Common use of Limitation on Conversion Clause in Contracts

Limitation on Conversion. Notwithstanding anything in this Certificate of Designations to the contrary, unless and until the Requisite Stockholder Approval (to the extent and only to the extent required under the listing rules of NASDAQ) is obtained, the Holders shall not have the right to acquire shares of Series B-1 Preferred Stock issuable upon conversion of the Series B-2 Preferred Stock, and the Company shall not be required to issue shares of Series B-1 Preferred Stock issuable upon conversion of the Series B-2 Preferred Stock, in excess of the Share Cap (the “Conversion Restriction”). Any purported delivery of shares of Series B-1 Preferred Stock upon conversion of any Series B-2 Preferred Stock will be void and have no effect to the extent, and only to the extent, that such delivery would result in issuance of shares of Series B-1 Preferred in excess of the Share Cap in violation of the listing rules of Nasdaq. Notwithstanding the foregoing, for any conversion following the six-month anniversary of the Original Issuance Date, in the case of a conversion pursuant to Section 6, Section 7 or this Section 8, the Holder or the Company, as applicable, may request a conversion of a number of shares of Series B-2 Preferred Stock that would result in the issuance of shares that, but for the Conversion Restriction, would exceed the Share Cap; provided, that, in lieu of any shares of Series B-1 Preferred Stock otherwise deliverable upon conversion that would, but for the Conversion Restriction, exceed the Share Cap, the Company shall instead deliver to the requisite Holder an amount of cash per share of such Series B-1 Preferred Stock equal to the product of (x) the VWAP per share of Class A Common Stock on the Trading Day immediately preceding the Conversion Date, multiplied by (y) the Series B-1 Preferred Conversion Rate as in effect on such Trading Day (such payment, a “Cash Payment”), payable within not more than thirty (30) days following the applicable Conversion Date (such date, the “Cash Payment Deadline”); provided, however, that the Holder may not request the conversion of shares in excess of the Share Cap prior to the earlier to occur of (A) the Restricted Period Termination Date (as such term is defined in the Investment Agreement) and (B) if any, a Restricted Period Early Termination Event (as such term is defined in the Investment Agreement) following which the transfer restrictions in Section 5.3(a) of the Investment Agreement are not applicable to 100% of the Prohibited Shares (as such term is defined in the Investment Agreement) (following which the Holder may request conversion of shares that would, but for the Conversion Restriction, exceed the Share Cap, which shall be treated in accordance with the forgoing proviso); provided, further, that, for any conversion that would, but for the Conversion Restriction, exceed the Share Cap that is in connection with a Change of Control, in lieu of the price per share payable in accordance with the foregoing, the Company shall instead deliver to the requisite Holder, at the same time as such consideration is delivered to the holders of Class A Common Stock, the consideration received by the holders of Class A Common Stock in respect of each share of Class A Common Stock issuable upon conversion of all of the Preferred Conversion Shares in excess of the Share Cap, and if such payment is in violation of the Nasdaq listing rules applicable to the Company, the Company shall instead deliver to the Holder converting shares in excess of the Share Cap that would be in violation of the Nasdaq listing rules cash in an amount equal to the Fair Market Value of such consideration.

