Common use of Limitations on Share Issuances Clause in Contracts

Limitations on Share Issuances. (a) Notwithstanding anything herein to the contrary, the Borrower shall not issue to any Lender, and no Lender may acquire, a number of shares of Common Stock hereunder to the extent that, upon such issuance, the number of shares of Common Stock then beneficially owned by such Lender and its Affiliates and any other persons or entities whose beneficial ownership of Common Stock would be aggregated with such Lender’s for purposes of Section 13(d) of the Exchange Act (including shares held by any “group” of which the Lender is a member, but excluding shares beneficially owned by virtue of the ownership of securities or rights to acquire securities (including the Warrants) that have limitations on the right to convert, exercise or acquire similar to the limitation set forth herein), would exceed 9.985% of the total number of shares of Common Stock then issued and outstanding (the “9.985% Cap”). For purposes hereof, “group” has the meaning set forth in Section 13(d) of the Exchange Act and applicable regulations of the SEC, and the percentage held by each Lender shall be determined in a manner consistent with the provisions of Section 13(d) of the Exchange Act. All Share Issuance Notices shall set forth the number of shares of Common Stock then outstanding. Upon written request of any Lender at any time, the Borrower shall, within one (1) Business Day, confirm orally and in writing to such Lender the number of shares of Common Stock then outstanding. At any time following delivery of a Share Issuance Notice and ending on the last day of the Issuance Period, each Lender shall have the right to deliver notice to the Borrower (and shall be entitled to include such notice in any Daily Share Notice) (a “Cap Notice”) stating the maximum number of shares of Common Stock that may be issued to such Lender without exceeding the maximum number of shares that such Lender may receive under the 9.985% Cap (the “Maximum Share Amount”), which shall be conclusive and binding upon the Borrower and such Lender. In no event shall the number of shares issued to a Lender pursuant to any Share Issuance Notice exceed the Maximum Share Amount specified in such Lender’s Cap Notice, and the Issuance Period and the Applicable Trading Period shall be deemed terminated with respect to such Lender at such time as such Lender has been issued the Maximum Share Amount specified in such Lender’s Cap Notice.

Limitations on Share Issuances. (a) Notwithstanding anything herein to the contrary, (i) no payments of interest on the Borrower shall not issue to any Lender, and no Lender Notes may acquire, a number of be satisfied in shares of Common Stock hereunder to the extent thatthat the number of, upon such issuanceshares so issued, together with the number of other shares of Common Stock then beneficially owned by such a Lender and its Affiliates affiliates and any other persons or entities whose beneficial ownership of Common Stock would be aggregated with such Lender’s the Lender for purposes of Section 13(d) of the Exchange Act (Act, including any shares held by any “"group” " of which the Lender is a member, but excluding exclusive of shares beneficially owned by virtue of the ownership issuable at such time upon exercise or conversion of securities or rights to acquire securities (including the Warrants) that have limitations on the right to convert, exercise or acquire purchase similar to the limitation limitations set forth hereinin this Section 2.9(e), would exceed 9.985% of the total number of shares of Common Stock of the Borrower then issued and outstanding (the “9.985% Cap”). For purposes hereof, “group” has ; (ii) if a Foreign Lender is relying on the meaning set forth in portfolio interest exception of Section 13(d871(h) or Section 881(c) of the Exchange Act and Code with respect to interest payments, no payments under the Notes may be made in Common Stock pursuant to this Section 2.9 to such Foreign Lender (or any Lender affiliated with such Lender) to the extent the issuance of shares of Common Stock to such Foreign Lender (or any Lender affiliated with such Lender) would cause such Foreign Lender (taking into account applicable regulations attribution rules) to become a 10% shareholder of the SEC, and Borrower within the percentage held by each Lender shall be determined in a manner consistent with the provisions meaning of Section 13(d871(h)(3)(B) of the Exchange Act. All Code, (iii) no interest may be satisfied through the issuance of shares of Common Stock hereunder on any Interest Payment Date to the extent the number of Interest Payment Shares issuable in respect of an Interest Share Issuance Notices shall set forth on such Interest Payment Date would exceed one-half of one percent of (x) the total number of shares of Common Stock then outstanding. Upon written request of any Lender at any time, outstanding less (y) the Borrower shall, within one (1) Business Day, confirm orally and in writing to such Lender the total number of shares of Common Stock then outstanding. At beneficially owned by officers, directors and affiliates of the Borrower, and (iv) no shares may be issued pursuant to this Section 2.9 in satisfaction of interest payments if any time following delivery of the conditions to issuance of a Share Issuance Notice and ending on set forth in the last day proviso under subsection (b) above are not satisfied at the time of the Issuance Period, each Lender shall have the right to deliver notice to the Borrower (and shall be entitled to include such notice in any Daily Share Notice) (a “Cap Notice”) stating the maximum number of shares of Common Stock that may be issued to such Lender without exceeding the maximum number of shares that such Lender may receive under the 9.985% Cap (the “Maximum Share Amount”), which shall be conclusive and binding upon the Borrower and such Lender. In no event shall the number of shares issued to a Lender pursuant to any Share Issuance Notice exceed the Maximum Share Amount specified in such Lender’s Cap Notice, and the Issuance Period and the Applicable Trading Period shall be deemed terminated with respect to such Lender at such time as such Lender has been issued the Maximum Share Amount specified in such Lender’s Cap Noticeissuance.

