1,000 principal amount of Notes, subject to adjustment as described in the Indenture (as Offering Memorandum, defined below). The Notes shall be convertible into shares of Common Stock and into which the Warrants shall Notes may be exercisable into shares of Common Stock (collectively, converted are referred to herein as the “Underlying Shares”). .” The Notes and Warrants will have the material terms and provisions which of the Notes are described in the Disclosure Package as of the Applicable Time and the Offering Memorandum dated the date hereof (each as defined below) under the heading “Description of Securities” and such other terms as are customarythe Notes”. The due and punctual payment of the principal of, and interest on, the Notes will be issued pursuant to the provisions unconditionally and irrevocably guaranteed on a senior, unsecured basis, jointly and severally by any U.S. domestic subsidiary of the Indenture Company formed or acquired after the Closing Date (the “Indenture”), to be dated on or about February 20, 2007, between the Company and U.S. Bank National Association, as trustee (the “Trustee”defined in Section 3 hereof) and shall be substantially that executes a guarantee in the form of the Form of Convertible Note attached as Exhibit A thereto (the “Form of Note”), and the Warrants will be issued pursuant to accordance with the terms of the form of warrant accompanying this Agreement Indenture, and their respective successors and assigns (collectively, the “Guarantors”), pursuant to their guarantees (the “Form of WarrantGuarantees”). The Notes, Warrants the Guarantees and the Underlying Shares hereinafter are hereinafter referred to collectively as the “Securities.” The offer Notes and sale the Guarantees will be offered and sold to the Initial Purchasers (the “Offering”) pursuant to an exemption from the registration requirements of the Securities is hereinafter referred to as the “Offering.” Holders of the Securities will have the registration rights set forth in a registration rights agreement (the “Registration Rights Agreement”), to be dated as of February 20, 2007, between the Company and the Initial Purchaser, relating to the resale of the Notes and Shares under the Securities Act of 1933, as amended (together with the rules and regulations of the Securities and Exchange Commission (the “Commission”) promulgated thereunder, the “Securities Act”).

The Transactions. (a) Subject to the terms and conditions herein contained, the Company proposes to issue and sell to the Initial Purchaser Purchasers $60,000,000 145,000,000 aggregate principal amount of its 7.758% Convertible Senior Notes due 2012 2011 (the “Firm Notes”) and warrants ). The Company also agrees to issue to the Initial Purchasers an option to purchase up to an additional $21,750,000 aggregate principal amount of its 8% Convertible Senior Notes due 2011 (the “Warrants”) to purchase an aggregate of 7,800,000 shares of Option Notes” and, together with the Company’s common stockFirm Notes, par value $0.01 per share (the “Common StockNotes”). The initial conversion rate of the Notes is 520.833 136.426 shares of common stock, $0.0001 par value per share, of the Company (the “Common Stock Stock” or “Conversion Shares”) per each $1,000 principal amount of Notes, subject to adjustment as described in the Indenture (as defined below)certain circumstances. The Notes shall be convertible into shares of Common Stock and the Warrants shall be exercisable into shares of Common Stock will (collectively, the “Shares”). The Notes and Warrants will i) have the terms and provisions which are described in the Offering Memorandum (as defined below) under the heading “Description of SecuritiesNotes” and such other terms as are customary. The Notes will , and (ii) be issued pursuant to the provisions of the Indenture (the “Indenture”), to be dated on or about February 20as of December 19, 20072006, between the Company and U.S. Bank National Association, as trustee (the “Trustee”) on a private placement basis pursuant to an exemption from registration under Section 4(2) and shall be substantially in Regulation D under the form Securities Act of the Form of Convertible Note attached 1933, as Exhibit A thereto amended (the “Form of Note”), and the Warrants will be issued pursuant to the terms of the form of warrant accompanying this Agreement (the “Form of WarrantSecurities Act”). The Notes, Warrants Notes and the Conversion Shares are hereinafter referred to collectively as the “Securities.” The offer and sale of the Securities is hereinafter referred to as the “Offering.” Holders of the Securities will have the registration rights set forth in a registration rights agreement (the “Registration Rights Agreement”), to be dated as of February 20December 19, 20072006, between among the Company and the Initial PurchaserPurchasers, relating to the resale of the Notes and Shares Securities under the Securities Act of 1933, as amended (the “Securities Act”).

