Common use of Conversion Cap Clause in Contracts

Conversion Cap. Notwithstanding anything contained herein to the contrary, the Corporation shall not prior to the Mandatory Conversion Date effect any conversion of the Mandatory Convertible Preferred Stock for shares of Common Stock, and a Holder shall not have the right to voluntarily convert any portion of the Mandatory Convertible Preferred Stock for shares of Common Stock, to the extent that after giving effect to the issuance of shares of Common Stock upon such conversion, any of such Holder, another person having beneficial ownership of such shares of Common Stock or any group of which such Holder or any such other person is a member (any such other person or group, an “Additional Beneficial Owner”), would beneficially own in excess of 9.99% of the outstanding shares of the Common Stock (such limitation, the “Conversion Cap”). Upon the request of a Holder, the Corporation shall promptly, and in any event within one trading day of such request, confirm to such Holder the number shares of Common Stock then outstanding. Prior to any conversion of the Mandatory Convertible Preferred Stock, each Holder shall either (x) certify to the Corporation that neither such Holder nor any Additional Beneficial Owner would beneficially own in excess of 9.99% of the outstanding shares of the Common Stock upon giving effect to such conversion or (y) identify to the Corporation each other person who would be, or would be a member of a group that would be, an Additional Beneficial Owner of any of such shares of the Common Stock as would be issued upon giving effect to such conversion and provide to the Corporation such other information as it shall reasonably request for the purpose of enforcing the Conversion Cap. The Conversion Cap may be terminated by a Holder with respect to such Holder upon 61 days’ advance written notice to the Corporation. For purposes of this Section 16, the number of shares of the Common Stock beneficially owned by any person shall be calculated in accordance with Rule 16a-1(a)(1) promulgated under the Exchange Act, or any successor rule, in each case giving effect to the Conversion Cap. In addition, “group” as used in this Section 16 has the meaning set forth in Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. Any shares of Common Stock due to Holder that are not delivered due to the Conversion Cap shall be delivered within three (3) Business Days of Holder providing notice to the Corporation that such delivery will comply with the Conversion Cap.

Conversion Cap. Notwithstanding anything contained herein to the contrarycontrary in this Indenture, (a) a Person or any Affiliate thereof holding the Corporation Notes shall not prior be entitled to convert any Notes (and the Issuer shall not so convert any Notes), (b) the Issuer shall not be entitled to settle any cash payments owing to any Person of Notes in shares of its Common Stock and (iii) shares of any acquiror (or successor) shall not be issued upon conversion pursuant to the Mandatory Conversion Date effect any conversion adjustment mechanisms contained in Section 5.05 in connection with a transaction governed by Section 5.05 or upon a Fundamental Change of Control to the extent, and only to the extent, such conversion, share settlement or issuance would cause such Person, together with its Affiliates, to become a beneficial owner (as determined pursuant to Section 13 of the Mandatory Convertible Preferred Stock for shares Exchange Act and Rules 13d-3 and 13d-5 thereunder) of Common Stock, and a Holder shall not have the right to voluntarily convert any portion more than 9.9% of the Mandatory Convertible Preferred Stock for shares of Common Stock, to the extent that after giving effect to the issuance of issued and outstanding shares of Common Stock upon (or such conversion, any of such Holder, another person having beneficial ownership of such equivalent shares of Common Stock an acquiror or any group of which such Holder or any such other person is a member successor) (any such other person or group, an “Additional Beneficial Owner”), would beneficially own in excess of 9.99% of the outstanding shares of the Common Stock (such limitation, the “Conversion Cap”). Upon the request The Issuer shall, within three Business Days of delivery by a Holder of a HolderConversion Notice, notify such Holder in writing of (i) the number of shares of Common Stock that would be issuable to such Holder if such conversion requested in such Conversion Notice were effected in full and (ii) the number of issued and outstanding shares of Common Stock of the Issuer as of the most recent date such information is available to the Issuer. Whereupon, within three Business Days of such notice, the Corporation Issuer shall promptly, and in any event within one trading day of such request, confirm issue to such Holder the number of shares of Common Stock then outstanding. Prior to any issuable upon conversion of the Mandatory Convertible Preferred Stock, each Holder shall either (x) certify to the Corporation that neither such Holder nor any Additional Beneficial Owner would beneficially own in excess of 9.99% of the outstanding