Limitations on Share Issuances. (a) Notwithstanding anything herein to the contrary, : (i) no payments of principal or interest on the Borrower shall not issue to any Lender, and no Lender Loan may acquire, a number of be made in shares of Common Stock hereunder to the extent that, upon such issuance, that the number of shares so issued, together with the number of other shares of Common Stock then beneficially owned by such Lender the Lenders and its Affiliates their affiliates and any other persons or entities whose beneficial ownership of Common Stock would be aggregated with such Lender’s the Lenders for purposes of Section 13(d) of the Exchange Act (Act, including any shares held by any “group” of which the Lender is a memberLenders are members, but excluding exclusive of shares beneficially owned by virtue of the ownership issuable at such time upon exercise or conversion of securities or rights to acquire securities (including the Warrants) that have limitations on the right to convert, exercise or acquire purchase similar to the limitation limitations set forth hereinin this Section 2.12(h)(i), would exceed 9.9859.98% of the total number of shares of Common Stock of the Borrower then issued and outstanding outstanding; and (ii) the maximum number of shares of Common Stock (i) issued or issuable pursuant to the Warrants issued pursuant to the provisions of Section 2.11 may not exceed 12,100,000 shares of Common Stock (the “9.985Maximum Warrant Shares”) and (ii) the maximum number of shares of Common Stock issued pursuant to the provisions of this Section 2.12 (“Maximum Facility Shares”) may not exceed 8,891,776 shares of Common Stock; provided, however, following December 4, 2009, to the extent that Warrants to purchase less than 11,000,000 shares of Common Stock have been issued pursuant to the provisions of Section 2.11 hereof, the Maximum Facility Shares shall be increased and the Maximum Warrant Shares shall be decreased to the extent of 110% Cap”)of that deficiency. For purposes hereof, “group” has the meaning set forth in Section 13(d) of the Exchange Act and applicable regulations of the SEC, and the percentage held by each Lender the Holder shall be determined in a manner consistent with the provisions of Section 13(d) of the Exchange Act. All Share Issuance Notices shall set forth [ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the number of shares of Common Stock then outstanding. Upon written request of any Lender at any time, the Borrower shall, within one (1) Business Day, confirm orally Securities and in writing Exchange Commission pursuant to such Lender the number of shares of Common Stock then outstanding. At any time following delivery of a Share Issuance Notice and ending on the last day Rule 24B-2 of the Issuance PeriodSecurities Exchange Act of 1934, each Lender shall have the right to deliver notice to the Borrower (and shall be entitled to include such notice in any Daily Share Notice) (a “Cap Notice”) stating the maximum number of shares of Common Stock that may be issued to such Lender without exceeding the maximum number of shares that such Lender may receive under the 9.985% Cap (the “Maximum Share Amount”), which shall be conclusive and binding upon the Borrower and such Lender. In no event shall the number of shares issued to a Lender pursuant to any Share Issuance Notice exceed the Maximum Share Amount specified in such Lender’s Cap Notice, and the Issuance Period and the Applicable Trading Period shall be deemed terminated with respect to such Lender at such time as such Lender has been issued the Maximum Share Amount specified in such Lender’s Cap Noticeamended.

