Common use of Limitations on Conversion Clause in Contracts

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. Notwithstanding SECTION 5(a) or SECTION 5(c) ), but subject to SECTION 85(c), the Company shall not effect any conversion of the Series A B Preferred Stock or otherwise issue shares of Common Stock pursuant to SECTION 5(a) or (c), and no holder of Series A B Preferred Stock will be permitted to convert shares of Series A B 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 B 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 B Preferred Stock and any Junior Series A Preferred Stock (as defined in the Securities Purchase Agreement)or Series C Preferred Stock, (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. For purposes hereof, “Maximum Voting Power” means, at the time of determination of the Maximum Voting Power, the total number of votes which may be cast by all capital stock on the applicable matter subject to the vote of the Common Stock, Series A Preferred Stock and any other securities that constitute Voting Stock voting together as a single class and after giving effect to any limitation on voting power set forth in the Certificate of Designation of the Series A Preferred Stock and the certificate of designation or other similar document governing other Voting Stock.

Limitations on Conversion. Notwithstanding SECTION 5(a) or SECTION 5(c) but subject to SECTION 87, the Company Corporation shall not effect any conversion of the Series A Preferred Stock Convertible Preference Shares or otherwise issue shares of Common Stock Class A Shares pursuant to SECTION 5(a) or (cSECTION 5(c), and no holder of Series A Preferred Stock Convertible Preference Shares will be permitted to convert shares of Series Convertible Preference Shares into Class A Preferred Stock into shares of Common Stock Shares 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 Class A Shares would exceed 19.9% of the Maximum Voting Power (as defined below) or (ii) such holder, together with such holder’s Affiliates, holder would Beneficially Own (disregarding for this purpose clause (ii) of the definition of “Beneficially Own”) more than 19.9% of the then outstanding Common StockShares; provided, however, that such conversion restriction shall not apply to any conversion in connection with and subject to completion of (A) a Public Sale public sale of the Common Stock Class A Shares to be issued upon such conversion, if following consummation of such Public Sale 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 Class A Shares or (B) a bona fide third party tender offer for the Common Stock Class A Shares issuable thereupon. For purposes of the foregoing sentence, the number of shares of Common Stock Class A Shares Beneficially Owned by a holder and its Affiliates shall include the number of shares of Common Stock Class A Shares issuable upon conversion of the Series A Preferred Stock Convertible Preference Shares with respect to which a conversion notice has been given, but shall exclude the number of shares of Common Stock Class A Shares which would be issuable upon conversion or exercise of (x) the remaining, unconverted portion of the Series A Preferred Stock Convertible Preference Shares 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) Alternative Preference Shares Beneficially Owned by such holder or any of its Affiliatesholder. Upon the written request of the holder, the Company Corporation shall within two (2) Business Days confirm in writing (which may be by email) to any holder the number of Class A Shares and Class B Shares then outstanding. In connection with any conversion and as a condition to the Corporation effecting such conversion, upon request of the Corporation, a holder of Convertible Preference Shares shall deliver to the Corporation a certificate, signed by a duly authorized officer of such holder, no less than twelve (12) Business Days prior to the applicable conversion, certifying that, after giving effect to such conversion, (i) such holder’s aggregate voting power on a matter being voted on by holders of Class A Shares will not exceed 19.9% of the Maximum Voting Power or (ii) such holder will not Beneficially Own more than 19.9% of the then outstanding Common Shares. For purposes hereof, “Maximum Voting Power” means, at the time of determination of the Maximum Voting Power, the total number of votes which may be cast by all shares of the Corporation’s capital on a matter subject to the vote of the Common Shares and any other securities that constitute Voting Stock then outstandingvoting together as a single class and after giving effect to any limitation on voting power set forth herein and the articles of amendment or other similar document governing other Voting Stock. For purposes of this SECTION 5(b), the aggregate voting power and Beneficial Ownership of Common Shares held by the Affiliates of a holder shall be attributed to such holder.

