Limitations on Conversion. Notwithstanding anything to the contrary contained herein, this Note shall not be convertible by a holder to the extent (but only to the extent) that the holder or any of its affiliates would beneficially own in excess of 9.99% (the “Maximum Percentage”) of the common stock of the Borrower. To the extent the above limitation applies, the determination of whether the Note shall be convertible (vis-à-vis other convertible securities owned by the holder or any of its affiliates) and of which such securities shall be convertible (as among all such securities owned by the holder) shall, subject to such Maximum Percentage limitation, be determined on the basis of the first submission to the corporation for conversion. No prior inability to convert the Note 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. For the purposes of this paragraph, beneficial ownership and all determinations and calculations (including, without limitation, with respect to calculations of percentage ownership) shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. The provisions of this paragraph shall be implemented in a manner otherwise than in strict conformity with the terms of this paragraph to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such Maximum Percentage limitation. The limitations contained in this paragraph shall apply to a successor holder of the Note. The holders of common stock of the Borrower shall be third party beneficiaries of this paragraph and the Borrower may not amend or waive this paragraph without the consent of holders of a majority of its common stock. For any reason at any time, upon the written or oral request of the holder, the Borrower shall within one (1) Business Day confirm orally and in writing to the holder the number of shares of common stock then outstanding, including by virtue of any prior conversion of convertible securities into common stock, including, without limitation, pursuant to this Note. By written notice to the Borrower, any holder may increase or decrease the Maximum Percentage to any other percentage not i...
Limitations on Conversion. Notwithstanding anything herein to the contrary, at the election of the Company under this Section 2.9, Eurocurrency Rate Advances in an Agreed Currency may be converted and/or continued as Eurocurrency Rate Advances only in the same Agreed Currency.
Limitations on Conversion. Notwithstanding SECTION 5(a) or SECTION 5(c) but subject to SECTION 8, the Company shall not effect any conversion of the Series A Preferred Stock or otherwise issue shares of Common Stock pursuant to SECTION 5(a) or (c), and no holder of Series A Preferred Stock will be permitted to convert shares of Series A Preferred Stock into shares of Common Stock if, and to the extent that, following such conversion, either (i) such holder’s, together with such holder’s Affiliates’, aggregate voting power on a matter being voted on by holders of Common Stock would exceed 19.9% of the Maximum Voting Power or (ii) such holder, together with such holder’s Affiliates, would Beneficially Own (disregarding for this purpose clause (ii) of the definition of “Beneficially Own”) more than 19.9% of the then outstanding Common Stock; provided, however, that such conversion restriction shall not apply to any conversion in connection with and subject to completion of (A) a Public Sale of the Common Stock to be issued upon such conversion, if following consummation of such Public Sale such holder and its Affiliates will not Beneficially Own (disregarding for this purpose clause (ii) of the definition of “Beneficially Own”) in excess of 19.9% of the then outstanding Common Stock or (B) a bona fide third party tender offer for the Common Stock issuable thereupon. For purposes of the foregoing sentence, the number of shares of Common Stock Beneficially Owned by a holder and its Affiliates shall include the number of shares of Common Stock issuable upon conversion of the Series A Preferred Stock with respect to which a conversion notice has been given, but shall exclude the number of shares of Common Stock which would be issuable upon conversion or exercise of (x) the remaining, unconverted portion of the Series A Preferred Stock and any Junior Preferred Stock (as defined in the Securities Purchase Agreement), (y) any outstanding Notes, or (z) any outstanding Warrants (as defined in the Securities Purchase Agreement) Beneficially Owned by such holder or any of its Affiliates. Upon the written request of the holder, the Company shall within two (2) Business Days confirm in writing to any holder the number of shares of Common Stock then outstanding.
Limitations on Conversion. The Company shall not effect any conversion of this Note, and the Holder of this Note shall not have the right to convert any portion of this Note pursuant to Section 3(a), to the extent that after giving effect to such conversion, the Holder (together with the Holder’s Affiliates) would beneficially own in excess of 9.9% (the “Maximum Percentage”) of the number of shares of Common Stock outstanding immediately after giving effect to such conversion. For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates shall include the number of shares of Common Stock issuable upon conversion of this 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 (A) conversion of the remaining, nonconverted portion of this Note beneficially owned by the Holder or any of its Affiliates and (B) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any Other Notes or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates. Except as set forth in the preceding sentence, for purposes of this Section 3(c)(iii), beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of this Section 3(c)(iii), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Form 10-K, Form 10-Q or Form 8-K, as the case may be, (y) a more recent public announcement by the Company or (z) any other recent notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written request of the Holder, the Company shall within two (2) Business Days confirm orally and in writing to the Holder 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 the conversion or exercise of securities of the Company, including this Note, by the Holder or its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Compa...