The Transactions. (a) Subject to the terms and conditions herein contained, the Company proposes to issue and sell to the Initial Purchaser $60,000,000 100,000,000 aggregate principal amount of its 7.754.0% Convertible Senior Subordinated Notes due 2012 2011 (the “Firm Notes”). In addition, the Company has granted to the Initial Purchaser an option to purchase up to an additional $20,000,000 aggregate principal amount of its 4.0% Convertible Subordinated Notes due 2011 (the “Optional Notes” and, together with the Firm Notes, the “Notes”) and warrants (the “Warrants”) to purchase an aggregate of 7,800,000 shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”). The initial conversion rate of the Notes is 520.833 shares of Common Stock per each $1,000 principal amount of Notes, subject to adjustment as described in the Indenture (as defined below). The Notes shall be convertible into shares of common stock, par value $0.01 per share, of the Company (the “Common Stock”) together with the rights (the “Rights”) evidenced by such Common Stock to the extent provided in the Stockholder Rights Agreement, dated March 27, 2002, between the Company and American Stock Transfer & Trust Company (the “Stockholder Rights Agreement”), subject to and in accordance with the terms of the Notes. The Common Stock and accompanying Rights into which the Warrants shall Notes may be exercisable into shares of Common Stock (collectively, converted are referred to herein as the “Conversion Shares”). .” The Notes and Warrants will (i) have the terms and provisions which are described in the Offering Memorandum (as defined below) under the heading “Description of SecuritiesNotes” and such other terms as are customary. The Notes will reasonable and customary and (ii) be issued pursuant to the provisions of the Indenture (the “Indenture”), to be dated on or about February 2017, 20072004, between the Company and U.S. The Bank National Associationof New York, a New York banking corporation, as trustee (the “Trustee”) and shall be substantially in the form of the Form of Convertible Note attached as Exhibit A thereto (the “Form of Note”), and the Warrants will be issued pursuant to the terms of the form of warrant accompanying this Agreement (the “Form of Warrant”). The Notes, Warrants Notes and the Conversion Shares hereinafter are hereinafter referred to collectively as the “Securities.” The offer and sale of the Securities is hereinafter referred Notes to as the Initial Purchaser (the “Offering.” Holders ”) will be made without registration of the Securities will have the registration rights set forth in a registration rights agreement (the “Registration Rights Agreement”), to be dated as of February 20, 2007, between the Company and the Initial Purchaser, relating to the resale of the Notes and Shares under the Securities Act of 1933, as amended (together with the rules and regulations of the Securities and Exchange Commission (the “Commission”) promulgated thereunder, the “Securities Act”), in reliance upon the exemption therefrom provided by Section 4(2) of the Securities Act. In connection with the sale of the Notes, the Company has prepared a preliminary offering memorandum dated February 9, 2004 (the “Preliminary Offering Memorandum”) and will prepare promptly an offering memorandum dated the date hereof, in form and substance reasonably satisfactory to you (the “Offering Memorandum”), setting forth information regarding the Company, the Securities and the terms of the Offering and the transactions contemplated by the Offering Documents (as defined below). The Preliminary Offering Memorandum and the Offering Memorandum will incorporate by reference the Company’s (i) Annual Report on Form 10-K for the year ended December 31, 2002, (ii) Quarterly Reports on Form 10-Q for the quarters ended March 31, 2003, June 30, 2003 and September 30, 2003, (iii) Proxy Statement for the annual meeting of stockholders of the Company held on May 28, 2003, (iv) Current Reports on Form 8-K filed with the Commission on January 8, 2003, January 10, 2003, January 30, 2003, March 4, 2003, June 20, 2003, August 20, 2003, August 22, 2003, September 5, 2003, September 19, 2003 and November 7, 2003, (v) the description of Common Stock contained on page 2 of the Company’s Registration Statement on Form 8-A and (vi) the description of the Preferred Stock Purchase Rights under the Stockholder Rights Agreement contained on pages 2-4 of the Company’s Registration Statement on Form 8-A (other than information in the documents that is deemed not to be filed with the Commission) (all such documents listed in clauses (i) through (vi) referred to herein as the “Incorporated Documents”). Any references herein to the Preliminary Offering Memorandum or the Offering Memorandum shall be deemed to include, in each case, all amendments and supplements thereto and the Incorporated Documents and any amendments thereto made prior to the completion of the Offering. The Company hereby confirms that it has authorized the use of the Preliminary Offering Memorandum and the Offering Memorandum in connection with the offering and resale of the Notes by the Initial Purchaser. The Company understands that the Initial Purchaser proposes to make an offering of the Notes only on the terms and in the manner set forth in the Offering Memorandum and Sections 3, 4 and 10 hereof as soon as the Initial Purchaser deems advisable after this Agreement has been executed and delivered, solely to persons whom the Initial Purchaser reasonably believes to be qualified institutional buyers (“QIBs”) as defined in Rule 144A under the Securities Act, as such rule may be amended from time to time (“Rule 144A”), in transactions under Rule 144A. The Initial Purchaser and their direct and indirect transferees of the Notes will be entitled to the benefits of the Registration Rights Agreement to be dated as of February 17, 2004, among the parties hereto (the “Registration Rights Agreement”) pursuant to which the Company will agree, among other things, to file (i) a registration statement (the “Registration Statement”) on the appropriate form with the Commission registering the resale of the Securities under the Securities Act and (ii) to use its best efforts to cause any such Registration Statement to be declared effective. This Agreement, the Securities, the Registration Rights Agreement and the Indenture are herein referred to as the “Offering Documents.”