shares of the Common Stock upon giving effect to such conversion or (y) identify to the Corporation each other person who would be, or would be a member of a group that would be, an Additional Beneficial Owner of any of such shares of the Common Stock as would be issued upon giving effect to such conversion and provide to the Corporation such other information as it shall reasonably request for the purpose of enforcing the Conversion Cap. The Conversion Cap may be terminated by a Holder with respect to such Holder upon 61 days’ advance written notice to the Corporation. For purposes of this Section 16, the number of shares of the Common Stock beneficially owned by any person shall be calculated in accordance with Rule 16a-1(a)(1) promulgated under the Exchange Act, or any successor rule, in each case giving effect up to the Conversion Cap. In addition, “group” as used in connection with the performance of this Section 16 has 5.13, such Holder agrees to furnish to the meaning set forth Issuer any information reasonably requested by the Issuer in Section 13(d) connection with the Conversion Cap amount calculations. Notwithstanding anything to the contrary, to the extent any such issuance would cause a Holder or an Affiliate thereof to be a “beneficial owner” of more than 9.9% of the Exchange Act issued and the rules and regulations promulgated thereunder. Any outstanding shares of Common Stock due to Holder that are (or successor shares), such conversion, share settlement or issuance upon conversion as the case may be shall be void and of no effect. The limitations set forth in this Section 5.13 may not delivered due be waived at any time by any Holder. Any acquiror (or successor) or the Issuer shall expressly assume the obligations of the Issuer in this Section 5.13 with respect to the Conversion Cap shall be delivered within three (3) Business Days Notes in connection with any transaction governed by Section 5.05 or otherwise in connection with a Fundamental Change of Holder providing notice to the Corporation that such delivery will comply with the Conversion CapControl.

Conversion Cap. Notwithstanding anything contained herein In consideration of the waiver granted hereunder, and without limitation to the contraryprovisions of Section 5.13 of the Securities Purchase Agreement or other Company Restrictions that restrict the conversion by Investors of Convertible Notes into Common Stock, but in addition thereto, the Corporation Investors hereby agree that: (a) Subject to Section 4(b) below, an Investor or any Affiliate (as defined in Section 4(c) below) thereof holding Convertible Notes (a “Holder”) shall not prior be entitled to convert any Convertible Notes to the Mandatory Conversion Date effect any extent, and only to the extent, such conversion would cause such Holder, together with its Affiliates, to become the beneficial owner of more than 9.9% of the Mandatory Convertible Preferred issued and outstanding shares of the Common Stock, as determined pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Company shall, within one Business Day of delivery by a Holder of a Conversion Notice (as defined in Section 4(c) below), notify such Holder in writing of (i) the number of shares of Common Stock for that would be issuable to such Holder if such conversion requested in such Conversion Notice were effected in full and (ii) the number of issued and outstanding shares of Common Stock (as determined pursuant to Section 13 of the Exchange Act) as of the most recent date such information is available to the Company, whereupon, notwithstanding anything to the contrary set forth herein, such Holder may within one Business Day of its receipt of the notice from the Company required by this Section revoke such Conversion Notice to the extent that it determines that such exercise would result in such Holder, together with its Affiliates, owning in excess of 9.9% of the issued and outstanding shares of Common Stock, and as determined pursuant to Section 13 of the Exchange Act. (b) Section 4(a) shall not limit a Holder shall not have the right to voluntarily convert from converting all or any portion of the Mandatory Convertible Preferred Stock for shares Notes if: (i) the Holders and the Licensed Affiliates (as defined in Section 4(c) below) have obtained all Gaming Approvals necessary to hold, and to exercise or convert (as the case may be) in full, any and all exercisable or convertible securities of Common Stockthe Company (the “Company Securities”) held by the Holders and their Affiliates, and a Holder has notified the Company in writing thereof and has not revoked such notification, or (B) none of the Holders or the Licensed Affiliates are required under the Gaming Laws (as defined in Section 4(c) below) to obtain any Gaming Approval (as defined in Section 4(c) below) to hold, or to exercise or convert (as the case may be) in full, any such Company Securities (e.g., the Company does not own or hold any assets or rights that subject it to the authority or jurisdiction of a Gaming Authority (as defined in Section 4(c) below)), and a Holder has notified the Company in writing thereof and has not revoked such notification. In connection