Limitations on Share Issuances. (a) Notwithstanding anything herein to the contrary, the Borrower Corporation shall not issue to any LenderHolder, and no Lender Holder may acquire, a number of shares of Common Stock hereunder (pursuant to this Section 7(g) or otherwise) to the extent that, upon such issuance, the aggregate number of shares of Common Stock then beneficially owned by such Lender and its Affiliates and Holder together with any other persons or entities whose beneficial ownership of Common Stock would be aggregated with such Lender’s for purposes of Section 13(d) of the Exchange Act Attribution Parties (including shares held by any “group” of which the Lender such Holder is a member, but excluding shares beneficially owned by virtue ) would exceed the then-applicable Beneficial Ownership Limitation for such Holder. For purposes of the ownership of securities or rights to acquire securities (including foregoing sentence, the Warrants) that have limitations on the right to convert, exercise or acquire similar to the limitation set forth herein), would exceed 9.985% of the total aggregate number of shares of Common Stock then issued beneficially owned by such Holder and outstanding its Attribution Parties shall include the number of shares of Common Stock held by the Holder and all of its Attribution Parties plus the number of shares of Common Stock issuable upon conversion of such shares of Series 1 Preferred Stock with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (i) conversion of the “9.985% Cap”remaining, unconverted portion of the shares of Series 1 Preferred Stock beneficially owned by such Holder or any of its Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Corporation beneficially owned by such Holder or any of its Attribution Parties subject to a limitation on conversion or exercise analogous to the limitation contained in this Section 7(g). For purposes hereof, “group” has the meaning set forth in Section 13(d) of the Exchange Act and applicable regulations of the SECCommission, and the percentage held by each Lender Holder shall be determined in a manner consistent with the provisions of Section 13(d) of the Exchange Act. All Share Issuance Notices shall set For purposes of the Beneficial Ownership Limitation, in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares as reflected in (1) the Corporation’s most recent quarterly report on Form 10-Q or annual report on Form 10-K, as the case may be, (2) a more recent public announcement by the Corporation or (3) any other notice by the Corporation or the transfer agent for the Common Stock setting forth the number of shares of Common Stock then outstanding. Upon written request of any Lender Holder at any time, the Borrower Corporation shall, within one (1) Business Day, confirm orally and in writing to such Lender Holder the number of shares of Common Stock then outstanding. At In any time following delivery case, the number of a Share Issuance Notice and ending on outstanding shares of Common Stock shall be determined after giving effect to the last day conversion or exercise of securities of the Issuance PeriodCorporation by such Holder and its Attribution Parties since the date as of which the number of outstanding shares of Common Stock was reported. In the event that the issuance of shares of Common Stock to any Holder upon the conversion of any of such Holder’s shares of Series 1 Preferred Stock results in such Holder and its Attribution Parties being deemed to beneficially own, each Lender shall have in the right to deliver notice to the Borrower (and shall be entitled to include such notice in any Daily Share Notice) (aggregate, a “Cap Notice”) stating the maximum number of shares of Common Stock that may be issued to exceeds the then-applicable Beneficial Ownership Limitation for such Lender without exceeding Holder, the maximum issuance of that number of shares that such Lender may receive under so issued in excess of the 9.985% Cap Beneficial Ownership Limitation (the “Maximum Share AmountExcess Shares”), which and the conversion of shares of Series 1 Preferred Stock resulting in such issuance, shall be conclusive deemed null and binding upon void and shall be cancelled ab initio, such Holder shall not have the Borrower power to vote or to transfer the Excess Shares, and the shares of Series 1 Preferred Stock as to which the conversion was voided shall remain outstanding and continue to be held by such LenderHolder. In no event As soon as reasonably practicable after such issuance and conversion have been deemed null and void, the Corporation shall return to such Holder certificates representing the number of shares issued of Series 1 Preferred Stock corresponding to the voided issuance and conversion (to the extent such shares of Series 1 Preferred Stock were surrendered to the Corporation). For purposes of clarity, the shares of Common Stock underlying any Holder’s shares of Series 1 Preferred Stock in excess of the Beneficial Ownership Limitation shall not be deemed to be beneficially owned by such Holder for any purpose, including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the Exchange Act. The provisions of this Section 7(g) shall be construed and implemented in a Lender pursuant manner otherwise than in strict conformity with the terms of this Section 7(g) to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 7(g) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this Section 7(g) may not be waived and shall apply to any Share Issuance Notice exceed the Maximum Share Amount specified in such Lender’s Cap Notice, and the Issuance Period and the Applicable Trading Period shall be deemed terminated with respect to such Lender at such time as such Lender has been issued the Maximum Share Amount specified in such Lender’s Cap Noticesuccessor Holder of shares of Series 1 Preferred Stock.