Limitation on Conversion. Notwithstanding anything in this Certificate of Designations herein to the contrary, unless and until prior to the Requisite receipt of the Stockholder Approval (Approval, the Warrants Beneficially Owned by any such holder of Warrants or its Affiliates may not be converted pursuant to this Section 2 to the extent that after giving effect to such conversion, such holder and only to its Affiliates would Beneficially Own, in the extent required under the listing rules of NASDAQ) is obtained, the Holders shall not have the right to acquire shares of Series B-1 Preferred Stock issuable upon conversion of the Series B-2 Preferred Stock, and the Company shall not be required to issue shares of Series B-1 Preferred Stock issuable upon conversion of the Series B-2 Preferred Stockaggregate, in excess of 19.99% of the Share Cap shares of Common Stock outstanding immediately after giving effect to such conversion (the “Conversion RestrictionCap”). Any purported delivery of shares of Series B-1 Preferred Stock upon conversion of any Series B-2 Preferred Stock will be void and have no effect to the extent, and only to the extent, that such delivery would result in issuance of shares of Series B-1 Preferred in excess of the Share Cap in violation of the listing rules of Nasdaq. Notwithstanding the foregoing, for any conversion following the six-month anniversary of the Original Issuance Date, in the case of a conversion pursuant to Section 6, Section 7 or this Section 8, the Holder or the Company, as applicable, may request a conversion of a number of shares of Series B-2 Preferred Stock that would result in the issuance of shares that, but for the Conversion Restriction, would exceed the Share Cap; provided, that, in lieu of any shares of Series B-1 Preferred Stock otherwise deliverable upon conversion that would, but for the Conversion Restriction, exceed the Share Cap, the Company shall instead deliver to the requisite Holder an amount of cash per share of such Series B-1 Preferred Stock equal to the product of (x) the VWAP per share of Class A Common Stock on the Trading Day immediately preceding the Conversion Date, multiplied by (y) the Series B-1 Preferred Conversion Rate as in effect on such Trading Day (such payment, a “Cash Payment”), payable within not more than thirty (30) days following the applicable Conversion Date (such date, the “Cash Payment Deadline”); provided, however, that the Holder may not request the conversion of shares in excess of the Share Cap prior to the earlier to occur of (A) the Restricted Period Termination Date (as such term is defined in the Investment Agreement) and (B) if any, a Restricted Period Early Termination Event (as such term is defined in the Investment Agreement) following which the transfer restrictions in Section 5.3(a) of the Investment Agreement are not applicable to 100% of the Prohibited Shares (as such term is defined in the Investment Agreement) (following which the Holder may request conversion of shares that would, but for the Conversion Restriction, exceed the Share Cap, which shall be treated in accordance with the forgoing proviso); provided, further, that, that for any conversion that would, but for purposes of determining the Conversion RestrictionCap pursuant to any provision of this Agreement, exceed the Share Cap aggregate number of shares of Common Stock Beneficially Owned by a holder of Warrants or any of its respective Affiliates shall include (i) the number of shares of Common Stock Beneficially Owned by such holder or any of its respective Affiliates as a result of prior conversion of Convertible Preferred Stock or Warrants (excluding shares of Common Stock that is in connection with a Change of Control, in lieu could be acquired upon conversion of the price per share payable in accordance with such Convertible Preferred Stock or Warrants) plus (ii) the foregoing, the Company shall instead deliver to the requisite Holder, at the same time as such consideration is delivered to the holders number of Class A Common Stock, the consideration received by the holders shares of Class A Common Stock in respect of each share of Class A Common Stock issuable upon the conversion of all the Warrants with respect to which the determination of the Preferred Conversion Shares in excess immediately preceding proviso is being made. Notwithstanding anything herein to the contrary, (x) if the first vote of the Share Cap, and if such payment is in violation stockholders of the Nasdaq listing rules applicable Company with respect to the CompanyStockholder Approval occurs within six months of the date hereof, then no Warrants may be converted into Common Stock until the earlier of (1) the receipt of the Stockholder Approval and (2) the date that is six months after the date hereof and (y) if the first vote of the stockholders of the Company shall instead deliver with respect to the Holder converting shares in excess Stockholder Approval occurs after the date that is six months after of the Share Cap that would be in violation date hereof, then prior to the occurrence of the Nasdaq listing rules cash in an amount equal first vote of the stockholders of the Company with respect to the Fair Market Value of such considerationStockholder Approval, no Warrants may be converted into Common Stock.