with the foregoing, the Company shall use its reasonable best efforts to keep the Investors apprised of all material facts pertaining to the business and affairs of the Company which have, or would reasonably be expected to have, a bearing upon the determination of whether any such Gaming Approvals are or continue to be required, including, without limitation, information pertaining to any acquisitions or dispositions of assets by the Company or any of its Affiliates that are subject to regulation under Gaming Laws, and shall, upon request from a Holder from time to time, provide any documents and records in its possession or in the possession of its Affiliates (to the extent that after giving effect available to the issuance of shares of Common Stock upon Company) that such conversionHolder reasonably requests in order to determine whether such Gaming Approvals are required; provided, that, prior to receiving any documents and records, such Holder shall agree to comply with the Company’s xxxxxxx xxxxxxx policies as in effect and shall agree to keep the information contained therein confidential, including to the extent required so that the Company’s provision of such Holder, another person having beneficial ownership of such shares of Common Stock or documents and records does not cause the Company to breach any group of confidentiality agreement to which such Holder or any such other person it is a member party. (any such other person or group, an “Additional Beneficial Owner”), would beneficially own in excess of 9.99% of the outstanding shares of the Common Stock (such limitation, the “Conversion Cap”). Upon the request of a Holder, the Corporation shall promptly, and in any event within one trading day of such request, confirm to such Holder the number shares of Common Stock then outstanding. Prior to any conversion of the Mandatory Convertible Preferred Stock, each Holder shall either (xc) certify to the Corporation that neither such Holder nor any Additional Beneficial Owner would beneficially own in excess of 9.99% of the outstanding shares of the Common Stock upon giving effect to such conversion or (y) identify to the Corporation each other person who would be, or would be a member of a group that would be, an Additional Beneficial Owner of any of such shares of the Common Stock as would be issued upon giving effect to such conversion and provide to the Corporation such other information as it shall reasonably request for the purpose of enforcing the Conversion Cap. The Conversion Cap may be terminated by a Holder with respect to such Holder upon 61 days’ advance written notice to the Corporation. For purposes of this Section 164, the number of shares of following capitalized terms shall have the Common Stock beneficially owned by any person shall be calculated in accordance with Rule 16a-1(a)(1) promulgated under the Exchange Act, or any successor rule, in each case giving effect to the Conversion Cap. In addition, “group” as used in this Section 16 has the meaning set forth in Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. Any shares of Common Stock due to Holder that are not delivered due to the Conversion Cap shall be delivered within three (3) Business Days of Holder providing notice to the Corporation that such delivery will comply with the Conversion Cap.following meanings ascribed thereto:

Conversion Cap. Notwithstanding anything contained herein to the contrary, the Corporation The Company shall not prior to the Mandatory Conversion Date effect issue any conversion of the Mandatory Convertible Preferred Stock for shares of Common Stock, and a Holder shall not have the right to voluntarily convert any portion of the Mandatory Convertible Preferred Stock for shares of Common Stock, to the extent that after giving effect to the issuance of shares of Common Stock upon such conversion, any conversion of such Holder, another person having beneficial ownership this Note or otherwise pursuant to the terms of this Note if the issuance of such shares of Common Stock would exceed the aggregate number of shares of Common Stock which the Company may issue upon conversion of the Notes without breaching the Company’s obligations, if any, under the rules or any group regulations of the Trading Market (the number of shares which may be issued without violating such Holder or any such other person is a member (any such other person or grouprules and regulations, an “Additional Beneficial Owner”including rules related to the aggregate of offerings under Nasdaq Listing Rule 5635(d), would beneficially own in excess of 9.99% of the outstanding shares of the Common Stock (such limitationas applicable, the “Conversion Cap”). Upon , except that such limitation shall not apply in the request event that the Company obtains the approval of a Holder, its stockholders as required by the Corporation shall promptly, and in any event within one trading day applicable rules of such request, confirm to such Holder the number Trading Market for issuances of shares of Common Stock then outstanding. Prior to any upon conversion of the Mandatory Convertible Preferred Stock, each Holder shall either (x) certify to the Corporation