Limitations on Share Issuances. (a) Notwithstanding anything herein to the contrary, (i) no payments of interest on the Borrower shall not issue to any Lender, and no Lender Notes may acquire, a number of shares of be made in Common Stock hereunder Shares to the extent that, upon such issuance, that the number of shares so issued, together with the number of other Common Stock then Shares beneficially owned by such a Lender and its Affiliates affiliates and any other persons or entities whose beneficial ownership of Common Stock Shares would be aggregated with such Lender’s the Lender for purposes of Section 13(d) of the Exchange Act (Act, including any shares held by any “group” of which the Lender is a member, but excluding exclusive of shares beneficially owned by virtue of the ownership issuable at such time upon exercise or conversion of securities or rights to acquire securities (including the Warrants) that have limitations on the right to convert, exercise or acquire purchase similar to the limitation limitations set forth hereinin this Section 2.11(e), would exceed 9.985% of the total number of shares Common Shares of Common Stock the Borrower then issued and outstanding and (the “9.985% Cap”). For purposes hereof, “group” has the meaning set forth in Section 13(dii) of the Exchange Act and applicable regulations of the SEC, and the percentage held by each Lender shall be determined in a manner consistent with the provisions of Section 13(d) of the Exchange Act. All Share Issuance Notices shall set forth the number of shares of Common Stock then outstanding. Upon written request of any Lender at any time, the Borrower shall, within one (1) Business Day, confirm orally and in writing to such Lender the number of shares of Common Stock then outstanding. At any time following delivery of a Share Issuance Notice and ending on the last day of the Issuance Period, each Lender shall have the right to deliver notice to the Borrower (and shall be entitled to include such notice in any Daily Share Notice) (a “Cap Notice”) stating the maximum number of Common Shares that the Borrower may issue pursuant to the provisions of this Section 2.11 may not exceed 4,253,895 shares (subject to adjustment to reflect any stock split, stock combination, reclassification or similar event). Subject to the compliance with the other provisions contained herein (including, without limitation, clause (ii) of this subsection (e)), the Lenders agree to use commercially reasonable efforts (which may include, without limitation, disposing of Common Stock that may be issued Shares prior to such Lender without exceeding the maximum number of shares that such Lender may receive a Common Share Issuance under the 9.985% Cap (the “Maximum Share Amount”), which shall be conclusive and binding upon terms hereof) to enable the Borrower and such Lender. In no event shall to issue on any Interest Payment Date on which the number of shares issued Borrower elects to make a Lender pursuant to any Common Share Issuance Notice exceed under the Maximum Share Amount specified in terms hereof, the Interest Payment Shares issuable on such Lender’s Cap Notice, and Interest Payment Date without causing the Issuance Period and violation of the Applicable Trading Period shall be deemed terminated with respect to such Lender at such time as such Lender has been issued the Maximum Share Amount specified in such Lender’s Cap Noticeprovisions of clause (i) of this subsection (e).