Limitation on Conversion. Notwithstanding anything in Until the date on which the Company has obtained the Stockholder Approvals, each Purchaser agrees that such Purchaser and its transferees of Securities permitted under this Certificate of Designations Agreement (“Permitted Transferees”) will not convert or seek to the contrary, unless and until the Requisite Stockholder Approval (to the extent and only to the extent required under the listing rules of NASDAQ) is obtained, the Holders shall not have the right to acquire shares of Series B-1 Preferred Stock issuable upon conversion of the Series B-2 Preferred Stockconvert, and the Company shall not will be required permitted to issue restrict the conversion of, shares of Series B-1 A-1 Preferred held by such Purchaser, including any Permitted Transferees, to the extent such conversion would result in such Purchaser receiving shares of Common Stock issuable upon conversion of the Series B-2 Preferred Stock, in excess of the Share Cap product obtained by multiplying (A) the “Conversion Restriction”). Any purported delivery of shares of Series B-1 Preferred Stock upon conversion of any Series B-2 Preferred Stock will be void and have no effect to quotient obtained by dividing (i) the extent, and only to the extent, that such delivery would result in issuance of shares of Series B-1 Preferred in excess of the Share Cap in violation of the listing rules of Nasdaq. Notwithstanding the foregoing, for any conversion following the six-month anniversary of the Original Issuance Date, in the case of a conversion pursuant to Section 6, Section 7 or this Section 8, the Holder or the Company, as applicable, may request a conversion of a number of shares of Series B-2 A-1 Preferred Stock that purchased by such Purchaser (including shares transferred to Permitted Transferees) pursuant to this Agreement by (ii) the total number of shares of Series A-1 Preferred issued by the Company pursuant to this Agreement by (B) the greater of 90,000,000 and the Excess Authorized Shares Threshold (as defined in Annex I of the Series A-1 Certificate of Designation). By way of example, assuming the WP Purchasers purchase 80% of the shares of Series A-1 Preferred issued pursuant to this Agreement, until the date on which the Company has obtained the Stockholder Approvals the WP Purchasers could not in the aggregate convert shares of Series A-1 Preferred if such conversion would result in the issuance WP Purchasers being issued more than 72,000,000 shares of shares thatCommon Stock in the aggregate upon conversion thereof. For the avoidance of doubt, but for the Conversion Restriction, would exceed limitation contained in this Section 5.23 shall not limit the Share Cap; provided, that, ability of the Required Holders (as defined in lieu Annex I of any the Series A-1 Certificate of Designation) to mandatorily convert shares of Series B-1 A-1 Preferred Stock otherwise deliverable upon conversion that would, but for the Conversion Restriction, exceed the Share Cap, the Company shall instead deliver pursuant to the requisite Holder an amount Section 7(b) of cash per share Annex I of such Series B-1 Preferred Stock equal to the product of (x) the VWAP per share of Class A Common Stock on the Trading Day immediately preceding the Conversion Date, multiplied by (y) the Series B-1 Preferred Conversion Rate as in effect on such Trading Day (such payment, a “Cash Payment”), payable within not more than thirty (30) days following the applicable Conversion Date (such date, the “Cash Payment Deadline”); provided, however, that the Holder may not request the conversion A-1 Certificate of shares in excess of the Share Cap prior to the earlier to occur of (A) the Restricted Period Termination Date (as such term is defined in the Investment Agreement) and (B) if any, a Restricted Period Early Termination Event (as such term is defined in the Investment Agreement) following which the transfer restrictions in Section 5.3(a) of the Investment Agreement are not applicable to 100% of the Prohibited Shares (as such term is defined in the Investment Agreement) (following which the Holder may request conversion of shares that would, but for the Conversion Restriction, exceed the Share Cap, which shall be treated in accordance with the forgoing proviso); provided, further, that, for any conversion that would, but for the Conversion Restriction, exceed the Share Cap that is in connection with a Change of Control, in lieu of the price per share payable in accordance with the foregoing, the Company shall instead deliver to the requisite Holder, at the same time as such consideration is delivered to the holders of Class A Common Stock, the consideration received by the holders of Class A Common Stock in respect of each share of Class A Common Stock issuable upon conversion of all of the Preferred Conversion Shares in excess of the Share Cap, and if such payment is in violation of the Nasdaq listing rules applicable to the Company, the Company shall instead deliver to the Holder converting shares in excess of the Share Cap that would be in violation of the Nasdaq listing rules cash in an amount equal to the Fair Market Value of such considerationDesignation.

