Common use of Limitation on Beneficial Ownership Clause in Contracts

Limitation on Beneficial Ownership. The Company shall not effect any sale under this Agreement and the Buyer shall not have the right to purchase shares of Common Stock under this Agreement to the extent that after giving effect to such purchase the Buyer together with its affiliates would beneficially own in excess of 4.9% of the outstanding shares of the Common Stock following such purchase and provided that the Buyer has delivered to the Company notice that such purchase would cause the Buyer together with its affiliates to beneficially own in excess of 4.9% of the outstanding shares of the Common Stock following such purchase. For purposes hereof, the number of shares of Common Stock beneficially owned by the Buyer and its affiliates or acquired by the Buyer and its affiliates, as the case may be, shall include the number of shares of Common Stock issuable in connection with a purchase under this Agreement with respect to which the determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (1) a purchase of the remaining Available Amount which has not been submitted for purchase, and (2) 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 herein beneficially owned by the Buyer and its affiliates. If the 4.9% limitation is ever reached the Company shall have the option to increase such limitation to 9.9% by delivery of written notice to the Buyer. Thereafter, if the 9.9% limitation is ever reached this shall not affect or limit the Buyer's obligation to purchase the Daily Purchase Amount as otherwise provided in this Agreement. Specifically, even though the Buyer may not receive additional shares of Common Stock in the event that the 9.9% limitation is ever reached, the Buyer is still obligated to pay to the Company the Daily Purchase Amount on each Trading Day as otherwise obligated under this Agreement, e.g. no Event of Default (as defined in Section 9 hereof) has occurred, nor any event which, after notice and/or lapse of time, would become an Event of Default. Under such circumstances, the Buyer would have the right to acquire additional shares of Common Stock in the future only at such time as its ownership subsequently become less than the 9.9% limitation. For purposes of this Section, in determining the number of outstanding shares of Common Stock the Buyer may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company's most recent Form 10-Q or Form 10-K, as the case may be, (2) a more recent public announcement by the Company or (3) any other written communication by the Company or its Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the reasonable written or oral request of the Buyer, the Company shall promptly confirm orally and in writing to the Buyer the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to any purchases under this Agreement by the Buyer since the date as of which such number of outstanding shares of Common Stock was reported. Except as otherwise set forth herein, for purposes of this Section 1(d)(i), beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended.

Limitation on Beneficial Ownership. The Company shall not effect any sale under this Agreement and the Buyer Holder shall not have the right to purchase shares of Common Stock under this Agreement exchange any Exchange Right pursuant to Section 2(D) to the extent that after giving effect to such purchase the Buyer exchange Holder (together with its affiliates such person's affiliates) would beneficially own in excess of 4.94.99% of the outstanding shares of the Common Stock following such purchase and provided that the Buyer has delivered to the Company notice that such purchase would cause the Buyer together with its affiliates to beneficially own in excess of 4.9% of the outstanding shares of the Common Stock following such purchaseexchange. For purposes hereofof the foregoing sentence, the definitions of "person" and "affiliate" shall have the meanings applicable to calculations in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the number and percentage of shares of Common Stock beneficially owned by a person and its affiliates or acquired by a person and its affiliates shall be calculated in accordance with Section 13(d) of the Exchange Act, except that the number of shares of Common Stock beneficially owned by the Buyer a person and its affiliates or acquired by the Buyer a person and its affiliates, as the case may be, affiliates shall include the number of shares of Common Stock issuable in connection with a purchase upon the exercise of Exchange Rights under this Agreement Note with respect to which the determination of such sentence is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (1i) a purchase exchange of the remaining Available Amount which has not been submitted for purchase, any unexercised Exchange Rights under this Note beneficially owned by such person and its affiliates and (2ii) exercise or conversion exchange of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, any warrants) subject to a limitation on conversion exchange