Limitations on Share Issuances. (a) Notwithstanding anything herein to the contrary, the Borrower shall not issue to any Lender, and (i) no Lender conversions or payments may acquire, a number of be made in shares of Common Stock hereunder to the extent that, upon such issuance, the number of shares so issued, together with the number of other shares of Common Stock then beneficially owned by such Lender the Lenders and its Affiliates affiliates and any other persons or entities whose beneficial ownership of Common Stock would be aggregated with such Lender’s the Lenders for purposes of Section 13(d) of the Exchange Act (including shares held by any includes “group” of which the Lender is a member, but excluding shares beneficially owned by virtue of the ownership of securities or rights to acquire securities (including the Warrants) that have limitations on the right to convert, exercise or acquire similar to the limitation set forth hereinmembers), would exceed 9.9859.98% of the total number of shares of Common Stock of the Borrower then issued and outstanding outstanding, (ii) if a Foreign Lender is relying on the “9.985% Cap”). For purposes hereof, “group” has the meaning set forth in portfolio interest exception of Section 13(d871(h) or Section 881(c) of the Exchange Act and Code with respect to interest payments, no payments under the Notes may be made in Common Stock pursuant to this Section 2.11 to such Foreign Lender (or any Lender affiliated with such Lender) to the extent the issuance of shares of Common Stock to such Foreign Lender (or any Lender affiliated with such Lender) would cause such Foreign Lender (taking into account applicable regulations attribution rules) to become a 10% shareholder of the SEC, and Borrower within the percentage held by each Lender shall be determined in a manner consistent with the provisions meaning of Section 13(d871(h)(3)(B) of the Exchange Act. All Share Issuance Notices shall set forth Code, (iii) no conversions or payments may be made in shares of Common Stock pursuant to this Section 2.11 to the extent the number of shares of Common Stock then outstanding. Upon written request of any Lender at any timeso issued, the Borrower shall, within one (1) Business Day, confirm orally together with all shares previously issued pursuant to this Section 2.11 and in writing to such Lender the number of all shares of Common Stock then outstanding. At issued or issuable pursuant to any time following delivery Warrant would exceed 9,500,000 shares of Common Stock (subject to appropriate adjustment to reflect any stock split, stock combination, reclassification or similar event), and (iv) no conversions may be made and no shares may be issued pursuant to this Section 2.11 in satisfaction of interest payments or fees if any of the conditions to issuance of a Share Issuance Notice and ending on set forth in the last day proviso under subsection (b) above are not satisfied at the time of the Issuance Period, each Lender shall have the right to deliver notice to the Borrower (and shall be entitled to include such notice in any Daily Share Notice) (a “Cap Notice”) stating the maximum number of shares of Common Stock that may be issued to such Lender without exceeding the maximum number of shares that such Lender may receive under the 9.985% Cap (the “Maximum Share Amount”), which shall be conclusive and binding upon the Borrower and such Lender. In no event shall the number of shares issued to a Lender pursuant to any Share Issuance Notice exceed the Maximum Share Amount specified in such Lender’s Cap Notice, and the Issuance Period and the Applicable Trading Period shall be deemed terminated with respect to such Lender at such time as such Lender has been issued the Maximum Share Amount specified in such Lender’s Cap Noticeissuance.

Limitations on Share Issuances. (a) Notwithstanding anything herein to the contrary, : (i) no payments of principal or interest on the Borrower shall not issue to any Lender, and no Lender Loan may acquire, a number of be made in shares of Common Stock hereunder to the extent that, upon such issuance, that the number of shares so issued, together with the number of other shares of Common Stock then beneficially owned by such Lender the Lenders and its Affiliates their affiliates and any other persons or entities whose beneficial ownership of Common Stock would be aggregated with such Lender’s the Lenders for purposes of Section 13(d) of the Exchange Act (Act, including any shares held by any “group” of which the Lender is a memberLenders are members, but excluding exclusive of shares beneficially owned by virtue of the ownership issuable at such time upon exercise or conversion of securities or rights to acquire securities (including the Warrants) that have limitations on the right to convert, exercise or acquire purchase similar to the limitation limitations set forth hereinin this Section 2.12(h)(i), would exceed 9.9859.98% of the total number of shares of Common Stock of the Borrower then issued and outstanding outstanding; and (ii) the maximum number of shares of Common Stock (i) issued or issuable pursuant to the Warrants issued pursuant to the provisions of Section 2.11 may not exceed 12,100,000 shares of Common Stock (the “9.985Maximum Warrant Shares”) and (ii) the maximum number of shares of Common Stock issued pursuant to the provisions of this Section 2.12 (“Maximum Facility Shares”) may not exceed 8,891,776 shares of Common Stock; provided, however, following December 4, 2009, to the extent that Warrants to purchase less than 11,000,000 shares of Common Stock have been issued pursuant to the provisions of Section 2.11 hereof, the Maximum Facility Shares shall be increased and the Maximum Warrant Shares shall be decreased to the extent of 110% Cap”)of that deficiency. For purposes hereof, “group” has the meaning set forth in Section 13(d) of the Exchange Act and applicable regulations of the SEC, and the percentage held by each Lender the Holder shall be determined in a manner consistent with the provisions of Section 13(d) of the Exchange Act. All Share Issuance Notices shall set forth the number of shares of Common Stock then outstanding. Upon written request of any Lender at any time, the Borrower shall, within one (1) Business Day, confirm orally and in writing to such Lender the number of shares of Common Stock then outstanding. At any time following delivery of a Share Issuance Notice and ending on the last day of the Issuance Period, each Lender shall have the right to deliver notice to the Borrower (and shall be entitled to include such notice in any Daily Share Notice) (a “Cap Notice”) stating the maximum number of shares of Common Stock that may be issued to such Lender without exceeding the maximum number of shares that such Lender may receive under the 9.985% Cap (the “Maximum Share Amount”), which shall be conclusive and binding upon the Borrower and such Lender. In no event shall the number of shares issued to a Lender pursuant to any Share Issuance Notice exceed the Maximum Share Amount specified in such Lender’s Cap Notice, and the Issuance Period and the Applicable Trading Period shall be deemed terminated with respect to such Lender at such time as such Lender has been issued the Maximum Share Amount specified in such Lender’s Cap Notice.