Limitation on Conversion. Notwithstanding anything in this Certificate Able shall not be entitled to convert or exercise any security of Designations to the contraryRxBazaar convertible into or exercisable for shares of RxBazaar Common Stock, including without limitation any options, warrants, Notes or Series A Preferred Stock ("RxBazaar Convertible Securities"), unless and until such time as it beneficially owns (as determined in accordance with Section 13(d) of the Requisite Stockholder Approval (Securities Exchange Act and the rules thereunder) less than 4.9% of the then issued and outstanding shares of RxBazaar Common Stock, and thereafter Able shall not be entitled to convert or exercise any RxBazaar Convertible Securities if and to the extent that such conversion or exercise would result in Able beneficially owning (as determined in accordance with Section 13(d) of the Securities Exchange Act and only to the extent required under rules thereunder) in excess of 4.9% of the listing rules of NASDAQ) is obtained, the Holders shall not have the right to acquire then issued and outstanding shares of Series B-1 Preferred Stock RxBazaar Common Stock, including shares issuable upon conversion or exercise of such RxBazaar Convertible Securities held by Able after application of this Paragraph. Nothing contained herein shall be deemed to restrict the Series B-2 Preferred Stockright of Able to convert or exercise any RxBazaar Convertible Securities at such time as such conversion will not violate the provisions of this Paragraph. The provisions of this Paragraph may be waived by Able upon not less than 75 days prior written notice to RxBazaar, and whereupon the Company provisions of this Paragraph shall not continue to apply until such 75th day (or such later date as may be required to issue shares stated in the notice of Series B-1 Preferred Stock issuable upon conversion of the Series B-2 Preferred Stock, in excess of the Share Cap (the “Conversion Restriction”waiver). Any purported delivery of shares of Series B-1 Preferred Stock upon If Able should deliver an exercise or conversion of any Series B-2 Preferred Stock will be void and have no effect to the extent, and only to the extent, that such delivery would result in issuance of shares of Series B-1 Preferred in excess of the Share Cap in violation of the listing rules of Nasdaq. Notwithstanding the foregoing, notice for any conversion following the six-month anniversary of the Original Issuance Date, in the case of a conversion pursuant to Section 6, Section 7 or this Section 8, the Holder or the Company, as applicable, may request a conversion of a number of shares of Series B-2 Preferred Stock RxBazaar Convertible Securities that would result in the issuance of shares that, but for the Conversion Restriction, would exceed the Share Cap; provided, that, in lieu of any shares of Series B-1 Preferred Stock otherwise deliverable upon conversion that would, but for the Conversion Restriction, exceed the Share Cap, the Company shall instead deliver to the requisite Holder an amount of cash per share of such Series B-1 Preferred Stock equal to the product of (x) the VWAP per share of Class A Common Stock on the Trading Day immediately preceding the Conversion Date, multiplied by (y) the Series B-1 Preferred Conversion Rate as in effect on such Trading Day (such payment, a “Cash Payment”), payable within not more than thirty (30) days following the applicable Conversion Date (such date, the “Cash Payment Deadline”); provided, however, that the Holder may not request the conversion of shares securities in excess of the Share Cap prior to amount permitted hereunder, RxBazaar shall notify Able of this fact, and shall honor the earlier to occur of (A) conversion for the Restricted Period Termination Date (as such term is defined in the Investment Agreement) and (B) if any, a Restricted Period Early Termination Event (as such term is defined in the Investment Agreement) following which the transfer restrictions in Section 5.3(a) of the Investment Agreement are not applicable to 100% of the Prohibited Shares (as such term is defined in the Investment Agreement) (following which the Holder may request conversion maximum number of shares that would, but for the Conversion Restriction, exceed the Share Cap, which shall of such convertible security permitted to be treated converted on such date in accordance with the forgoing proviso); provided, further, that, for any conversion that would, but for terms of this Agreement and return the Conversion Restriction, exceed the Share Cap that is in connection with a Change of Control, in lieu of the price per share payable in accordance with the foregoing, the Company shall instead deliver excess RxBazaar Convertible Securities to the requisite Holder, at the same time as such consideration is delivered to the holders of Class A Common Stock, the consideration received by the holders of Class A Common Stock in respect of each share of Class A Common Stock issuable upon conversion of all of the Preferred Conversion Shares in excess of the Share Cap, and if such payment is in violation of the Nasdaq listing rules applicable to the Company, the Company shall instead deliver to the Holder converting shares in excess of the Share Cap that would be in violation of the Nasdaq listing rules cash in an amount equal to the Fair Market Value of such considerationAble.

