Common use of Limitation on Acquisition of Common Stock Clause in Contracts

Limitation on Acquisition of Common Stock. Notwithstanding anything to the contrary contained in this Agreement, any Ancillary Agreement, or any document, instrument or agreement entered into in connection with any other transaction entered into by and between such Lender and any Company (and/or Subsidiaries or Affiliates of any Company), such Lender (and/or Subsidiaries or Affiliates of such Lender) shall not acquire stock in the Parent (including, without limitation, pursuant to a contract to purchase, by exercising an option or warrant, by converting any other security or instrument, by acquiring or exercising any other right to acquire, shares of stock or other security convertible into shares of stock in the Parent, or otherwise, and such options, warrants, conversion or other rights shall not be exercisable) to the extent such stock acquisition would cause any interest (including any original issue discount) payable by any Company to a Non-U.S. Lender not to qualify as portfolio interest, within the meaning of Section 871(h)(2) or Section 881(c)(2) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) by reason of Section 871(h)(3) or Section 881(c)(3)(B) of the Code, as applicable, taking into account the constructive ownership rules under Section 871(h)(3)(C) of the Code (the “Stock Acquisition Limitation”). The Stock Acquisition Limitation shall automatically become null and void with respect to a Lender, without any notice to any Company, on and after the first date upon which such Lender and each of its Affiliates which qualify as a Non-U.S. Lender no longer owns any indebtedness (including, without limitation, principal, interest, fees and charges) of any Company.

Limitation on Acquisition of Common Stock. Notwithstanding anything to the contrary contained in this Agreement, any Ancillary Agreement, or any document, instrument or agreement entered into in connection with any other transaction entered into by and between such Lender and any Company (and/or Subsidiaries or Affiliates of any Company), such Lender (and/or Subsidiaries or Affiliates of such Lender) shall not acquire stock in the Parent (including, without limitation, pursuant to a contract to purchase, by exercising an option or warrant, by converting any other security or instrument, by acquiring or exercising any other right to acquire, shares of stock or other security convertible into shares of stock in the Parent, or otherwise, and such options, warrants, conversion or other rights shall not be exercisable) to the extent such stock acquisition would cause any interest (including any original issue discount) payable by any Company to a Non-U.S. Lender not to qualify as portfolio interest, within the meaning of Section 871(h)(2) or Section 881(c)(2) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) by reason of Section 871(h)(3) or Section 881(c)(3)(B) of the Code, as applicable, taking into account the constructive ownership rules under Section 871(h)(3)(C) of the Code (the “Stock Acquisition Limitation”). The Stock Acquisition Limitation shall automatically become null and void with respect to a each Lender, without any notice to any Company, upon the existence of an Event of Default at a time when the average closing price of the Common Stock as reported by Bloomberg, L.P. on and after the first date upon which such Lender and each Principal Market for the immediately preceding five trading days is greater than or equal to 200% of its Affiliates which qualify the Exercise Price (as a Non-U.S. Lender no longer owns any indebtedness (including, without limitation, principal, interest, fees and charges) of any Companydefined in the Warrants).

Limitation on Acquisition of Common Stock. Notwithstanding anything to the contrary contained in this Agreement, any Ancillary Agreement, or any document, instrument or agreement entered into in connection with any other transaction entered into by and between such Lender and any Company (and/or Subsidiaries or Affiliates of any Company), such Lender (and/or Subsidiaries or Affiliates of such Lender) shall not acquire stock in the Parent (including, without limitation, pursuant to a contract to purchase, by exercising an option or warrant, by converting any other security or instrument, by acquiring or exercising any other right to acquire, shares of stock or other security convertible into shares of stock in the Parent, or otherwise, and such options, warrants, conversion or other rights shall not be exercisable) to the extent such stock acquisition would cause any interest (including any original issue discount) payable by any Company to a Non-U.S. Lender not to qualify as portfolio interest, within the meaning of Section 871(h)(2) or Section 881(c)(2) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) by reason of Section 871(h)(3) or Section 881(c)(3)(B) of the Code, as applicable, taking into account the constructive ownership rules under Section 871(h)(3)(C) of the Code (the “Stock Acquisition Limitation”). The Stock Acquisition Limitation shall automatically become null and void with respect to a Lender, without any notice to any Company, upon the earlier to occur of either (a) the Parent’s delivery to Agent of a Notice of Redemption (as defined in the Secured Convertible Term Notes) or (b) the existence of an Event of Default at a time when the average closing price of the Common Stock as reported by Bloomberg, L.P. on and after the first date upon which such Lender and each Principal Market for the immediately preceding five trading days is greater than or equal to 150% of its Affiliates which qualify the Fixed Conversion Price (as a Non-U.S. Lender no longer owns any indebtedness (including, without limitation, principal, interest, fees and charges) of any Companydefined in the Secured Convertible Term Notes).

Limitation on Acquisition of Common Stock. Notwithstanding anything to the contrary contained in this Agreement, any Ancillary Agreement, or any document, instrument or agreement entered into in connection with any other transaction entered into by and between such Lender and any Company (and/or Subsidiaries or Affiliates of any Company), such Lender (and/or Subsidiaries or Affiliates of such Lender) shall not acquire stock in the Parent (including, without limitation, pursuant to a contract to purchase, by exercising an option or warrant, by converting any other security or instrument, by acquiring or exercising any other right to acquire, shares of stock or other security convertible into shares of stock in the Parent, or otherwise, and such options, warrants, conversion or other rights shall not be exercisable) to the extent such stock acquisition would cause any interest (including any original issue discount) payable by any Company to a Non-U.S. Lender not to qualify as portfolio interest, within the meaning of Section 871(h)(2) or Section 881(c)(2) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) by reason of Section 871(h)(3) or Section 881(c)(3)(B) of the Code, as applicable, taking into account the constructive ownership rules under Section 871(h)(3)(C) of the Code (the “Stock Acquisition Limitation”). The Stock Acquisition Limitation shall automatically become null and void with respect to a each Lender, without any notice to any Company, on and after the first date upon which earlier to occur of either (a) the Parent’s delivery to such Lender and each of its Affiliates which qualify a Notice of Redemption (as defined in the applicable Secured Term Note) or (b) upon the existence of an Event of Default at a Non-U.S. Lender no longer owns any indebtedness time when the average closing price of the Common Stock as reported by Bloomberg, L.P. on the Principal Market for the immediately preceding five trading days is greater than or equal to 200% of the Exercise Price (including, without limitation, principal, interest, fees and charges) of any Companyas defined in the Warrants).