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

Limitation on Issuance of Common Stock. Each Holder acknowledges and agrees that the aggregate number of shares of Common Stock that may be issued by the Company pursuant to this Agreement and the Securities may not at any time exceed the Cap Amount without the Stockholder Cap Approval and that the Company shall have no obligation to issue shares of Common Stock pursuant to this Agreement or the Securities in excess of the Cap Amount unless either (x) the Stockholder Cap Approval has been obtained or (y) the Company has obtained a written opinion from outside counsel that such approval is not required, which opinion shall be reasonably satisfactory to the Holders holding a majority of the shares of Series C Preferred Stock held by all Holders. In furtherance of the limitation set forth in the immediately preceding sentence, at any time following the Closing Date, the aggregate number of shares of Common Stock that such Holder may receive upon the conversion of such Holder’s shares of Series C Preferred Stock may not exceed the product of (A) the Cap Amount and (B) such Holder’s Pro Rata Share (the “Allocation Amount”). In the event that a Holder shall sell or otherwise transfer any of such Holder’s shares of Series C Preferred Stock, each transferee shall be allocated a pro rata portion of such transferor’s Allocation Amount. Any portion of the Allocation Amount allocated to any Holder or other Person which no longer holds any shares of Series C Preferred Stock shall be reallocated to the remaining Holders pro rata based on the number of the Registrable Securities held by such Holders at such time. In the event that, as a result of this Section 5.5, the Company is prohibited from issuing any shares of Common Stock to a Holder electing to convert its shares of Series C Preferred Stock, the Company shall, upon such Holder’s request, pay such Holder not later than two Business Days after such request an amount of cash equal to the product of (1) the number of shares of Common Stock that the Company is prohibited from issuing multiplied by (2) the VWAP (as defined in the Certificate of Designation) as of the Trading Day immediately preceding the date on which such Holder delivered the applicable conversion notice, and upon timely payment of the foregoing amount, the Company shall be deemed relieved of its obligation under the Certificate of Designation to deliver such shares of Common Stock.

Limitation on Issuance of Common Stock. Each Holder acknowledges and agrees that (a) Notwithstanding anything to the contrary in the Indenture, unless the Company shall have received the shareholder approval described in Section 10.27(c), the Company shall not issue any shares of Common Stock pursuant to the Indenture (such shares, “Indenture Shares”) if, after giving effect to such issuance, the sum of (i) the aggregate number of Indenture Shares issued pursuant to the Indenture (after adjusting any previous issuances for any subsequent events that would give rise to an adjustment to the Conversion Rate pursuant to this Article 10) plus, if applicable, (ii) the number of shares of Common Stock that may be issued by in the Company pursuant to this Agreement and Exchange Transactions minus, if applicable, (iii) the Securities may not at any time exceed the Cap Amount without the Stockholder Cap Approval and that the Company shall have no obligation to issue shares product of Common Stock pursuant to this Agreement or the Securities in excess of the Cap Amount unless either (x) the Stockholder Cap Approval each share of Preferred Stock that has been obtained exchanged in the Exchange Transactions through the date of calculation for cancellation as consideration for issuances of Indenture Shares or Common Stock multiplied by (y) the Company has obtained a written opinion from outside counsel that conversion rate for such approval is not required, which opinion shall be reasonably satisfactory to share of Preferred Stock in effect on the Holders holding a majority date of the shares Exchange Agreement pursuant to which such share of Series C Preferred Stock held by all Holders. In furtherance was exchanged, would exceed the “Maximum Shares” as calculated at the time of the limitation set forth in proposed issuance by the immediately preceding sentencefollowing formula: where, at any time following MS =the Closing Date, Maximum Shares; and OS =the aggregate number of shares of Common Stock that such Holder may receive upon the conversion of such Holder’s shares of Series C Preferred Stock may not exceed the product of (A) the Cap Amount and (B) such Holder’s Pro Rata Share (the “Allocation Amount”). In the outstanding on August 29, 2012, as appropriately adjusted for any subsequent event that a Holder shall sell or otherwise transfer any of such Holder’s shares of Series C Preferred Stock, each transferee shall be allocated a pro rata portion of such transferor’s Allocation Amount. Any portion of the Allocation Amount allocated to any Holder or other Person which no longer holds any shares of Series C Preferred Stock shall be reallocated to the remaining Holders pro rata based on the number of the Registrable Securities held by such Holders at such time. In the event that, as a result of this Section 5.5, the Company is prohibited from issuing any shares of Common Stock would give rise to a Holder electing change in the Conversion Rate pursuant to convert its shares this Article 10. (b) If Indenture Shares otherwise issuable under the Indenture would, if issued, result in aggregate issuances of Series C Preferred StockIndenture Shares exceeding the Maximum Shares as contemplated in Section 10.27(a), the Company shall, upon in lieu of issuing such Holdershares of Common Stock, satisfy its obligation by a cash payment, to the extent permitted under the Company’s requestthen outstanding credit facility or credit facilities, pay such Holder not later than two Business Days after such request in an amount of cash equal to the product of (1i) the number of shares of Common Stock that the Company is prohibited from issuing unable to issue pursuant to Section 10.27(a) multiplied by (2ii) the VWAP (as defined Five-Day VWAP. In the event that any such cash payment is not permitted under the Company’s then outstanding credit facility or credit facilities, Holders shall not be entitled to receive any consideration in the Certificate of Designation) as lieu of the Trading Day immediately preceding the date on which such Holder delivered the applicable conversion notice, and upon timely payment of the foregoing amount, the Company shall be deemed relieved of its obligation under the Certificate of Designation to deliver such shares of Common StockStock that it cannot issue pursuant to Section 10.27(a). (c) The restrictions of Section 10.27(a) shall automatically terminate if and when the shareholders of the Company duly approve the issuance of shares of Common Stock under the Indenture in excess of the Maximum Shares for purposes of Section 312.03 of the New York Stock Exchange Listed Company Manual or any comparable rule of any other principal exchange on which the Common Stock is then traded.