that neither such Holder nor any Additional Beneficial Owner would beneficially own Notes in excess of 9.99% such amount. Until such approval is obtained, no Holder shall be issued in the aggregate, upon conversion of the outstanding any Notes, shares of the Common Stock upon giving effect to such conversion or in an amount greater than the product of (yi) identify to the Corporation each other person who would be, or would be a member of a group that would be, an Additional Beneficial Owner of any of such shares of the Common Stock as would be issued upon giving effect to such conversion and provide to the Corporation such other information as it shall reasonably request for the purpose of enforcing the Conversion CapCap multiplied by (ii) the quotient of (A) the Holder’s Subscription Amount (as defined in the Purchase Agreement) divided by (B) the aggregate principal amount of Notes issued to all Holders (with respect to each Holder, the “Conversion Cap Allocation”). The Conversion Cap may Allocation will be terminated by further allocated as to each Holder among its Notes. In the event that any Holder shall sell or otherwise transfer any of such Holder’s Notes, the transferee shall be allocated a Holder pro rata portion of such Holder’s Conversion Cap Allocation with respect to such Holder upon 61 days’ advance written notice portion of such Notes so transferred, and the restrictions of the prior sentence shall apply to such transferee with respect to the Corporationportion of the Conversion Cap Allocation so allocated to such transferee. For purposes Upon conversion in full of this Section 16a Holder’s Notes, the difference (if any) between such Holder’s Conversion Cap Allocation and the number of shares of the Common Stock beneficially owned by any person actually issued to such Holder upon such conversion in full of such Holder’s Notes shall be calculated in accordance with Rule 16a-1(a)(1) promulgated under the Exchange Act, or any successor rule, in each case giving effect allocated to the respective Conversion Cap. In addition, “group” as used in this Section 16 has the meaning set forth in Section 13(d) Cap Allocations of the Exchange Act and remaining Holders of Notes on a pro rata basis in proportion to the rules and regulations promulgated thereunder. Any shares of Common Stock due to Holder that are not delivered due to underlying the Notes then held by each such Holder. As of the Original Issuance Date, the Conversion Cap shall be delivered within three (3) Business Days is 1,826,197[1] shares of Holder providing notice to the Corporation that such delivery will comply with the Conversion CapCommon Stock.

Conversion Cap. (a) Notwithstanding anything contained any other provision herein to the contrary, the Corporation Company shall not prior be obligated to the Mandatory Conversion Date effect issue any shares of Common Stock upon conversion of the Mandatory Convertible Preferred Stock for Debentures or the exercise of the Warrants if the issuance of such shares of Common Stock, and a Holder shall not have the right to voluntarily convert any portion of the Mandatory Convertible Preferred Stock for together with such other shares of Common StockStock required by the securities laws to be aggregated with the transactions contemplated by this Agreement, to would exceed 19.99% of the extent that after giving effect to the issuance aggregate number of shares of Common Stock upon issued and outstanding at such conversiondate (the "Exchange Cap"), any except that such limitation shall not apply in the event that the Company obtains the approval of its Shareholders pursuant to the rules of The Nasdaq Stock Market, Inc. for issuances of Common Stock in excess of such Holderamount (the "Shareholder Approval"); PROVIDED, another person having beneficial ownership HOWEVER, that notwithstanding anything herein to the contrary, the Company, will issue such number of such shares of Common Stock issuable upon conversion of the Debentures or exercise of the Warrants, as applicable, at the then current Conversion Price up to the Exchange Cap (after giving effect for any group other shares of Common Stock required by the securities laws to be aggregated with the transactions contemplated by this Agreement). (b) If, at any time, a holder of Debentures or of Warrants requests that such Debentures be converted or such Warrants be exercised, as the case may be, and such conversion or exercise would result in the issuance of Common Stock which in the aggregate would exceed the Exchange Cap (after giving effect for any other shares of Common Stock required by the securities laws to be aggregated with the transactions contemplated by this Agreement), the Company shall within 30 days of the Conversion Date or Exercise Date, as the case may be, call a meeting, or solicit the written consent, of its shareholders in order to seek Shareholder Approval, which shareholders meeting shall take place within 60 days of the Conversion Date or Exercise Date, as applicable. Except as otherwise provided by Section 6(b)(iii) below, until such Shareholder Approval or written consent is obtained, the Company shall not be required to convert Debentures