or exercise analogous to the limitation contained herein beneficially owned by the Buyer such person and its affiliates. If the 4.9% limitation is ever reached the Company shall have the option to increase such limitation to 9.9% by delivery of written notice Notwithstanding anything to the Buyer. Thereaftercontrary contained herein, if each Exchange Notice shall constitute a representation by Holder that, after giving effect to such Exchange Notice, to the 9.9% limitation is ever reached best of Holder's knowledge, Holder will not beneficially own (as determined in accordance with this shall not affect or limit the Buyer's obligation to purchase the Daily Purchase Amount as otherwise provided in this Agreement. Specifically, even though the Buyer may not receive additional Section 2(E)) a number of shares of Common Stock in excess of 4.99% of the event that the 9.9% limitation is ever reached, the Buyer is still obligated to pay to the Company the Daily Purchase Amount on each Trading Day as otherwise obligated under this Agreement, e.g. no Event of Default (as defined in Section 9 hereof) has occurred, nor any event which, after notice and/or lapse of time, would become an Event of Default. Under such circumstances, the Buyer would have the right to acquire additional shares of Common Stock in the future only at such time as its ownership subsequently become less than the 9.9% limitation. For purposes of this Section, in determining the number of outstanding shares of Common Stock the Buyer may rely on the number of outstanding shares of Common Stock (1) as reflected in the Company's most recent shareholder list, which list shall be provided to Holder by the Company on a quarterly basis and certified by the Company as true, complete and accurate as of the date thereof, or (12) as reflected in the Company's most recent Form 10-Q or Form 10-K, as the case may be, (2) a or more recent public announcement press release by the Company or (3) any other written communication notice by the Company or its Transfer Agent to Holder setting forth the number of shares of Common Stock outstanding. Upon the reasonable written or oral request of the Buyer, the Company shall promptly confirm orally and in writing to the Buyer the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined but after giving effect to any purchases under exchanges of this Agreement Note (including the exchange with respect this determination is being made) by the Buyer Holder since the date as of which such number of outstanding shares of Common Stock was reported. Except as otherwise set forth herein, for purposes of this Section 1(d)(i), beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amendeddisclosed.

Limitation on Beneficial Ownership. The Company shall not effect any sale under this Agreement conversion of any Preferred Share and the Buyer no holder of any Preferred Share shall not have the right to purchase shares of Common Stock under this Agreement convert any Preferred Share pursuant to Section 2(b) to the extent that after giving effect to such purchase the Buyer conversion such Person (together with its affiliates such Person's affiliates) (A) would beneficially own in excess of 4.9% of the outstanding shares of the Common Stock following such purchase conversion and provided that the Buyer has delivered (B) would have acquired, through conversion of any Preferred Share or otherwise (including without limitation, exercise of any warrant issued pursuant to the Company notice that such purchase would cause the Buyer together with its affiliates to beneficially own Securities Purchase Agreement), in excess of 4.9% of the outstanding shares of the Common Stock following such purchaseconversion during the 60-day period ending on and including such Conversion Date (defined below). For purposes hereofof the foregoing sentence, the number of shares of Common Stock beneficially owned by the Buyer a Person and its affiliates or acquired by the Buyer a Person and its affiliates, as the case may be, shall include the number of shares of Common Stock issuable in connection with a purchase under this Agreement upon conversion of the Preferred Shares with respect to which the determination of such sentence is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (1i) a purchase conversion of the remaining Available Amount which has not been submitted for purchaseremaining, nonconverted Preferred Shares beneficially owned by such Person and its affiliates and (2ii) 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 herein beneficially owned by the Buyer such Person and its affiliates. If Except as set forth in the 4.9% limitation is ever reached preceding sentence, for purposes of this Section 2(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Company shall have the option to increase such limitation to 9.9% by delivery Securities Exchange Act of written notice 1934, as amended. Notwithstanding anything to the Buyer. Thereaftercontrary contained herein, if each Conversion Notice (defined below) shall constitute a representation by the 9.9% limitation