Common use of Exercise Restrictions Clause in Contracts

Exercise Restrictions. The right of a holder of Repricing Rights to --------------------- exercise such Repricing Rights shall be limited as set forth below. (i) Notwithstanding anything to the contrary in this Agreement, in no event shall any holder of Repricing Rights be entitled to exercise Repricing Rights to the extent that the receipt of Repricing Common Shares resulting therefrom would result in the holder beneficially owning (as determined in accordance with Section 13(d) of the Exchange Act and the rules thereunder) in excess of 4.999% of the then issued and outstanding shares of Common Stock, including shares of Common Stock then held by such holder and shares issuable upon exercise of the Repricing Rights (and other derivative securities) held by such holder after application of this Section. The holder shall have the sole authority and obligation to determine whether the restriction contained in this Section applies and to the extent that the holder determines that the limitation contained in this Section applies, the determination of which Repricing Rights are exercisable shall be in the sole discretion of the holder. The provisions of this Section may be waived by a holder (but only as to itself and not to any other holder) upon not less than 75 days prior notice to the Company. Other holders shall be unaffected by any such waiver. (ii) Notwithstanding anything to the contrary in this Agreement, in no event shall any holder of Repricing Rights be entitled to exercise Repricing Rights to the extent that the receipt of Repricing Common Shares resulting therefrom would result in the holder beneficially owning (as determined in accordance with Section 13(d) of the Exchange Act and the rules thereunder) in excess of 9.999% of the then issued and outstanding shares of Common Stock, including shares of Common Stock then held by such holder and shares issuable upon exercise of the Repricing Rights (and other derivative securities) held by such holder after application of this Section. The holder shall have the sole authority and obligation to determine whether the restriction contained in this Section applies and to the extent that the holder determines that the limitation contained in this Section applies, the determination of which Repricing Rights are exercisable shall be in the sole discretion of the holder. The provisions of this Section may be waived by a holder (but only as to itself and not to any other holder) upon not less than 75 days prior notice to the Company. Other holders shall be unaffected by any such waiver.

Exercise Restrictions. The In addition to the termination provisions set forth in Section 5(e), the right of a holder of Repricing Rights to --------------------- exercise such Repricing Rights to this Section 5 shall be limited as set forth below. (i) Notwithstanding anything to Without the contrary in this Agreementprior consent of the Company, in no event shall any a holder of Repricing Rights shall not be entitled to exercise an aggregate number of Repricing Rights to from the extent that Closing Date through the receipt date of Repricing Common Shares resulting therefrom would result in the holder beneficially owning (as determined in accordance with Section 13(d) of the Exchange Act and the rules thereunder) this determination in excess of 4.999% the number of Repricing Rights which when divided by the then issued and outstanding shares number of Common Stock, including shares of Common Stock then held Repricing Rights purchased by such holder would exceed (i) 0.00 for the period beginning on the Closing Date and shares issuable upon ending on and including the date which is 120 days thereafter, (ii) 0.25 for the period beginning on the date which is 121 days after the Closing Date and ending on and including the date which is 150 days after the Closing Date, (iii) 0.50 for the period beginning on and including the date which is 151 days after the Closing Date and ending on and including the date which is 180 days after the Closing Date, (iv) 0.75 for the period beginning on the date which is 181 days after the Closing Date and ending on and including the date which is 210 days after the Closing Date, and (v) 1.00 for the period beginning on and including the date which is 211 days after the Closing Date. All such periods shall be considered on a cumulative basis. Notwithstanding the foregoing, the exercise of the Repricing Rights (and other derivative securities) held by such holder after application of this Section. The holder shall have the sole authority and obligation to determine whether the restriction contained set forth in this Section applies and 5(d) shall cease to apply if an event constituting a Major Transaction or a Triggering Event (as defined in Section 7 below) shall have occurred or been publicly announced or if a Registration Statement shall not have been declared effective by the extent that 120th day after the holder determines that the limitation contained in this Section applies, the determination of which Repricing Rights are exercisable shall be in the sole discretion of the holder. The provisions of this Section may be waived by a holder (but only as to itself and not to any other holder) upon not less than 75 days prior notice to the Company. Other holders shall be unaffected by any such waiverClosing Date. (ii) Notwithstanding anything to the contrary in this Agreement, in no event shall any holder of Repricing Rights be entitled to exercise Repricing Rights in excess of that number of Repricing Rights which, upon giving effect to such exercise, would cause the aggregate number of shares of Common Stock beneficially owned by the holder and its affiliates to exceed 4.99% of the outstanding shares of the Common Stock following such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by the holder and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the Repricing Rights with respect to which the determination of the foregoing sentence is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (A) exercise of the remaining, unexercised Repricing Rights beneficially owned by the holder and its affiliates, and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, any warrants) subject to a limitation on conversion or exercise analogous to the extent that limitation contained herein beneficially owned by the receipt of Repricing Common Shares resulting therefrom would result holder and its affiliates. Except as set forth in the holder beneficially owning (as determined preceding sentence, for purposes of this Section 5(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act and of 1934, as amended. A holder may, as to itself only, waive the rules thereunderforegoing limitations by written notice to the Company upon not less than 61 days prior notice (with such waiver taking effect only upon the expiration of such 61 day notice period). (iii) Notwithstanding anything to the contrary in this Agreement, in no event shall any holder of Repricing Rights be entitled to exercise Repricing Rights in excess of 9.999% that number of Repricing Rights which, upon giving effect to such exercise, would cause the then issued and outstanding shares aggregate number of Common Stock, including shares of Common Stock then held beneficially owned by such the holder and its affiliates to exceed 9.99% of the outstanding shares of the Common Stock following such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by the holder and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the Repricing Rights with respect to which the determination of the foregoing sentence is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (and other derivative securitiesA) held exercise of the remaining, unexercised Repricing Rights beneficially owned by such holder after application of this Section. The holder shall have the sole authority and obligation to determine whether the restriction contained in this Section applies and to the extent that the holder determines that and its affiliates, and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, any warrants) subject to a limitation on conversion or exercise analogous to the limitation contained in this Section applies, herein beneficially owned by the determination of which Repricing Rights are exercisable shall be holder and its affiliates. Except as set forth in the sole discretion of the holder. The provisions preceding sentence, for purposes of this Section may 5(d), beneficial ownership shall be waived by a calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended. A holder (but only may, as to itself and not only, waive the foregoing limitations by written notice to any other holder) the Company upon not less than 75 61 days prior notice to (with such waiver taking effect only upon the Company. Other holders shall be unaffected by any expiration of such waiver61 day notice period).