Limitation on Conversion. Notwithstanding anything in this Certificate Until the date on which the Company has obtained the Stockholder Approval, each Purchaser agrees that such Purchaser and its transferees of Designations to the contrary, unless and until the Requisite Stockholder Approval (to the extent and only to the extent required Securities permitted under the listing rules of NASDAQ2010 Investment Agreement (“Permitted Transferees”) is obtained, the Holders shall will not have the right convert or seek to acquire shares of Series B-1 Preferred Stock issuable upon conversion of the Series B-2 Preferred Stockconvert, and the Company shall not will be required permitted to issue restrict the conversion of, shares of Series B-1 A-3 Preferred held by such Purchaser, including any Permitted Transferees, to the extent such conversion would result in such Purchaser receiving shares of Common Stock issuable upon conversion of the Series B-2 Preferred Stock, in excess of the Share Cap product obtained by multiplying (A) the “Conversion Restriction”). Any purported delivery of shares of Series B-1 Preferred Stock upon conversion of any Series B-2 Preferred Stock will be void and have no effect to quotient obtained by dividing (i) the extent, and only to the extent, that such delivery would result in issuance of shares of Series B-1 Preferred in excess of the Share Cap in violation of the listing rules of Nasdaq. Notwithstanding the foregoing, for any conversion following the six-month anniversary of the Original Issuance Date, in the case of a conversion pursuant to Section 6, Section 7 or this Section 8, the Holder or the Company, as applicable, may request a conversion of a number of shares of Series B-2 A-3 Preferred Stock that purchased by such Purchaser (including shares transferred to Permitted Transferees) pursuant to this Agreement by (ii) the total number of shares of Series A-3 Preferred issued by the Company pursuant to this Agreement by (B) the greater of 105,000,000 and the Excess Authorized Shares Threshold (as defined in Annex I of the Series A-3 Certificate of Designation). By way of example, assuming the WP Purchasers purchase 80% of the shares of Series A-3 Preferred issued pursuant to this Agreement, until the date on which the Company has obtained the Stockholder Approval the WP Purchasers could not in the aggregate convert shares of Series A-3 Preferred if such conversion would result in the issuance WP Purchasers being issued more than 84,000,000 shares of shares thatCommon Stock in the aggregate upon conversion thereof. For the avoidance of doubt, but for the Conversion Restriction, would exceed limitation contained in this Section 5.12 shall not limit the Share Cap; provided, that, ability of the Required Holders (as defined in lieu Annex I of any the Series A-3 Certificate of Designation) to mandatorily convert shares of Series B-1 A-3 Preferred Stock otherwise deliverable upon conversion that would, but for the Conversion Restriction, exceed the Share Cap, the Company shall instead deliver pursuant to the requisite Holder an amount Section 7(b) of cash per share Annex I of such Series B-1 Preferred Stock equal to the product of (x) the VWAP per share of Class A Common Stock on the Trading Day immediately preceding the Conversion Date, multiplied by (y) the Series B-1 Preferred Conversion Rate as in effect on such Trading Day (such payment, a “Cash Payment”), payable within not more than thirty (30) days following the applicable Conversion Date (such date, the “Cash Payment Deadline”); provided, however, that the Holder may not request the conversion A-3 Certificate of shares in excess of the Share Cap prior to the earlier to occur of (A) the Restricted Period Termination Date (as such term is defined in the Investment Agreement) and (B) if any, a Restricted Period Early Termination Event (as such term is defined in the Investment Agreement) following which the transfer restrictions in Section 5.3(a) of the Investment Agreement are not applicable to 100% of the Prohibited Shares (as such term is defined in the Investment Agreement) (following which the Holder may request conversion of shares that would, but for the Conversion Restriction, exceed the Share Cap, which shall be treated in accordance with the forgoing proviso); provided, further, that, for any conversion that would, but for the Conversion Restriction, exceed the Share Cap that is in connection with a Change of Control, in lieu of the price per share payable in accordance with the foregoing, the Company shall instead deliver to the requisite Holder, at the same time as such consideration is delivered to the holders of Class A Common Stock, the consideration received by the holders of Class A Common Stock in respect of each share of Class A Common Stock issuable upon conversion of all of the Preferred Conversion Shares in excess of the Share Cap, and if such payment is in violation of the Nasdaq listing rules applicable to the Company, the Company shall instead deliver to the Holder converting shares in excess of the Share Cap that would be in violation of the Nasdaq listing rules cash in an amount equal to the Fair Market Value of such considerationDesignation.