is ever reached holder submitting such Conversion Notice that, after giving effect to such Conversion Notice, (A) the holder will not beneficially own (as determined in accordance with this shall Section 2(d)) and (B) during the 60-day period ending on and including such Conversion Date, the holder will not affect have acquired, through conversion of any Preferred Share or limit the Buyer's obligation to purchase the Daily Purchase Amount as otherwise provided in this Agreement. Specifically(including without limitation, even though the Buyer may not receive additional exercise or any Warrant), a number of shares of Common Stock in excess of 4.9% of the event that the 9.9% limitation is ever reached, the Buyer is still obligated to pay to the Company the Daily Purchase Amount on each Trading Day as otherwise obligated under this Agreement, e.g. no Event of Default (as defined in Section 9 hereof) has occurred, nor any event which, after notice and/or lapse of time, would become an Event of Default. Under such circumstances, the Buyer would have the right to acquire additional shares of Common Stock in the future only at such time as its ownership subsequently become less than the 9.9% limitation. For purposes of this Section, in determining the number of outstanding shares of Common Stock the Buyer may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company's most recent Form 10-Q or Form 10-K, as the case may be, (2) a or more recent public announcement press release or other public notice by the Company or (3) any other written communication by the Company or its Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the reasonable written or oral request of the Buyer, the Company shall promptly confirm orally and in writing to the Buyer the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined but after giving effect to conversions of any purchases under this Agreement Preferred Share by the Buyer such holder since the date as of which such number of outstanding shares of Common Stock was reported. Except as otherwise set forth herein, for purposes of this Section 1(d)(i), beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended.

Limitation on Beneficial Ownership. The Company Partnership shall not effect the conversion of any sale under this Agreement of the Series A Preferred Units held by a Series A Preferred Holder, and the Buyer such Series A Preferred Holder shall not have the right to purchase shares convert any of Common Stock under the Series A Preferred Units held by such Series A Preferred Holder pursuant to the terms and conditions of this Agreement Amendment and any such conversion shall be null and void and treated as if never made, to the extent that after giving effect to such purchase the Buyer conversion, such Series A Preferred Holder together with its affiliates the other Attribution Parties collectively would beneficially own in excess of 4.94.99% of (the outstanding shares “Maximum Percentage”) of the Common Stock following Units Outstanding immediately after giving effect to such purchase and provided that the Buyer has delivered to the Company notice that such purchase would cause the Buyer together with its affiliates to beneficially own in excess of 4.9% of the outstanding shares of the Common Stock following such purchaseconversion. For purposes hereofof the foregoing sentence, the aggregate number of shares of Common Stock Units beneficially owned by such Series A Preferred Holder and the Buyer and its affiliates or acquired by the Buyer and its affiliates, as the case may be, other Attribution Parties shall include the number of shares Common Units held by such Series A Preferred Holder and all other Attribution Parties plus the number of Common Stock Units issuable in connection with a purchase under this Agreement upon conversion of the Series A Preferred Units with respect to which the determination of such sentence is being made, but shall exclude the number of shares of Common Stock Units which would be issuable upon (1A) a purchase conversion of the remaining Available Amount which has not been submitted for purchaseremaining, nonconverted Series A Preferred Units beneficially owned by such Series A Preferred Holder or any of the other Attribution Parties and (2B) exercise or conversion of the unexercised or unconverted nonconverted portion of any other securities of the Company Partnership (including, without limitation, any convertible notes, convertible preferred Units or warrants, including the Warrants) beneficially owned by such Series A Preferred Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Buyer and its affiliates. If the 4.9% limitation is ever reached the Company shall have the option to increase such limitation to 9.9% by delivery of written notice to the Buyer. Thereafter, if the 9.9% limitation is ever reached this shall not affect or limit the Buyer's obligation to purchase the Daily Purchase Amount as otherwise provided in this Agreement. Specifically, even though the Buyer may not receive additional shares of Common Stock in the event that the 