Limitations on Conversion. (a) Notwithstanding SECTION 5(a) or SECTION 5(c) but subject anything to SECTION 8the contrary contained herein, the Company shall not effect any conversion of a Note, and each Purchaser shall not be entitled to be issued a number of Company Common Stock in connection with the Series A Preferred Stock or otherwise issue conversion of a Note in excess of that number of shares of Company Common Stock pursuant which, upon giving effect or immediately prior 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 would cause (i) such holder’s, together with such holder’s Affiliates’, the 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 such Purchaser and its Affiliates shall include and any other Persons whose Beneficial Ownership of Common Stock would be aggregated with such Purchaser for purposes of Section 13(d) of the Exchange Act, to exceed 19.99% of the total number of issued and outstanding shares of Common Stock of the Company following such conversion, or (ii) the combined voting power of the securities of the Company Beneficially Owned by such Purchaser and its Affiliates and any other Persons whose Beneficial Ownership of Common Stock would be aggregated with such Purchaser’s for purposes of Section 13(d) of the Exchange Act to exceed 19.99% of the combined voting power of all of the securities of the Company then outstanding following such conversion. (b) For purposes of this Section 4.11, in determining the number of outstanding shares of Common Stock, a Purchaser may rely on the number of outstanding shares of Common Stock as reflected in (i) the Company’s most recent Form 10-Q or Form 10-K, as the case may be, filed with the SEC prior to the date hereof, (ii) a more recent public announcement by the Company or (iii) any other notice by the Company or its transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written request of a Purchaser, the Company shall within three Trading Days confirm in writing or by electronic mail to such Purchaser 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 Notes, by a Purchaser since the date as of which such number of outstanding shares of Common Stock was reported. (c) For purposes of this Section 4.11, the aggregate number of shares of Common Stock or voting securities Beneficially Owned by a Purchaser and its Affiliates and any other Persons whose Beneficial Ownership of Common Stock would be aggregated with such Purchaser’s for purposes of Section 13(d) of the Exchange Act shall include the shares of Common Stock issuable upon the conversion of the Series A Preferred Stock Note with respect to which a conversion notice has been givensuch determination is being made, but shall exclude the number of shares of Common Stock which that would be issuable upon (i) conversion of the remaining unconverted and non-cancelled portion of the Note by such Purchaser and (ii) exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including any securities of the Company that would entitle the holder thereof to acquire at any time Common Stock, including any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock), is subject to a limitation on conversion or exercise of (x) analogous to the remaining, unconverted portion of the Series A Preferred Stock limitation contained herein 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) is Beneficially Owned by such holder Purchaser 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 Affiliates and other Persons whose Beneficial Ownership of Common Stock then outstandingwould be aggregated with such Purchaser’s for purposes of Section 13(d) of the Exchange Act.

Limitations on Conversion. Notwithstanding SECTION 5(a) or SECTION 5(c) but subject anything to SECTION 8the contrary contained herein, the Company shall not effect any conversion of a Note, and each Purchaser shall not be entitled to be issued a number of Company Common Stock in connection with the Series A Preferred conversion of a Note in excess of that number of shares of Company Common Stock which, upon giving effect or otherwise issue immediately prior to such conversion, would cause (i) the aggregate number of shares of Common Stock pursuant beneficially owned by such Purchaser and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with such Purchaser for purposes of Section 13(d) of the Exchange Act, to SECTION 5(a) or (c), exceed 19.99% of the total number of issued and no holder of Series A Preferred Stock will be permitted to convert shares of Series A Preferred Stock into outstanding shares of Common Stock if, and to of the extent that, Company following such conversion, either or (iii) such holder’s, together with such holder’s Affiliates’, aggregate the combined voting power on a matter being voted on of the securities of the Company beneficially owned by holders such Purchaser and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with such Purchaser’s for purposes of Section 13(d) of the Exchange Act to exceed 19.919.99% of the Maximum Voting Power or (ii) such holder, together with such holder’s Affiliates, would Beneficially Own (disregarding for this purpose clause (ii) combined voting power of all of the definition of “Beneficially Own”) more than 19.9% securities of the Company 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 following 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 this Section 4.11, in determining the foregoing sentencenumber of outstanding shares of Common Stock, a Purchaser may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Form 10-Q or Form 10-K, as the case may be, filed with the SEC prior to the date hereof, (y) a more recent public announcement by the Company or (z) any other notice by the Company or its transfer agent setting forth the number of shares of Common Stock Beneficially Owned outstanding. Upon the written request of a Purchaser, the Company shall within three (3) Trading Days confirm in writing or by a holder and its Affiliates shall include electronic mail to such Purchaser 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 Notes, by a Purchaser since the date as of which such number of outstanding shares of Common Stock was reported. For purposes of this Section 4.11, the aggregate number of shares of Common Stock or voting securities beneficially owned by a Purchaser and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with such Purchaser’s for purposes of Section 13(d) of the Exchange Act shall include the shares of Common Stock issuable upon the conversion of the Series A Preferred Stock Note with respect to which a conversion notice has been givensuch determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (x) conversion of the remaining unconverted and non-cancelled portion of the Note by such Purchaser and (y) exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including without limitation any securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including without limitation any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock), is subject to a limitation on conversion or exercise of (x) analogous to the remaining, unconverted portion of the Series A Preferred Stock limitation contained herein 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 is beneficially owned by such holder Purchaser 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 Affiliates and other Persons whose beneficial ownership of Common Stock then outstandingwould be aggregated with such Purchaser’s for purposes of Section 13(d) of the Exchange Act.