The Transactions. (a) Subject to the terms and conditions herein contained, the Company proposes and the Guarantors (as defined below), severally but not jointly, propose to issue and sell to the Initial Purchaser $60,000,000 32,000,000 aggregate principal amount of its 7.75the Company’s 6.75% Convertible Senior Notes due 2012 2017 (the “Notes”) and warrants (the “Warrants”) to purchase an aggregate of 7,800,000 shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”). The initial conversion rate of the Notes is 520.833 shares of Common Stock per each $1,000 principal amount of Notes, subject to adjustment as described in the Indenture Guarantees (as defined below). The Notes shall be convertible into 256.4103 shares of common stock, par value $0.01, of the Company (the “Common Stock”), per $1,000 principal amount of Notes, as described in the Offering Memorandum, defined below. The Common Stock and into which the Warrants shall Notes may be exercisable into shares of Common Stock (collectively, converted are referred to herein as the “Conversion Shares”). .” The Notes and Warrants will have the material terms and provisions which of the Notes are described in the Disclosure Package as of the Applicable Time and the Offering Memorandum dated the date hereof (each as defined below) under the heading “Description of SecuritiesNotes.” and such other terms as are customary. The Notes will be issued pursuant to the provisions of the Indenture (the “Indenture”), to be dated on or about February 20June 19, 20072012, between the Company Company, the Guarantors and U.S. Bank Xxxxx Fargo Bank, National Association, as trustee (the “Trustee”). The payment of principal of, premium, if any, and interest on the Notes will be fully and unconditionally guaranteed on a senior unsecured basis, jointly and severally by (i) the entities listed on the signature pages hereof as “Guarantors” and shall be substantially in the form (ii) any subsidiary of the Form of Convertible Note attached Company formed or acquired after the Closing Date (as Exhibit A thereto (the “Form of Note”), and the Warrants will be issued pursuant to defined in Section 3 hereof) that executes an additional guarantee in accordance with the terms of the form of warrant accompanying this Agreement Indenture, and their respective successors and assigns (collectively, the “Guarantors”), pursuant to their guarantees (the “Form of WarrantGuarantees”). The Notes, Warrants the Conversion Shares and the Shares Guarantees hereinafter are hereinafter referred to collectively as the “Securities.” The offer and sale of the Securities is hereinafter referred to as the “Offering.” Holders of the Securities will have the registration rights set forth in a registration rights agreement (the “Registration Rights Agreement”), to be dated as of February 20, 2007, between the Company and the Initial Purchaser, relating to the resale of the Notes and Shares the Guarantees to the Initial Purchaser (the “Offering”) will be made without registration of the Securities under the Securities Act of 1933, as amended (together with the rules and regulations of the Securities and Exchange Commission (the “Commission”) promulgated thereunder, the “Securities Act”), in reliance upon the exemption therefrom provided by Section 4(2) of the Securities Act. In connection with the sale of the Notes and the Guarantees, the Company and the Guarantors: (i) have prepared a preliminary offering memorandum dated June 5, 2012 (the “Preliminary Offering Memorandum”) and will prepare promptly an offering memorandum dated the date hereof, in form and substance reasonably satisfactory to you (the “Offering Memorandum”), setting forth information regarding the Company, the Guarantors, the Securities and the terms of the Offering and the transactions contemplated by the Offering Documents (as defined below); and (ii) will prepare the term sheet substantially in the form attached in Schedule I hereto (the “Final Term Sheet”) as approved by the Initial Purchaser, such Final Term Sheet, together with the Preliminary Offering Memorandum and any of the other documents used by the Company in connection with the offering of the Notes and the Guarantees on or before 8:00 a.m. New York City time on the date of this Agreement (the “Applicable Time”) and identified on Schedule II hereto (the “Disclosure Package”). The Preliminary Offering Memorandum, the Disclosure Package and the Offering Memorandum will incorporate by reference the Company’s (i) Annual Report on Form 10-K for the year ended September 30, 2011, (ii) Quarterly Reports on Form 10-Q for the quarters ended December 30, 2011 and Xxxxx 00, 0000, (xxx) Proxy Statement for the annual meeting of stockholders of the Company held on January 31, 2012, (iv) Current Reports on Form 8-K filed with the Commission on October 17, 2011, October 24, 2011, January 11, 2012, February 6, 2012, February 7, 2012, April 4, 2012, April 16, 2012, May 14, 2012, and June 4, 2012 and