9.9% limitation is ever reached, the Buyer is still obligated to pay to the Company the Daily Purchase Amount on each Trading Day as otherwise obligated under this Agreement, e.g. no Event of Default (as defined in Section 9 hereof) has occurred, nor any event which, after notice and/or lapse of time, would become an Event of Default. Under such circumstances, the Buyer would have the right to acquire additional shares of Common Stock in the future only at such time as its ownership subsequently become less than the 9.9% limitation5.8(b)(iv). For purposes of this SectionSection 5.8(b)(iv), beneficial ownership shall be calculated in accordance with Section 13(d) of the 1934 Act. For purposes of determining the number of outstanding shares Outstanding Common Units a Series A Preferred Holder may acquire upon the conversion of Common Stock such Series A Preferred Units without exceeding the Buyer Maximum Percentage, such Series A Preferred Holder may rely on the number of outstanding shares of Outstanding Common Stock Units as reflected in (1x) the Company's Partnership’s most recent Form 10-Q or Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case may be, (2y) a more recent public announcement by the Company Partnership or (3z) any other written communication notice by the Company Partnership or its the Transfer Agent Agent, if any, setting forth the number of shares Common Units Outstanding (the “Reported Outstanding Unit Number”). If the Partnership receives a Conversion Notice from a Series A Preferred Holder at a time when the actual number of Outstanding Common Units is less than the Reported Outstanding Unit Number, the Partnership shall notify such Series A Preferred Holder in writing of the number of Common Stock outstandingUnits then Outstanding and, to the extent that such Conversion Notice would otherwise cause such Series A Preferred Holder’s beneficial ownership, as determined pursuant to this Section 5.8(b)(iv), to exceed the Maximum Percentage, such Series A Preferred Holder must notify the Partnership of a reduced number of Common Units to be purchased pursuant to such Conversion Notice. Upon For any reason at any time, upon the reasonable written or oral request of the Buyerany Series A Preferred Holder, the Company Partnership shall promptly within one (1) Business Day confirm orally and in writing or by electronic mail to the Buyer such Series A Preferred Holder the number of shares of Common Stock Units then outstandingOutstanding. In any case, the number of outstanding shares of Outstanding Common Stock Units shall be determined after giving effect to the conversion or exercise of securities of the Partnership, including such Series A Preferred Units, by such Series A Preferred Holder and any purchases under this Agreement by the Buyer other Attribution Party since the date as of which such number of outstanding shares of Common Stock the Reported Outstanding Unit Number was reported. Except In the event that the issuance of Common Units to a Series A Preferred Holder upon conversion of such Series A Preferred Units results in such Series A Preferred Holder and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of Outstanding Common Units (as otherwise set forth herein, for purposes of this Section 1(d)(i), beneficial ownership shall be determined in accordance with under Section 13(d) of the Securities Exchange Act 1934 Act), the number of 1934Units so issued by which such Series A Preferred Holder’s and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Units”) shall be deemed null and void and shall be cancelled ab initio, and such Series A Preferred Holder shall not have the power to vote or to transfer the Excess Units. Upon delivery of a written notice to the Partnership, any Series A Preferred Holder may from time to time increase (with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease the Maximum Percentage of such Series A Preferred Holder to any other percentage not in excess of 9.99% as amendedspecified in such notice; provided that (i) any such increase in the Maximum Percentage will not be effective until the sixty-first (61st) day after such notice is delivered to the Partnership and (ii) any such increase or decrease will apply only to such Series A Preferred Holder and the other Attribution Parties and not to any other Series A Preferred Holder. For purposes of clarity, the Common Units issuable to a Series A Preferred Holder pursuant to the terms of this Amendment in excess of the Maximum Percentage shall not be deemed to be beneficially owned by such Series A Preferred Holder for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the 1934 Act. No prior inability to convert such Series A Preferred Units pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of convertibility. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 5.8(b)(iv) to the extent necessary to correct this paragraph (or any portion of this paragraph) which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 5.8(b)(iv) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of such Series A Preferred Units.