Limitations on Conversion. Notwithstanding SECTION 5(a) or SECTION 5(c) ), but subject to SECTION 85(c), the Company shall not effect any conversion of the Series A C Preferred Stock or otherwise issue shares of Common Stock pursuant to SECTION 5(a) or (c), and no holder of Series A C Preferred Stock will be permitted to convert shares of Series A C 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 C 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 C Preferred Stock and any Junior Series A Preferred Stock (as defined in the Securities Purchase Agreement)or Series B Preferred Stock, (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. For purposes hereof, “Maximum Voting Power” means, at the time of determination of the Maximum Voting Power, the total number of votes which may be cast by all capital stock on the applicable matter subject to the vote of the Common Stock, Series A Preferred Stock and any other securities that constitute Voting Stock voting together as a single class and after giving effect to any limitation on voting power set forth in the Certificate of Designation of the Series A Preferred Stock and the certificate of designation or other similar document governing other Voting Stock.

Limitations on Conversion. Notwithstanding SECTION 5(a6(a) or SECTION 5(c6(c) but subject to SECTION 8, the Company Corporation shall not effect any conversion of the Series A 6 Preferred Stock Shares or otherwise issue shares of Common Stock Class A Shares pursuant to SECTION 5(a6(a) or (cSECTION 6(c), and no holder of Series A 6 Preferred Stock Shares will be permitted to convert shares of Series 6 Preferred Shares into Class A Preferred Stock into shares of Common Stock Shares 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 Class A Shares would exceed 19.9% of the Maximum Voting Power (as defined below) or (ii) such holder, together with such holder’s Affiliates, holder would Beneficially Own (disregarding for this purpose clause (ii) of the definition of “Beneficially Own”) more than 19.9% of the then outstanding Common StockShares; provided, however, that such conversion restriction shall not apply to any conversion in connection with and subject to completion of (A) a Public Sale public sale of the Common Stock Class A Shares to be issued upon such conversion, if following consummation of such Public Sale 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 Class A Shares or (B) a bona fide third party tender offer for the Common Stock Class A Shares issuable thereupon. For purposes of the foregoing sentence, the number of shares of Common Stock Class A Shares Beneficially Owned by a holder and its Affiliates shall include the number of shares of Common Stock Class A Shares issuable upon conversion of the Series A 6 Preferred Stock Shares with respect to which a conversion notice has been given, but shall exclude the number of shares of Common Stock Class A Shares which would be issuable upon conversion or exercise of (x) the remaining, unconverted portion of the Series A 6 Preferred Stock Shares 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) Alternative Preference Shares Beneficially Owned by such holder or any of its Affiliatesholder. Upon the written request of the holder, the Company Corporation shall within two (2) Business Days confirm in writing (which may be by email) to any holder the number of Class A Shares, Class B Shares and Class C Shares then outstanding. In connection with any conversion and as a condition to the Corporation effecting such conversion, upon request of the Corporation, a holder of Series 6 Preferred Shares shall deliver to the Corporation a certificate, signed by a duly authorized officer of such holder, no less than twelve (12) Business Days prior to the applicable conversion, certifying that, after giving effect to such conversion, (i) such holder’s aggregate voting power on a matter being voted on by holders of Class A Shares will not exceed 19.9% of the Maximum Voting Power or (ii) such holder will not Beneficially Own more than 19.9% of the then outstanding Common Shares. For purposes hereof, “Maximum Voting Power” means, at the time of determination of the Maximum Voting Power, the total number of votes which may be cast by all shares of the Corporation’s capital on a matter subject to the vote of the Common Shares and any other securities that constitute Voting Stock then outstandingvoting together as a single class and after giving effect to any limitation on voting power set forth herein and the Certificate of Incorporation, the certificate of designation or other similar document governing other Voting Stock. For purposes of this SECTION 6(b), the aggregate voting power and Beneficial Ownership of Common Shares held by the Affiliates of a holder shall be attributed to such holder.