Limitations on Conversion. The Company will not effect any conversion of the Securities (including any Mandatory Conversion pursuant to Section 6.10), and Holders of the Securities will not have the right to convert any portion of the Securities, in excess of that portion of the Securities on conversion of which the sum of (1) the number of shares of Common Stock beneficially owned by a Holder and its Affiliates (other than shares of Common Stock which may be deemed beneficially owned through the ownership of the unconverted portion of the Securities or the unexercised or unconverted portion of any other securities of the Company beneficially owned by such Holder or its Affiliates subject to a limitation on exercise or conversion analogous to the limitations described in this Section 6.17) and (2) the number of shares of Common Stock issuable upon the conversion of the portion of the Securities with respect to which the determination set forth in this sentence is being made (including any shares related to the settlement of the Coupon Make Whole Payment and the Additional Amount in connection therewith), would result in beneficial ownership by such Holder and its Affiliates of any amount greater than 9.9% (the “Maximum Percentage”) of the then issued and outstanding shares of Common Stock. Except as set forth in the preceding sentence, for purposes of this Section 6.17, beneficial ownership will be calculated in accordance with Section 13(d) and the rules and regulations promulgated thereunder under the Exchange Act. For purposes of this Section 6.17, in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of issued and outstanding shares of Common Stock as reflected in (x) the Company’s most recent document or report, as the case may be, filed by the Company with the Commission, (y) a more recent public announcement by the Company or (z) any other recent notice by the Company, in each case setting forth the number of shares of Common Stock issued and outstanding. Upon the written request of a Holder, the Company will within two Business Days confirm in writing to such Holder the number of shares of Common Stock then issued and outstanding. In any case, the number of issued and outstanding shares of Common Stock will be determined for this purpose after giving effect to the conversion or exercise of securities of the Company, including the Securities, by the applicable Holder and its Affiliates since the date as of which such number of outsta...
Limitations on Conversion. Notwithstanding anything herein to the contrary, the Company shall not issue to the Holder, and the Holder may not acquire, a number of Conversion Shares upon conversion of this Warrant to the extent that, upon such exercise, the number of shares of Common Stock then beneficially owned by the Holder and its Affiliates and any other persons or entities whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act (including shares held by any “group” of which the Holder is a member, but excluding shares beneficially owned by virtue of the ownership of securities or rights to acquire securities that have limitations on the right to convert, exercise or purchase similar to the limitation set forth herein) would exceed 9.985% of the total number of the shares of Common Stock then issued and outstanding (the “9.985% Cap”)); provided that the 9.985% Cap shall not apply to the extent that shares of Common Stock are not deemed to constitute “equity securities” pursuant to Rule 13d-1(i) under the Exchange Act and, provided further, that the 9.985% Cap shall not apply to an exercise effected following receipt of a Major Transaction Notice (as defined below) in respect of a Major Transaction (as defined below) described in clause (A) of the definition of Major Transaction above in which the Company will not be the surviving entity, until consummation or abandonment of such Major Transaction and, provided further, that the 9.985% Cap shall not apply to the conversion of this Note into IPO Conversion Shares. For the avoidance of doubt, a conversion hereunder (whether at the election of the Holder or the Company) shall be null and void to the extent the issuance of shares upon such conversion would violate this subsection (i).
Limitations on Conversion. This Warrant can not be exercised so that the Holder will own more than 4.99
Limitations on Conversion. Notwithstanding anything to the contrary contained in this Agreement and the Convertible Note, the Convertible Note may not be converted, in whole or in part, into Conversion Shares unless and until any then-applicable requirements of all federal and state securities laws and regulatory agencies charged with enforcing securities laws shall have been fully complied with to the satisfaction of the Company and its counsel; PROVIDED, HOWEVER, that the Company shall at all times use its best efforts to comply with such requirements. The Company may, in its reasonable discretion, condition any conversion of the Convertible Note upon the holder's delivery to the Company of a written agreement, in form and substance satisfactory to the Company, whereby the holder makes, at the time of conversion, such representations and warranties to and for the benefit of the Company as are comparable to the representations and warranties of the Purchaser set forth in SECTION 3.2(d) below as and to the extent applicable to the issuance of the Conversion Shares upon conversion of the Convertible Note.
Limitations on Conversion. The Company will not effect any conversion of the Securities (including any Mandatory Conversion), and Holders of the Securities will not have the right to convert any portion of the Securities, to the extent that, after giving effect to such conversion, a Holder (together with such Holder’s Affiliates) would beneficially own in excess of 9.9% of the number of shares of Common Stock outstanding immediately after giving effect to such conversion. If the Company is unable to exercise its option to convert some or all of the Securities of any Holder due to the limitations described above, then the Company will have the right at any time to redeem the Securities held by such Holder that the Company is not permitted to convert at a redemption price equal to 100% of the principal amount of Securities being redeemed, together with accrued and unpaid interest (including Additional Interest, if any), on the principal amount of the Securities redeemed, to but excluding the Redemption Date (subject to certain exceptions set forth in the Indenture). The Company may only redeem the Securities after the 2015 Notes are no longer outstanding. Redemption at the Option of the Company. The Securities are redeemable in whole or in part at any time on or after January 15, 2015, at the option of the Company. The Redemption Price at which the Securities are redeemable shall be payable in cash and shall be equal to 100% of the principal amount of Securities being redeemed, together with accrued and unpaid interest (including Additional Interest, if any), on the principal amount of the Securities redeemed, to but excluding the Redemption Date (subject to certain exceptions set forth in the Indenture). The Company may only redeem the Securities after the 2015 Notes are no longer outstanding.
Limitations on Conversion. (a) [As used herein, “Attribution Parties” means, collectively, the following persons and entities: (i) any investment vehicle, including, any funds, feeder funds or managed accounts, currently or from time to time after the date hereof, directly or indirectly managed or advised by the Holder’s investment manager or any of its affiliates (as such term is defined pursuant to Rule 12b-2 under the Exchange Act or principals, (ii) any affiliates of the Holder or any of the foregoing, (iii) any other person who is a member of a group together with the Holder or any of the foregoing and (iv) any other person whose beneficial ownership of any class of Issuer “equity securities” (as such term is defined in Rule 13d-1(i) under the Exchange Act or any successor rule) (“Issuer Equity Securities”) includes shares of such Issuer Equity Securities beneficially owned by the Holder or any of the foregoing. For the purposes hereof, “group” has the meaning set forth in Section 13(d) of the Exchange Act and applicable regulations of the SEC.