Limitations on Share Issuances. (a) Notwithstanding anything herein to the contrary, the Borrower shall not issue to any Lender, and no Lender may acquire, a number of shares of Common Stock hereunder to the extent that, upon such issuance, the number of shares of Common Stock then beneficially owned by such Lender and its Affiliates and any other persons or entities whose beneficial ownership of Common Stock would be aggregated with such Lender’s for purposes of Section 13(d) of the Exchange Act (including shares held by any “group” of which the Lender is a member, but excluding shares beneficially owned by virtue of the ownership of securities or rights to acquire securities (including the Warrants) that have limitations on the right to convert, exercise or acquire similar to the limitation set forth herein), would exceed 9.9854.985% of the total number of shares of Common Stock then issued and outstanding (the “9.9854.985% Cap”). For purposes hereof, “group” has the meaning set forth in Section 13(d) of the Exchange Act and applicable regulations of the SEC, and the percentage held by each Lender shall be determined in a manner consistent with the provisions of Section 13(d) of the Exchange Act. All Share Issuance Notices shall set forth the number of shares of Common Stock then outstanding. Upon written request of any Lender at any time, the Borrower shall, within one (1) Business Day, confirm orally and in writing to such Lender the number of shares of Common Stock then outstanding. At any time following delivery of a Share Issuance Notice and ending on the last day of Trading Day prior to the Issuance Periodapplicable Interest Payment Date, each Lender shall have the right to deliver notice to the Borrower (and shall be entitled to include such notice in any Daily Share Notice) (a “Cap Notice”) stating the maximum number of shares of Common Stock that may be issued to such Lender without exceeding the maximum number of shares that such Lender may receive under the 9.9854.985% Cap (the “Maximum Share Amount”), which shall be conclusive and binding upon the Borrower and such Lender. In no event shall (a) the number of shares issued to a Lender pursuant to any Share Issuance Notice exceed the Maximum Share Amount specified in such Lender’s Cap Notice; or (b) the aggregate number of shares issued to a Lender pursuant to any Share Issuance Notice, and together with the Issuance Period and the Applicable Trading Period shall be deemed terminated with respect shares previously issued to such Lender at such time as such Lender has been issued the Maximum pursuant to Share Amount specified in Issuance Notices, exceed such Lender’s Cap NoticeShare Issuance Limit. For the avoidance of doubt, the Borrower shall not be entitled, or permitted, to issue an aggregate number of shares of Common Stock pursuant to this Exhibit 2.6 in excess of the Share Issuance Limit.

