Common use of Conversion Cap Clause in Contracts

Conversion Cap. Notwithstanding anything to the contrary in this Indenture, (a) a Person or any Affiliate thereof holding the Notes shall not 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 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 Exchange Act and Rules 13d-3 and 13d-5 thereunder) of more than 9.9% of the issued and outstanding shares of Common Stock (or such equivalent shares of an acquiror or successor) (the “Conversion Cap”). The Issuer shall, within three Business Days of delivery by a Holder of a Conversion 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 Issuer shall issue to such Holder the number of shares of Common Stock issuable upon conversion up to the Conversion Cap. In connection with the performance of this Section 5.13, such Holder agrees to furnish to the Issuer any information reasonably requested by the Issuer in 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 issued and outstanding shares of Common Stock (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 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 Notes in connection with any transaction governed by Section 5.05 or otherwise in connection with a Fundamental Change of Control.

Conversion Cap. Notwithstanding anything In consideration of the waiver granted hereunder, and without limitation to the contrary provisions 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 this Indentureaddition thereto, the Investors hereby agree that: (a) a Person Subject to Section 4(b) below, an Investor or any Affiliate (as defined in Section 4(c) below) thereof holding the Convertible Notes (a “Holder”) shall not be entitled to convert any Convertible 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 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 conversion would cause such PersonHolder, together with its Affiliates, to become a the beneficial owner (as determined pursuant to Section 13 of the Exchange Act and Rules 13d-3 and 13d-5 thereunder) of more than 9.9% of the issued and outstanding shares of the Common Stock (or such equivalent shares Stock, as determined pursuant to Section 13 of an acquiror or successor) the Securities Exchange Act of 1934, as amended (the “Conversion CapExchange Act”). The Issuer Company shall, within three one Business Days Day of delivery by a Holder of a Conversion NoticeNotice (as defined in Section 4(c) below), 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 (as determined pursuant to Section 13 of the Issuer Exchange Act) as of the most recent date such information is available to the Issuer. WhereuponCompany, within three Business Days of such noticewhereupon, the Issuer shall issue to such Holder the number of shares of Common Stock issuable upon conversion up notwithstanding anything to the Conversion Cap. In connection with the performance of this Section 5.13contrary set forth herein, such Holder agrees to furnish to may within one Business Day of its receipt of the Issuer any information reasonably requested notice from the Company required by the Issuer in connection with the this Section revoke such Conversion Cap amount calculations. Notwithstanding anything to the contrary, Notice to the extent any that it determines that such issuance exercise would cause a Holder or an Affiliate thereof to be a “beneficial owner” result in such Holder, together with its Affiliates, owning in excess of more than 9.9% of the issued and outstanding shares of Common Stock Stock, as determined pursuant to Section 13 of the Exchange Act. (b) Section 4(a) shall not limit a Holder from converting all or successor shares)any portion of the Convertible Notes if: (i) the Holders and the Licensed Affiliates (as defined in Section 4(c) below) have obtained all Gaming Approvals necessary to hold, such conversion, share settlement and to exercise or issuance upon conversion convert (as the case may be) in full, any and all exercisable or convertible securities of the 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 available to the Company) that such Holder reasonably requests in order to determine whether such Gaming Approvals are required; provided, that, prior to receiving any documents and records, such Holder shall be void 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 no effect. The limitations set forth in such documents and records does not cause the Company to breach any confidentiality agreement to which it is a party. (c) For purposes of this Section 5.13 may not be waived at any time by any Holder. Any acquiror (or successor) or 4, the Issuer following capitalized terms shall expressly assume have the obligations of the Issuer in this Section 5.13 with respect to the Notes in connection with any transaction governed by Section 5.05 or otherwise in connection with a Fundamental Change of Control.following meanings ascribed thereto:

Conversion Cap. Notwithstanding anything contained herein to the contrary in this Indenturecontrary, (a) a Person or any Affiliate thereof holding the Notes Corporation shall not be entitled 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 Notes (and portion of 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 Mandatory Convertible Preferred Stock for shares of its Common Stock and (iii) shares of any acquiror (or successor) shall not be issued upon conversion pursuant Stock, to the adjustment mechanisms contained in Section 5.05 in connection with a transaction governed by Section 5.05 or upon a Fundamental Change of Control extent that after giving effect 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 Exchange Act and Rules 13d-3 and 13d-5 thereunder) of more than 9.9% of the issued and outstanding shares of Common Stock (or upon such equivalent 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 acquiror or successor) “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 Issuer shall, within three Business Days of delivery Conversion Cap may be terminated by a Holder of a Conversion Notice, notify with respect to such Holder in writing upon 61 days’ advance written notice to the Corporation. For purposes of (i) this Section 16, the number of shares of the Common Stock that would beneficially owned by any person shall be issuable to such Holder if such conversion requested calculated in such Conversion Notice were effected accordance with Rule 16a-1(a)(1) promulgated under the Exchange Act, or any successor rule, 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 Issuer shall issue to such Holder the number of shares of Common Stock issuable upon conversion up each case giving effect to the Conversion Cap. In connection with the performance of addition, “group” as used in this Section 5.13, such Holder agrees to furnish to 16 has the Issuer any information reasonably requested by the Issuer meaning set forth in 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% Section 13(d) of the issued Exchange Act and outstanding the rules and regulations promulgated thereunder. Any shares of Common Stock (or successor shares), such conversion, share settlement or issuance upon conversion as due to Holder that are not delivered due to the case may be Conversion Cap shall be void and delivered within three (3) Business Days of no effect. The limitations set forth in this Section 5.13 may not 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 Holder providing notice to the Notes in connection Corporation that such delivery will comply with any transaction governed by Section 5.05 or otherwise in connection with a Fundamental Change of Controlthe Conversion Cap.

Conversion Cap. Notwithstanding anything to the contrary in this Indenture, (a) a Person or any Affiliate thereof holding the Notes The Company shall not be entitled to convert issue 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 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 Exchange Act and Rules 13d-3 and 13d-5 thereunder) of more than 9.9% of the issued and outstanding shares of Common Stock (upon conversion of this Note or otherwise pursuant to the terms of this Note if the issuance of such equivalent shares of an acquiror 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 successor) regulations of the Trading Market (the number of shares which may be issued without violating such rules and regulations, including rules related to the aggregate of offerings under Nasdaq Listing Rule 5635(d), as applicable, the “Conversion Cap”), except that such limitation shall not apply in the event that the Company obtains the approval of its stockholders as required by the applicable rules of the Trading Market for issuances of shares of Common Stock upon conversion of the Notes in excess of such amount. The Issuer shallUntil such approval is obtained, within three Business Days no Holder shall be issued in the aggregate, upon conversion of delivery by a Holder any Notes, shares of a Conversion Notice, notify such Holder Common Stock in writing an amount greater than the product of (i) the Conversion Cap 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 Allocation will be 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 pro rata portion of such Holder’s Conversion Cap Allocation with respect to such portion of such Notes so transferred, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Conversion Cap Allocation so allocated to such transferee. Upon conversion in full of a Holder’s Notes, the difference (if any) between such Holder’s Conversion Cap Allocation and the number of shares of Common Stock that would be issuable actually issued to such Holder if upon such conversion requested in such Conversion Notice were effected in full and (ii) of such Holder’s Notes shall be allocated to the number respective Conversion Cap Allocations of issued and outstanding the remaining Holders of Notes on a pro rata basis in proportion to the shares of Common Stock underlying the Notes then held by each such Holder. As of the Issuer as of the most recent date such information is available to the Issuer. Whereupon, within three Business Days of such noticeOriginal Issuance Date, the Issuer shall issue to such Holder the number of Conversion Cap is 1,826,197[1] shares of Common Stock issuable upon conversion up to the Conversion Cap. In connection with the performance of this Section 5.13, such Holder agrees to furnish to the Issuer any information reasonably requested by the Issuer in 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 issued and outstanding shares of Common Stock (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 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 Notes in connection with any transaction governed by Section 5.05 or otherwise in connection with a Fundamental Change of ControlStock.