Limitation on Conversion. Notwithstanding anything in this Certificate of Designations to the contrarycontrary set forth herein, unless and until the Requisite Stockholder Approval (to the extent and only to the extent required under the listing rules of NASDAQas defined below) is has been obtained, the Holders Company shall not have the right to acquire issue in excess of an aggregate of 2,451,280 shares of Series B-1 Preferred Common Stock issuable upon conversion of the Series B-2 Preferred StockNotes and exercise of Warrants, subject to adjustment upon any Change of Shares (such number of shares, as the same may be adjusted, the “Issuable Maximum”). The Issuable Maximum equals approximately 19.9% of the number of shares of Common Stock outstanding immediately prior to the first issuance of any Notes. If on any Conversion Date (A) the Conversion Price then in effect is such that the aggregate number of shares of Common Stock previously issued upon conversion of a converting Registered Holder’s Notes and exercise of Warrants issued in respect of such Notes (the “Converting Holder’s Previous Shares”), together with the shares of Common Stock into which such Registered Holder requests conversion of Notes pursuant to Section 3(b), would equal or exceed such Registered Holder’s pro rata share (calculated based on the portion of $5,000,000 represented by the principal amount outstanding of such Notes) of the Issuable Maximum (the “Converting Holder’s Maximum”), and (B) the Company shall not have previously obtained the vote of stockholders (the “Stockholder Approval”), if any, as may be required by the applicable rules and regulations of the American Stock Exchange (or any successor entity or any other Stock Market on which the Common Stock is then listed or quoted) applicable to issue approve the issuance of shares of Series B-1 Preferred Common Stock issuable upon conversion of the Series B-2 Preferred Stock, in excess of the Share Cap (the “Conversion Restriction”). Any purported delivery of shares of Series B-1 Preferred Stock upon conversion of any Series B-2 Preferred Stock will be void and have no effect Issuable Maximum pursuant to the extentterms hereof, and then the converting Registered Holder’s request for conversion shall be deemed a request to convert only to the extent, that such delivery would result in issuance of shares of Series B-1 Preferred in excess portion of the Share Cap in violation of the listing rules of Nasdaq. Notwithstanding the foregoing, Notes surrendered for any conversion following the six-month anniversary of the Original Issuance Date, in the case of a conversion pursuant to Section 6, Section 7 or this Section 8, the Holder or the Company, as applicable, may request a conversion of that is convertible into a number of shares of Series B-2 Preferred Common Stock that would result in equal to the issuance positive excess of shares thatthe Converting Holder’s Maximum above the Converting Holder’s Previous Shares and, but with respect to the remainder of Notes such Registered Holder surrendered for conversion (the Conversion Restriction, would exceed the Share Cap; provided, that, in lieu of any shares of Series B-1 Preferred Stock otherwise deliverable upon conversion that would, but for the Conversion Restriction, exceed the Share Cap“Excess Notes”), the Company shall instead deliver to such Registered Holder a new Note representing the requisite Holder an amount of cash per share of such Series B-1 Preferred Stock equal to the product of (x) the VWAP per share of Class A Common Stock on the Trading Day immediately preceding the Conversion Date, multiplied by (y) the Series B-1 Preferred Conversion Rate as in effect on such Trading Day (such payment, a “Cash Payment”), payable within not more than thirty (30) days following the applicable Conversion Date (such date, the “Cash Payment Deadline”); provided, however, that the Holder may not request the conversion of shares in excess of the Share Cap prior to the earlier to occur of (A) the Restricted Period Termination Date (as such term is defined in the Investment Agreement) and (B) if any, a Restricted Period Early Termination Event (as such term is defined in the Investment Agreement) following which the transfer restrictions in Section 5.3(a) of the Investment Agreement are not applicable to 100% of the Prohibited Shares (as such term is defined in the Investment Agreement) (following which the Holder may request conversion of shares that would, but for the Conversion Restriction, exceed the Share Cap, which shall be treated in accordance with the forgoing proviso); provided, further, that, for any conversion that would, but for the Conversion Restriction, exceed the Share Cap that is in connection with a Change of Control, in lieu of the price per share payable in accordance with the foregoing, the Company shall instead deliver to the requisite Holder, at the same time as such consideration is delivered to the holders of Class A Common Stock, the consideration received by the holders of Class A Common Stock in respect of each share of Class A Common Stock issuable upon conversion of all of the Preferred Conversion Shares in excess of the Share Cap, and if such payment is in violation of the Nasdaq listing rules applicable to the Company, the Company shall instead deliver to the Holder converting shares in excess of the Share Cap that would be in violation of the Nasdaq listing rules cash in an amount equal to the Fair Market Value of such considerationExcess Notes.