on Form 8-K/A filed with the Commission on April 18, 2012, and (v) the description of Common Stock contained in the Company’s Registration Statements on Form 8-A, as amended (File Nos. 000-50499 and 001-31650) (other than information in the documents that is deemed not to be filed with the Commission) (all such documents listed in clauses (i) through (v) referred to herein and all documents deemed to be incorporated by reference in the Preliminary Offering Memorandum, the Disclosure Package or the Offering Memorandum that are filed subsequent to the date of such document and prior to the completion of the distribution of the Securities are referred to herein as the “Incorporated Documents”). Any references herein to the Preliminary Offering Memorandum, the Disclosure Package or the Offering Memorandum shall be deemed to include, in each case, all amendments and supplements thereto and the Incorporated Documents and any amendments thereto made prior to the completion of the Offering. The Company and each of the Guarantors hereby confirm that they have authorized the use of the Preliminary Offering Memorandum, the Disclosure Package and the Offering Memorandum in connection with the offering and resale of the Notes and the Guarantees by the Initial Purchaser. The Company and the Guarantors understand that the Initial Purchaser proposes to make an offering of the Notes and the Guarantees only on the terms and in the manner set forth in the Offering Memorandum and Sections 3, 4 and 10 hereof as soon as the Initial Purchaser deems advisable after this Agreement has been executed and delivered, solely to persons whom the Initial Purchaser reasonably believes to be qualified institutional buyers (“QIBs”) as defined in Rule 144A under the Securities Act, as such rule may be amended from time to time (“Rule 144A”), in transactions under Rule 144A. This Agreement, the Securities and the Indenture are herein referred to as the “Offering Documents.”

The Transactions. (a) Subject to the terms and conditions herein contained, the Company proposes to issue and sell to the Initial Purchaser 175,000 units (“Firm Units”) of the Company, each Unit consisting of $60,000,000 aggregate 1,000 principal amount of its 7.758.75% Senior Convertible Senior Notes due 2012 (the “Notes”) and warrants (the “Warrants”) ), a warrant to purchase an aggregate of 7,800,000 shares of the Company’s common stock, par value $0.01 0.001 per share (the “Common Stock”). The , at an initial conversion rate exercise price of $4.00 per share (“$4 Warrants”), and a warrant to purchase shares of the Notes is 520.833 shares of Common Stock at an initial exercise price of $5.00 per each share (“$1,000 principal amount of Notes5 Warrants” and, subject together with the $4 Warrants, the “Warrants”). In addition, the Company has granted to adjustment as described in the Indenture Initial Purchaser an option to purchase up to 26,250 additional Units (as defined belowthe “Optional Units” and, together with the Firm Units, the “Units”). The Company’s obligations under the Notes shall will be convertible into shares guaranteed by certain of Common Stock and the Warrants shall be exercisable into shares of Common Stock its subsidiaries (collectively, the “SharesGuarantors”). The Notes and Warrants will have (including the terms and provisions which are described in guarantees of the Offering Memorandum Guarantors endorsed thereon (as defined belowthe “Guarantees”)) under the heading “Description of Securities” and such other terms as are customary. The Notes will be issued pursuant to the provisions of the Indenture (the “Indenture”), to be dated on or about February 2016, 2007, between the Company and U.S. Bank National Associationof New York Corporate Trust Company, N.A., as trustee (the “Trustee”) and shall be substantially in the form of the Form of Convertible Note attached as Exhibit A thereto (the “Form of Note”), and the Warrants will be issued pursuant to the terms provisions of the form of warrant accompanying this Warrant Agent Agreement (the “Form of Warrant”). The Notes, Warrants and the Shares are hereinafter referred to collectively as the “Securities.” The offer and sale of the Securities is hereinafter referred to as the “Offering.” Holders of the Securities will have the registration rights set forth in a registration rights agreement (the “Registration Rights Warrant Agreement”), to be dated as of February 2016, 2007, between the Company and Bank of New York Corporate Trust Company, N.A., as warrant agent (the Initial Purchaser“Warrant Agent”). The Units, relating to the resale Notes, the Warrants, the shares of Common Stock issuable upon conversion of the Notes and Shares under the Securities Act of 1933, as amended (the “Securities ActNote Shares”)) and the shares of Common Stock issuable upon exercise of the Warrants (the “Warrant Shares” and, together with the Note Shares, the “Underlying Shares”) are collectively referred to as the “Securities.”