Conversion Cap. Notwithstanding anything to the contrary in this Indenture, (a) a Person or Notwithstanding any Affiliate thereof holding other provision herein to the Notes contrary, the Company shall not be entitled obligated to convert issue 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 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 Exchange Act and Rules 13d-3 and 13d-5 thereunder) of more than 9.9% of the issued and outstanding shares of Common Stock (upon conversion of the Debentures or the exercise of the Warrants if the issuance of such equivalent shares of an acquiror or successor) (Common Stock, together with such other shares of Common Stock required by the “Conversion Cap”). The Issuer shallsecurities laws to be aggregated with the transactions contemplated by this Agreement, within three Business Days would exceed 19.99% of delivery by a Holder of a Conversion Notice, notify such Holder in writing of (i) the aggregate 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 at such date (the "Exchange Cap"), 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 amount (the Issuer as of the most recent date such information is available "Shareholder Approval"); PROVIDED, HOWEVER, that notwithstanding anything herein to the Issuer. Whereupon, within three Business Days of such noticecontrary, the Issuer shall Company, will issue to such Holder the number of 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 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 CapDate 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 pursuant to this Agreement or the aggregate number of shares of Common Stock for which the holder's Warrant is exercisable (regardless of the limitation provided for in this Section 3.17), 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 connection 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 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 shares 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 the performance of this Section 5.133.17, the Company shall, within five (5) business days after such Holder agrees failure, at the Company's option, either: (i) (A) prepay the portion of the Debentures for which the Company is unable to furnish 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 in accordance with such Holder's (A) Conversion Notice or (B) notice of exercise pursuant to the Issuer any information reasonably requested by the Issuer in connection with the Conversion Cap amount calculations. Warrant. (d) Notwithstanding anything to the contrarycontrary contained in Section 3.17(c) above, the Holder may elect to the extent any such issuance would cause a Holder void its Conversion Notice or an Affiliate thereof to be a “beneficial owner” notice of more than 9.9% of the issued and outstanding shares of Common Stock (or successor shares)exercise, such conversion, share settlement or issuance upon conversion as the case may be shall be void be, and of no effect. The limitations set forth in this Section 5.13 may not be waived at any time by any Holder. Any acquiror (retain or successor) or have returned, as applicable, the Issuer shall expressly assume the obligations portion of the Issuer in this Section 5.13 with respect 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 Company's obligations to make any payments which have accrued prior to the Notes in connection with any transaction governed by Section 5.05 or otherwise in connection with a Fundamental Change date of Controlsuch notice).

Conversion Cap. Notwithstanding anything to the contrary in this Indenture, (a) a Person or any Affiliate thereof holding the Notes Borrower shall not be entitled to convert issue 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 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 Exchange Act and Rules 13d-3 and 13d-5 thereunder) of more than 9.9% of the issued and outstanding shares of Common Stock (upon conversion of this Note or otherwise pursuant to the terms of this Note if the issuance of such equivalent shares of an acquiror 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 successor) regulations of the Trading Market (the number of shares which may be issued without violating such rules and regulations, including rules related to the aggregate of offerings under Nasdaq Listing Rule 5635(d), as applicable, the “Conversion Cap”), except that such limitation shall not apply in the event that the Borrower obtains the approval of its stockholders as required by the applicable rules of the Trading Market for issuances of shares of Common Stock upon conversion of the Notes in excess of such amount. The Issuer shallUntil such approval is obtained, within three Business Days no Holder shall be issued in the aggregate, upon conversion of delivery by a Holder any Notes, shares of a Conversion Notice, notify such Holder Common Stock in writing an amount greater than the product of (i) the Conversion Cap 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 Allocation will be 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 pro rata portion of such Holder’s Conversion Cap Allocation with respect to such portion of such Notes so transferred, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Conversion Cap Allocation so allocated to such transferee. Upon conversion in full of a Holder’s Notes, the difference (if any) between such Holder’s Conversion Cap Allocation and the number of shares of Common Stock that would be issuable actually issued to such Holder if upon such Holder’s conversion requested in such Conversion Notice were effected in full and (ii) of such Holder’s Notes shall be allocated to the number respective Conversion Cap Allocations of issued and outstanding the remaining Holders of Notes on a pro rata basis in proportion to the shares of Common Stock underlying the Notes then held by each such Holder. As of the Issuer as of the most recent date such information is available to the Issuer. Whereupon, within three Business Days of such noticeInitial Issue Date, the Issuer shall issue to such Holder the number of Conversion Cap is not less than 5,300,260 shares of Common Stock issuable upon conversion up to the Conversion Cap. In connection with the performance of this Section 5.13, such Holder agrees to furnish to the Issuer any information reasonably requested by the Issuer in 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 issued and outstanding shares of Common Stock (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 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 Notes in connection with any transaction governed by Section 5.05 or otherwise in connection with a Fundamental Change of ControlStock.