Exercise Restrictions. The In addition to the termination provisions set forth in Section 3(h), the right of a holder of Repricing Rights the Buyer to --------------------- exercise such Repricing Rights pursuant to this Section 3 shall be limited as set forth below. (i1) During each consecutive period of 30 days commencing on the date the Initial Repricing Rights first become exercisable, the Buyer may not exercise more than the sum of (A) 20% of the Total Repricing Rights and (B) any unexercised Repricing Rights which were permitted to be exercised in any prior 30-day period. Accordingly, unused Repricing Rights in prior 30-day periods may be carried forward to future periods on a cumulative basis, and all Repricing Rights become exercisable without restriction under this Section 3(g)(1) commencing 211 days after the Closing Date. (2) Notwithstanding anything to the contrary in this Agreement, in no event shall any holder of Repricing Rights the Buyer be entitled to exercise any Repricing Rights to the extent in excess of that the receipt number of Repricing Rights upon exercise of which the sum of (x) the number of shares of Common Shares resulting therefrom Stock beneficially owned by the Buyer and all of its Aggregated Persons (other than shares of Common Stock deemed beneficially owned through the ownership of unexercised Repricing Rights and Warrants and the unexercised or unconverted portion of any instrument which contains limitations similar to those set forth in this sentence) and (y) the number of shares of Common Stock issuable or deliverable upon the exercise of the number of Repricing Rights with respect to which the determination in this sentence is being made, would result in beneficial ownership by the holder beneficially owning (as Buyer and all Aggregated Persons of the Buyer of more than 9.9% of the outstanding shares of Common Stock. For purposes of the immediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange 1934 Act and the rules Regulation 13D-G thereunder) , except as otherwise provided in excess of 4.999% of the then issued and outstanding shares of Common Stock, including shares of Common Stock then held by such holder and shares issuable upon exercise of the Repricing Rights clause (and other derivative securities) held by such holder after application of this Section. The holder shall have the sole authority and obligation to determine whether the restriction contained in this Section applies and to the extent that the holder determines that the limitation contained in this Section applies, the determination of which Repricing Rights are exercisable shall be in the sole discretion of the holder. The provisions of this Section may be waived by a holder (but only as to itself and not to any other holder) upon not less than 75 days prior notice to the Company. Other holders shall be unaffected by any such waiver. (ii) Notwithstanding anything to the contrary in this Agreement, in no event shall any holder of Repricing Rights be entitled to exercise Repricing Rights to the extent that the receipt of Repricing Common Shares resulting therefrom would result in the holder beneficially owning (as determined in accordance with Section 13(dx) of the Exchange Act and the rules thereunder) in excess of 9.999% of the then issued and outstanding shares of Common Stock, including shares of Common Stock then held by such holder and shares issuable upon exercise of the Repricing Rights (and other derivative securities) held by such holder after application of this Section. The holder shall have the sole authority and obligation to determine whether the restriction contained in this Section applies and to the extent that the holder determines that the limitation contained in this Section applies, the determination of which Repricing Rights are exercisable shall be in the sole discretion of the holder. The provisions of this Section may be waived by a holder (but only as to itself and not to any other holder) upon not less than 75 days prior notice to the Company. Other holders shall be unaffected by any such waiverimmediately preceding sentence.