into Common Stock or issue Common Stock issuable upon the exercise of the Warrants, as the case may be, in an amount greater than the product of (i) the Exchange Cap amount multiplied by (ii) a fraction, the numerator of which is the principal amount of the Debentures issued to such Holder holder pursuant to this Agreement or any such other person the aggregate number of shares of Common Stock for which the holder's Warrant is a member exercisable (any such other person or group, an “Additional Beneficial Owner”regardless of the limitation provided for in this Section 3.17), would beneficially own as applicable, and the denominator of which is the aggregate principal amount of all the Debentures issued pursuant to this Agreement or the aggregate number of shares of Common Stock for which the Warrants issued pursuant to this Agreement are exercisable (the "Cap Allocation Amount"). In the event that the Company shall convert all of such holder's Debentures or issue Common Stock issuable upon the exercise of all of such holder's Warrants, as the case may be, into a number of shares of Common Stock which, in excess the aggregate, is less than such holder's Cap Allocation Amount, then the difference between such holder's Cap Alloction Amount and the number of 9.99shares of Common Stock actually issued to such holder shall be allocated to the respective Cap Allocation Amounts of the remaining holders of the Debentures or Warrants, as applicable, on a pro rata basis in proportion to the principal amount of the Debentures then outstanding and held by each such holder or the number of shares of Common Stock into which the Warrant is exercisable, as the case may be. Nothing in this provision shall limit a holder's right to request conversion of the Debentures or the exercise of the Warrants. (c) In the event that the Company fails to obtain Shareholder Approval in accordance with this Section 3.17, the Company shall, within five (5) business days after such failure, at the Company's option, either: (i) (A) prepay the portion of the Debentures for which the Company is unable to issue Common Stock in accordance with such Holder's Conversion Notice (as defined in the Debenture), at a price equal to 125% of the outstanding principal amount of the Debenture as of the date of such conversion, after taking into account the extent, if any, to which the Company was able to convert a portion of the Debenture into shares of Common Stock or, if applicable, (B) redeem the portion of the Warrant for which the Company is unable to issue Common Stock in accordance with such Holder's notice of exercise, at a redemption price equal to 125% of the Warrant Price as of the date of such exercise, after taking into account the extent, if any, to which the Warrant was able to be exercised for shares of Common Stock in accordance with Section 3.17(a) above; or (ii) regardless of the Exchange Cap, issue shares of the Common Stock (such limitation, the “Conversion Cap”). Upon the request of a Holder, the Corporation shall promptly, and in any event within one trading day of such request, confirm to such Holder the number shares of Common Stock then outstanding. Prior to any conversion of the Mandatory Convertible Preferred Stock, each Holder shall either (x) certify to the Corporation that neither such Holder nor any Additional Beneficial Owner would beneficially own in excess of 9.99% of the outstanding shares of the Common Stock upon giving effect to such conversion or (y) identify to the Corporation each other person who would be, or would be a member of a group that would be, an Additional Beneficial Owner of any of such shares of the Common Stock as would be issued upon giving effect to such conversion and provide to the Corporation such other information as it shall reasonably request for the purpose of enforcing the Conversion Cap. The Conversion Cap may be terminated by a Holder with respect to such Holder upon 61 days’ advance written notice to the Corporation. For purposes of this Section 16, the number of shares of the Common Stock beneficially owned by any person shall be calculated in accordance with Rule 16a-1(a)(1such Holder's (A) promulgated under the Exchange Act, Conversion Notice or any successor rule, in each case giving effect (B) notice of exercise pursuant to the Conversion Cap. In addition, “group” as used in this Section 16 has Warrant. (d) Notwithstanding anything to the meaning set forth contrary contained in Section 13(d3.17(c) above, the Holder may elect to void its Conversion Notice or notice of exercise, as the case may be, and retain or have returned, as applicable, the portion of the Exchange Act and Debentures or Warrants that was to be converted or exercised pursuant to such Holder's notice (provided that a Holder's voiding its Conversion Notice shall not effect the rules and regulations promulgated thereunder. Any shares of Common Stock due Company's obligations to Holder that are not delivered due make any payments which have accrued prior to the Conversion Cap shall be delivered within three (3) Business Days date of Holder providing notice to the Corporation that such delivery will comply with the Conversion Capnotice).