Limitation on Conversion. Notwithstanding anything in this Certificate of Designations to the contrary, unless and until the Requisite Stockholder Approval (to the extent and only to the extent required under the listing rules of NASDAQ) is obtained, the Holders shall not have the right to acquire shares of Series B-1 Preferred Common Stock issuable upon conversion of the Series B-2 A Preferred Stock, and the Company shall not be required to issue shares of Series B-1 Preferred Common Stock issuable upon conversion of the Series B-2 A Preferred Stock, in excess of the Share Cap (the “Conversion Restriction”). Any purported delivery of shares of Series B-1 Preferred Common Stock upon conversion of any Series B-2 A Preferred Stock will be void and have no effect to the extent, and only to the extent, that such delivery would result in issuance of shares of Series B-1 Preferred Common Stock in excess of the Share Cap in violation of the listing rules of Nasdaq. Notwithstanding the foregoing, for any conversion following the six-month anniversary of the Original Issuance Date, in the case of a conversion pursuant to Section 6, Section 7 or this Section 8, the Holder or the Company, as applicable, may request a conversion of a number of shares of Series B-2 A Preferred Stock that would result in the issuance of shares that, but for the Conversion Conversation Restriction, would exceed the Share Cap; provided, that, in lieu of any shares of Series B-1 Preferred Class A Common Stock otherwise deliverable upon conversion that would, but for the Conversion Restriction, exceed the Share Cap, the Company shall instead deliver to the requisite Holder an amount of cash per share of such Series B-1 Preferred Class A Common Stock equal to the product of (x) the VWAP per share of Class A Common Stock on the Trading Day immediately preceding the Conversion Date, multiplied by (y) the Series B-1 Preferred Conversion Rate as in effect on such Trading Day Date (such payment, a “Cash Payment”), payable within not more than thirty (30) days following the applicable Conversion Date (such date, the “Cash Payment Deadline”); provided, however, that the Holder may not request the conversion of shares in excess of the Share Cap prior to the earlier to occur of (A) the Restricted Period Termination Date (as such term is defined in the Investment Agreement) and (B) if any, a Restricted Period Early Termination Event (as such term is defined in the Investment Agreement) following which the transfer restrictions in Section 5.3(a) of the Investment Agreement are not applicable to 100% of the Prohibited Shares (as such term is defined in the Investment Agreement) (following which the Holder may request conversion of shares that would, but for the Conversion Restriction, exceed the Share Cap, Cap which shall be treated in accordance with the forgoing proviso); provided, further, that, for any conversion that would, but for the Conversion Conversation Restriction, exceed the Share Cap that is in connection with a Change of Control, in lieu of the purchase price per share payable in accordance with the foregoing, the Company shall instead deliver to the requisite Holder, at the same time as such consideration is delivered to the holders of Class A Common Stock, the consideration received by the holders of Class A Common Stock in respect of each share of Class A Common Stock issuable upon conversion of all of the Preferred Conversion Shares in excess of the Share Capthereof, and if such payment is in violation of the Nasdaq listing rules applicable to the Company, the Company shall instead deliver to the Holder converting shares in excess of the Share Cap that would be in violation of the Nasdaq listing rules cash in an amount equal to the Fair Market Value of such consideration.