Limitation on Issuance of Common Stock. Each Holder acknowledges and agrees that Notwithstanding anything to the aggregate contrary contained herein or in the Offering Document, the Company shall not: (i) Issue any of the Transaction Shares, or (ii) adjust the number of Warrant Shares in accordance with the terms of the Warrants, if such issuance or adjustment would, either individually or together with other one or more other issuances or adjustments, cause the issuance of shares of Common Stock that may be issued by the Company pursuant to this Agreement and the Securities may not at any time exceed the Cap Amount without the Stockholder Cap Approval and number of shares that the Company shall have no obligation to could then issue shares of Common Stock pursuant to this Agreement or the Securities in excess compliance with Section 4350(i) of the Cap Amount unless either rules and regulations of Nasdaq (xthe “Nasdaq Rules”) or any successor rule or regulation. Under Section 4350(i) of the Stockholder Cap Approval has been obtained Nasdaq Rules, a company may not issue shares, and may not issue securities convertible into shares, where the shares issued could in the aggregate equal 20% or (y) more of the Company has obtained a written opinion from outside counsel that such approval is not required, which opinion shall be reasonably satisfactory to the Holders holding a majority voting power of the shares outstanding, without obtaining shareholder approval. The foregoing limitation shall only apply until such time as the Company obtains the requisite approval of Series C Preferred Stock held by all Holders. In furtherance its shareholders for the issuance of the limitation set forth Transaction Shares, as required by Section 4350(i) of the Nasdaq Rules or any successor rule or regulation. The Company covenants and agrees that it shall include a proposal for the approval of the issuance of the Transaction Shares in the immediately preceding sentenceCompany’s proxy statement for its 2004 annual meeting of shareholders, at any time following which the Closing DateCompany currently anticipates shall take place in June 2004. If, due to the foregoing limitation, the aggregate number Company cannot adjust the Warrant Shares as provided in Section 8.3 of the Warrant, then, subject to NASD approval, the Company agrees that the exercise price thereof shall be reduced to equal the Issuance Price(s) of the shares of Common Stock that such Holder may receive upon triggered the conversion adjustment pursuant to Section 8.3 of such Holder’s shares of Series C Preferred Stock may not exceed the product of Warrant. (Ab) the Cap Amount and (B) such Holder’s Pro Rata Share (the “Allocation Amount”). In the event that a Holder shall sell or otherwise transfer Issue any of the Transaction Shares, if such Holder’s shares of Series C Preferred Stock, each transferee shall be allocated a pro rata portion of such transferor’s Allocation Amount. Any portion issuance would violate the securities laws of the Allocation Amount allocated to jurisdiction in which any Holder or other Person which no longer holds any shares of Series C Preferred Stock shall be reallocated to the remaining Holders pro rata based on the number of the Registrable Securities held by such Holders at such time. In the event that, as a result of this Section 5.5, the Company is prohibited from issuing any shares of Common Stock to a Holder electing to convert its shares of Series C Preferred Stock, the Company shall, upon such Holder’s request, pay such Holder not later than two Business Days after such request an amount of cash equal to the product of (1) the number of shares of Common Stock that the Company is prohibited from issuing multiplied by (2) the VWAP (as defined in the Certificate of Designation) as of the Trading Day immediately preceding the date on which such Holder delivered the applicable conversion notice, and upon timely payment of the foregoing amount, the Company shall be deemed relieved of its obligation under the Certificate of Designation to deliver Purchaser receiving such shares of Common Stockis located.

Limitation on Issuance of Common Stock. Each Holder acknowledges and agrees that the aggregate number of shares of Common Stock that may be issued by the Company pursuant to this Agreement and the Securities may not at any time exceed the Cap Amount without the Stockholder Cap Approval and that the Company shall have no obligation to issue shares of Common Stock pursuant to this Agreement or the Securities in excess of the Cap Amount unless either (x) the Stockholder Cap Approval has been obtained or (y) the Company has obtained a written opinion from outside counsel that such approval is not required, which opinion shall be reasonably satisfactory to the Holders holding a majority of the shares of Series C A Preferred Stock held by all Holders. In furtherance of the limitation set forth in the immediately preceding sentence, at any time following the Closing Date, the aggregate number of shares of Common Stock that such Holder may receive upon the conversion of such Holder’s shares of Series C A Preferred Stock may not exceed the product of (A) the Cap Amount and (B) such Holder’s Pro Rata Share (the “Allocation Amount”). In the event that a Holder shall sell or otherwise transfer any of such Holder’s shares of Series C A Preferred Stock, each transferee shall be allocated a pro rata portion of such transferor’s Allocation Amount. Any portion of the Allocation Amount allocated to any Holder or other Person which no longer holds any shares of Series C A Preferred Stock shall be reallocated to the remaining Holders pro rata based on the number of the Registrable Securities held by such Holders at such time. In the event that, as a result of this Section 5.5, the Company is prohibited from issuing any shares of Common Stock to a Holder electing to convert its shares of Series C A Preferred Stock, the Company shall, upon such Holder’s request, pay such Holder not later than two Business Days after such request an amount of cash equal to the product of (1) the number of shares of Common Stock that the Company is prohibited from issuing multiplied by (2) the VWAP (as defined in the Certificate of Designation) as of the Trading Day immediately preceding the date on which such Holder delivered the applicable conversion notice, and upon timely payment of the foregoing amount, the Company shall be deemed relieved of its obligation under the Certificate of Designation to deliver such shares of Common Stock.