AND IN ACCORDANCE WITH SECTION 2.11, SHALL SURRENDER ANY SECURITY PURCHASED BY
THE COMPANY PURSUANT TO THIS ARTICLE 3 TO THE TRUSTEE FOR CANCELLATION, AND
(B) AFTER SUCH DATE AND IN ACCORDANCE WITH SECTION 2.11, MAY SURRENDER SUCH
SECURITY TO THE TRUSTEE FOR CANCELLATION.
ANY SECURITIES SURRENDERED TO THE
TRUSTEE FOR CANCELLATION MAY NOT BE REISSUED OR RESOLD BY THE COMPANY AND WILL
BE CANCELED PROMPTLY IN ACCORDANCE WITH SECTION 2.11.
THE COMPANY MAY
REPURCHASE SECURITIES IN THE OPEN MARKET, BY TENDER AT ANY PRICE OR BY
NEGOTIATED TRANSACTIONS AND SUCH SECURITIES MAY BE REISSUED OR RESOLD, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, OR MAY BE SURRENDERED TO THE TRUSTEE FOR
CANCELLATION.
24
ARTICLE 4
CONVERSION
SECTION 4.01
CONVERSION PRIVILEGE AND CONVERSION RATE.
(A)
SUBJECT TO THE OBLIGATION AND THE RIGHT OF
THE COMPANY TO PAY SOME OR ALL OF THE CONVERSION CONSIDERATION IN CASH IN
ACCORDANCE WITH SECTION 4.13, AND UPON COMPLIANCE WITH THE PROVISIONS OF THIS
ARTICLE 4, AT THE OPTION OF THE HOLDER THEREOF, ANY SECURITY OR PORTION THEREOF
THAT IS AN INTEGRAL MULTIPLE OF $1,000 PRINCIPAL AMOUNT MAY BE CONVERTED INTO
FULLY PAID AND NONASSESSABLE SHARES (CALCULATED AS TO EACH CONVERSION TO THE
NEAREST 1/100TH OF A SHARE) OF COMMON STOCK PRIOR TO THE CLOSE OF BUSINESS ON
THE BUSINESS DAY IMMEDIATELY PRECEDING THE FINAL MATURITY DATE OR SUCH EARLIER
DATE SET FORTH IN THIS ARTICLE 4, UNLESS PREVIOUSLY PURCHASED BY THE COMPANY AT
THE HOLDER'S OPTION UPON THE OCCURRENCE OF A FUNDAMENTAL CHANGE, AT THE
CONVERSION RATE IN EFFECT AT SUCH TIME, DETERMINED AS HEREINAFTER PROVIDED AND
SUBJECT TO THE ADJUSTMENTS DESCRIBED BELOW, ONLY UNDER THE FOLLOWING
CIRCUMSTANCES:
(1)
DURING ANY CALENDAR QUARTER BEGINNING AFTER
JUNE 30, 2006, AND ONLY DURING SUCH CALENDAR QUARTER, IF, AS OF THE LAST DAY OF
THE IMMEDIATELY PRECEDING CALENDAR QUARTER, THE CLOSING PRICE PER SHARE OF THE
COMMON STOCK FOR AT LEAST 20 TRADING DAYS IN THE PERIOD OF THE 30 CONSECUTIVE
TRADING DAYS ENDING ON THE LAST TRADING DAY OF SUCH PRECEDING CALENDAR QUARTER
WAS MORE THAN 120% OF THE CONVERSION PRICE (THE "CONVERSION TRIGGER PRICE");
(2)
IF THE COMPANY DISTRIBUTES TO ALL HOLDERS
OF COMMON STOCK RIGHTS (INCLUDING RIGHTS UNDER A STOCKHOLDER RIGHTS AGREEMENT)
OR WARRANTS ENTITLING THEM TO PURCHASE, FOR A PERIOD EXPIRING WITHIN 45 DAYS OF
THE DATE OF ISSUANCE, COMMON STOCK AT LESS THAN THE CURRENT MARKET PRICE OF THE
COMMON STOCK ON THE DAY OF ISSUANCE;
(3)
IF THE COMPANY DISTRIBUTES TO ALL HOLDERS
OF COMMON STOCK, ASSETS, DEBT SECURITIES OR RIGHTS TO PURCHASE THE COMPANY'S
SECURITIES, WHICH DISTRIBUTION HAS A PER SHARE VALUE EXCEEDING 7.5% OF THE
CLOSING PRICE OF THE COMMON STOCK ON THE BUSINESS DAY PRECEDING THE DECLARATION
DATE FOR SUCH DISTRIBUTION;
(4)
IF A FUNDAMENTAL CHANGE OCCURS;
(5)
AT ANY TIME DURING THE PERIOD BEGINNING ON
FEBRUARY 1, 2011 AND ENDING AT THE CLOSE OF BUSINESS ON THE BUSINESS DAY
IMMEDIATELY PRECEDING THE FINAL MATURITY DATE; OR
(6)
DURING ANY FIVE BUSINESS DAY PERIOD AFTER
ANY FIVE