THE GREATEST CLOSING SALE PRICE OF THE COMMON STOCK DURING THE
11
PERIOD BEGINNING ON THE DATE IMMEDIATELY PRECEDING SUCH EVENT OF DEFAULT AND
ENDING ON THE DATE THE HOLDER DELIVERS THE EVENT OF DEFAULT REDEMPTION NOTICE.
REDEMPTIONS REQUIRED BY THIS SECTION 4(B) SHALL BE MADE IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 12.
TO THE EXTENT REDEMPTIONS REQUIRED BY THIS
SECTION 4(B) ARE DEEMED OR DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE
PREPAYMENTS OF THE NOTE BY THE COMPANY, SUCH REDEMPTIONS SHALL BE DEEMED TO BE
VOLUNTARY PREPAYMENTS.
THE PARTIES HERETO AGREE THAT IN THE EVENT OF THE
COMPANY'S REDEMPTION OF ANY PORTION OF THE NOTE UNDER THIS SECTION 4(B), THE
HOLDER'S DAMAGES WOULD BE UNCERTAIN AND DIFFICULT TO ESTIMATE BECAUSE OF THE
PARTIES' INABILITY TO PREDICT FUTURE INTEREST RATES AND THE UNCERTAINTY OF THE
AVAILABILITY OF A SUITABLE SUBSTITUTE INVESTMENT OPPORTUNITY FOR THE HOLDER.
ACCORDINGLY, ANY REDEMPTION PREMIUM DUE UNDER THIS SECTION 4(B) IS INTENDED BY
THE PARTIES TO BE, AND SHALL BE DEEMED, A REASONABLE ESTIMATE OF THE HOLDER'S
ACTUAL LOSS OF ITS INVESTMENT OPPORTUNITY AND NOT AS A PENALTY.
(5)
RIGHTS UPON FUNDAMENTAL TRANSACTION AND
CHANGE OF CONTROL.
(A)
ASSUMPTION.
THE COMPANY SHALL NOT ENTER
INTO OR BE PARTY TO A FUNDAMENTAL TRANSACTION UNLESS THE SUCCESSOR ENTITY
ASSUMES IN WRITING ALL OF THE OBLIGATIONS OF THE COMPANY UNDER THIS NOTE AND THE
OTHER TRANSACTION DOCUMENTS IN ACCORDANCE WITH THE PROVISIONS OF THIS
SECTION 5(A) PURSUANT TO WRITTEN AGREEMENTS, INCLUDING AGREEMENTS TO DELIVER TO
EACH HOLDER OF NOTES IN EXCHANGE FOR SUCH NOTES A SECURITY OF THE SUCCESSOR
ENTITY EVIDENCED BY A WRITTEN INSTRUMENT SUBSTANTIALLY SIMILAR IN FORM AND
SUBSTANCE TO THE NOTES, INCLUDING, WITHOUT LIMITATION, HAVING A PRINCIPAL AMOUNT
AND INTEREST RATE EQUAL TO THE PRINCIPAL AMOUNTS THEN OUTSTANDING AND THE
INTEREST RATES OF THE NOTES HELD BY SUCH HOLDER, HAVING SIMILAR CONVERSION
RIGHTS AND HAVING SIMILAR RANKING TO THE NOTES.
UPON THE OCCURRENCE OF ANY
FUNDAMENTAL TRANSACTION, THE SUCCESSOR ENTITY SHALL SUCCEED TO, AND BE
SUBSTITUTED FOR (SO THAT FROM AND AFTER THE DATE OF SUCH FUNDAMENTAL
TRANSACTION, THE PROVISIONS OF THIS NOTE REFERRING TO THE "COMPANY" SHALL REFER
INSTEAD TO THE SUCCESSOR ENTITY), AND MAY EXERCISE EVERY RIGHT AND POWER OF THE
COMPANY AND SHALL ASSUME ALL OF THE OBLIGATIONS OF THE COMPANY UNDER THIS NOTE
WITH THE SAME EFFECT AS IF SUCH SUCCESSOR ENTITY HAD BEEN NAMED AS THE COMPANY
HEREIN.
UPON CONSUMMATION OF THE FUNDAMENTAL TRANSACTION, THE SUCCESSOR ENTITY
SHALL DELIVER TO THE HOLDER CONFIRMATION THAT THERE SHALL BE ISSUED UPON
CONVERSION OF THIS NOTE AT ANY TIME AFTER THE CONSUMMATION OF THE FUNDAMENTAL
TRANSACTION, IN LIEU OF THE SHARES OF THE COMPANY'S COMMON STOCK (OR OTHER
SECURITIES, CASH, ASSETS OR OTHER PROPERTY) ISSUABLE UPON THE CONVERSION OF THE
NOTES PRIOR TO SUCH FUNDAMENTAL TRANSACTION, SUCH SHARES OF THE COMMON STOCK (OR
THEIR EQUIVALENT) OF THE SUCCESSOR ENTITY (INCLUDING ITS PARENT ENTITY), AS
ADJUSTED IN ACCORDANCE WITH THE PROVISIONS OF THIS NOTE.
THE PROVISIONS OF THIS
SECTION SHALL APPLY