Limitations on Conversion. Notwithstanding SECTION 5(a) or SECTION 5(c) but subject to SECTION 87, the Company Corporation shall not effect any conversion of the Series A Preferred Stock Convertible Preference Shares or otherwise issue shares of Common Stock Class A Shares pursuant to SECTION 5(a) or (cSECTION 5(c), and no holder of Series A Preferred Stock Convertible Preference Shares will be permitted to convert shares of Series Convertible Preference Shares into Class A Preferred Stock into shares of Common Stock Shares 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 Class A Shares would exceed 19.9% of the Maximum Voting Power (as defined below) or (ii) such holder, together with such holder’s Affiliates, holder would Beneficially Own (disregarding for this purpose clause (ii) of the definition of “Beneficially Own”) more than 19.9% of the then outstanding Common StockShares; provided, however, that such conversion restriction shall not apply to any conversion in connection with and subject to completion of (A) a Public Sale public sale of the Common Stock Class A Shares to be issued upon such conversion, if following consummation of such Public Sale 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 Class A Shares or (B) a bona fide third party tender offer for the Common Stock Class A Shares issuable thereupon. For purposes of the foregoing sentence, the number of shares of Common Stock Class A Shares Beneficially Owned by a holder and its Affiliates shall include the number of shares of Common Stock Class A Shares issuable upon conversion of the Series A Preferred Stock Convertible Preference Shares with respect to which a conversion notice has been given, but shall exclude the number of shares of Common Stock Class A Shares which would be issuable upon conversion or exercise of (x) the remaining, unconverted portion of the Series A Preferred Stock Convertible Preference Shares 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) Alternative Preference Shares Beneficially Owned by such holder or any of its Affiliatesholder. Upon the written request of the holder, the Company Corporation shall within two (2) Business Days confirm in writing (which may be by email) to any holder the number of Class A Shares and Class B Shares then outstanding. In connection with any conversion and as a condition to the Corporation effecting such conversion, upon request of the Corporation, a holder of Convertible Preference Shares shall deliver to the Corporation a certificate, signed by a duly authorized officer of such holder, no less than twelve (12) Business Days prior to the applicable conversion, certifying that, after giving effect to such conversion, (i) such holder’s aggregate voting power on a matter being voted on by holders of Class A Shares will not exceed 19.9% of the Maximum Voting Power or (ii) such holder will not Beneficially Own more than 19.9% of the then outstanding Common Shares. For purposes hereof, “Maximum Voting Power” means, at the time of determination of the Maximum Voting Power, the total number of votes which may be cast by all shares of the Corporation’s capital on a matter subject to the vote of the Common Shares and any other securities that constitute Voting Stock then outstandingvoting together as a single class and after giving effect to any limitation on voting power set forth herein and the articles of amendment or other similar document governing other Voting Stock.

