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.