Conversion Cap. Notwithstanding anything contained herein to the contrary, the Corporation Borrower shall not prior to the Mandatory Conversion Date effect issue any conversion of the Mandatory Convertible Preferred Stock for shares of Common Stock, and a Holder shall not have the right to voluntarily convert any portion of the Mandatory Convertible Preferred Stock for shares of Common Stock, to the extent that after giving effect to the issuance of shares of Common Stock upon such conversion, any conversion of such Holder, another person having beneficial ownership this Note or otherwise pursuant to the terms of this Note if the issuance of such shares of Common Stock would exceed the aggregate number of shares of Common Stock which the Borrower may issue upon conversion of the Notes without breaching the Borrower’s obligations, if any, under the rules or any group regulations of the Trading Market (the number of shares which may be issued without violating such Holder or any such other person is a member (any such other person or grouprules and regulations, an “Additional Beneficial Owner”including rules related to the aggregate of offerings under Nasdaq Listing Rule 5635(d), would beneficially own in excess of 9.99% of the outstanding shares of the Common Stock (such limitationas applicable, the “Conversion Cap”). Upon , except that such limitation shall not apply in the request event that the Borrower obtains the approval of a Holder, its stockholders as required by the Corporation shall promptly, and in any event within one trading day applicable rules of such request, confirm to such Holder the number Trading Market for issuances of shares of Common Stock then outstanding. Prior to any upon conversion of the Mandatory Convertible Preferred Stock, each Holder shall either (x) certify to the Corporation that neither such Holder nor any Additional Beneficial Owner would beneficially own Notes in excess of 9.99% such amount. Until such approval is obtained, no Holder shall be issued in the aggregate, upon conversion of the outstanding any Notes, shares of the Common Stock upon giving effect to such conversion or in an amount greater than the product of (yi) identify to the Corporation each other person who would be, or would be a member of a group that would be, an Additional Beneficial Owner of any of such shares of the Common Stock as would be issued upon giving effect to such conversion and provide to the Corporation such other information as it shall reasonably request for the purpose of enforcing the Conversion CapCap multiplied by (ii) the quotient of (A) the Holder’s Subscription Amount (as defined in the Securities Purchase Agreement) divided by (B) the aggregate principal amount of Notes issued to all Holders (with respect to each Holder, the “Conversion Cap Allocation”). The Conversion Cap may Allocation will be terminated by further allocated as to each Holder among its Notes. In the event that any Holder shall sell or otherwise transfer any of such Holder’s Notes, the transferee shall be allocated a Holder pro rata portion of such Holder’s Conversion Cap Allocation with respect to such Holder upon 61 days’ advance written notice portion of such Notes so transferred, and the restrictions of the prior sentence shall apply to such transferee with respect to the Corporationportion of the Conversion Cap Allocation so allocated to such transferee. For purposes Upon conversion in full of this Section 16a Holder’s Notes, the difference (if any) between such Holder’s Conversion Cap Allocation and the number of shares of the Common Stock beneficially owned by any person actually issued to such Holder upon such Holder’s conversion in full of such Holder’s Notes shall be calculated in accordance with Rule 16a-1(a)(1) promulgated under the Exchange Act, or any successor rule, in each case giving effect allocated to the respective Conversion Cap. In addition, “group” as used in this Section 16 has the meaning set forth in Section 13(d) Cap Allocations of the Exchange Act and remaining Holders of Notes on a pro rata basis in proportion to the rules and regulations promulgated thereunder. Any shares of Common Stock due to Holder that are not delivered due to underlying the Notes then held by each such Holder. As of the Initial Issue Date, the Conversion Cap shall be delivered within three (3) Business Days is not less than 5,300,260 shares of Holder providing notice to the Corporation that such delivery will comply with the Conversion CapCommon Stock.