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 C Preferred Stock or otherwise issue shares of Common Stock pursuant to SECTION 5(a) or (c)hereof, and no holder of Series A C Preferred Stock will be permitted to convert shares of Series A C Preferred Stock into shares of Common Stock if, and to the extent that, following that the holder exercising such conversion, either conversion right (i) such holder’s, together with such holder’s Affiliates’, aggregate ) would (immediately after giving effect to such conversion and after giving effect to any limitation on voting power on a matter being voted on by holders set forth in this Certificate of Designation or the Certificate of Designation of the Series B Preferred Stock) Beneficially Own outstanding shares of Preferred Stock and Common Stock would exceed 19.9% and any other securities that constitute Voting Stock (as defined in the Stockholders’ Agreement) representing in the aggregate more than the Maximum Voting Percentage 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 thereuponCompany. 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 C 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 C Preferred Stock and any Junior or the Series B Preferred Stock (as defined in the Securities Purchase Agreement), (y) Beneficially Owned by such holder or any outstanding Notes, or (z) of its Affiliates and shall also exclude any outstanding Warrants (as defined in the Securities Purchase Agreement) shares of Common Stock which would be issuable upon exercise of any warrants Beneficially Owned by such holder or any of its Affiliates. Upon the written request of the holder, the Company shall within two one (21) Business Days Day confirm in writing to any holder the number of shares of Common Stock then then-outstanding. Under no circumstance will any holder be entitled to receive cash for any shares of Series C Preferred Stock not convertible solely as a result of the limitations set forth in this SECTION 5(b). Anything in this SECTION 5(b) to the contrary notwithstanding, but subject to the terms and conditions of the Stockholder’s Agreement, the provisions of this SECTION 5(b) will not apply to any conversion of the Series C Preferred Stock in connection with a substantially concurrent sale of the Common Stock issuable upon conversion to a person who is not an Affiliate of the converting holder.

Limitations on Conversion. Notwithstanding SECTION 5(a(i) or SECTION 5(c) but subject to SECTION 8, the Company The Corporation shall not effect any the conversion of the any share of Series A Preferred Stock or otherwise issue shares of Common Stock pursuant to SECTION 5(a) or (c)Preferred, and no person who is a holder of Series A Preferred Stock will be permitted shall have the right to convert shares of Series A Preferred Stock into shares of Common Stock ifStock, and to the extent that, following that after giving effect to such conversion, either such person (i) such holder’s, together with such holder’s Affiliates’, aggregate voting power on a matter being voted on by holders person's affiliates) would beneficially own in excess of Common Stock would exceed 19.99.999% 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 shares of the Common Stock outstanding immediately after giving effect 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 aggregate number of shares of Common Stock Beneficially Owned beneficially owned by a holder such person and its Affiliates affiliates shall include include, without limitation, 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 giventhe determination of such sentence is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining unconverted shares of Series A Preferred beneficially owned by such person and its affiliates and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Corporation beneficially owned by such person and its affiliates (including, without limitation, shares of convertible stock, any debentures, convertible notes or other convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of (xthis paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) the remaining, unconverted portion of the Securities Exchange Act of 1934, as amended. For purposes of this Certificate of Designation, in determining the number of outstanding shares of Common Stock, a holder of Series A Preferred may rely on the number of outstanding shares of Common Stock and any Junior Preferred Stock as reflected in (as defined in 1) the Corporation's most recent Form 10-Q, Form 10-K or other public filing with the Securities Purchase Agreement)and Exchange Commission, as the case may be, (y2) any outstanding Notesa more recent public announcement by the Corporation, or (z3) any outstanding Warrants (as defined in other notice by the Securities Purchase Agreement) Beneficially Owned by such holder Corporation or its transfer agent setting forth the number of shares of Common Stock outstanding. For any of its Affiliates. Upon reason at any time, upon the written or oral request of the holderany holder of Series A Preferred, the Company Corporation shall within two (2) Business Days five business days confirm orally and in writing to any such holder of Series A Preferred 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 Corporation by such holder of Series A Preferred and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. In effecting the conversion of shares of Series A Preferred, the Corporation shall be entitled to rely on a representation by the holder of such shares of Series A Preferred as to the number of shares that it beneficially owns for purposes of the above 9.999% limitation calculation. Notwithstanding the foregoing, the provisions of this