Limitations on Share Issuances. (a) Notwithstanding anything herein to the contrary, the : (a) The Borrower shall not issue to any Lender, and no Lender may acquire, a number of shares of Common Stock hereunder to the extent that, upon such issuance, the number of shares of Common Stock then beneficially owned by such Lender and its Affiliates and any other persons or entities whose beneficial ownership of Common Stock would be aggregated with such Lender’s for purposes of Section 13(d) of the Exchange Act (including shares held by any “group” of which the Lender is a member, but excluding shares beneficially owned by virtue of the ownership of securities or rights to acquire securities (including the WarrantsNotes) that have limitations on the right to convert, exercise or acquire similar to the limitation set forth herein), would exceed 9.9854.985% of the total number of shares of Common Stock then issued and outstanding (the “9.9854.985% Cap”). For purposes hereof, “group” has the meaning set forth in Section 13(d) of the Exchange Act and applicable regulations of the SEC, and the percentage held by each Lender shall be determined in a manner consistent with the provisions of Section 13(d) of the Exchange Act. All Share Issuance Notices shall set forth the number of shares of Common Stock then outstanding. Upon written request of any Lender at any time, the Borrower shall, within one (1) Business Day, confirm orally and in writing to such Lender the number of shares of Common Stock then outstanding. At any time following delivery of a Share Issuance Notice and ending on the last day of Trading Day prior to the applicable Interest Payment Date or any applicable Principal Share Issuance PeriodClosing Date, each Lender shall have the right to deliver notice to the Borrower (and a “Cap Notice”) (and, if applicable, shall be entitled to include such notice Cap Notice in any a Daily Share Notice) (a “Cap Notice”) stating the maximum number of shares of Common Stock that may be issued to such Lender without exceeding the maximum number of shares that such Lender may receive under the 9.9854.985% Cap (the “Maximum Share Amount”), which shall be conclusive and binding upon the Borrower and such Lender. In Notwithstanding anything herein to the contrary, in no event shall (i) the number of shares issued to a Lender pursuant to any Share Issuance Notice relating to interest or to a Lender on any Principal Share Issuance Closing Date exceed the such Lender’s applicable Maximum Share Amount specified in such Lender’s Cap Notice; (ii) the aggregate number of shares issued to a Lender pursuant to any Share Issuance Notice, together with the shares previously issued to such Lender pursuant to Share Issuance Notices, exceed such Lender’s Share Issuance Limit; or (iii) any shares be issued to any Lender pursuant to a Share Issuance Notice relating to interest to the extent that all of the interest payment due on the applicable Interest Payment Dates have been otherwise satisfied or all Interest Payment Dates have occurred. For the avoidance of doubt, the Borrower shall not be entitled, or permitted, to issue an aggregate number of shares of Common Stock pursuant to this Exhibit 2.3 in excess of the Share Issuance Limit. (b) The Borrower shall not deliver more than one Share Issuance Notice on any day. Following the delivery of any Share Issuance Notice, from and after the delivery thereof, the Borrower shall not deliver a subsequent Share Issuance Notice until three (3) Trading Days following: (i) if the first such Share Issuance Notice provides for the satisfaction of interest through the issuance of Freely Tradeable Shares, the date all of the interest payable on the applicable Interest Payment Date shall have been satisfied in full and (ii) if the first such Share Issuance Notice provides for the satisfaction of principal through the issuance of Freely Tradeable Shares, the date that the Borrower shall have delivered a number of Freely Tradeable Shares equal to the Daily Issuance Shares for each Trading Day during the applicable Issuance Period and satisfied its obligation to pay (in cash) the Prepayment Fees and Make Whole Interest applicable to the principal repaid pursuant to such Share Issuance Notice. (c) Following the delivery of any Conversion Notice (as defined in the Notes) the Borrower shall not deliver a Share Issuance Notice that provides for the satisfaction of principal through the issuance of Freely Tradeable Shares until ten (10) Trading Days following the issuance of Conversion Shares pursuant to such Conversion Notice. (d) The Borrower shall not deliver a Share Issuance Notice that would result in any Issuance Period ending fewer than three (3) Trading Days prior to a date on which principal is due under Section 2.3(a) of the Purchase Agreement, except in connection with the 2019 Principal Payment so long as the Share Issuance Notice is delivered prior to the date the 2019 Principal Payment is due (the “2019 Principal Payment Date”). If the Borrower delivers a Share Issuance Notice prior to the 2019 Principal Payment Date and the Issuance Period with respect thereto shall not have ended prior to the 2019 Principal Payment Date, then for the 2019 Principal Payment Date and each calendar day thereafter, the difference between the Share Issuance Amount and the Applicable Trading Period sum of the Principal Credit Amounts as of the end of each such day shall be deemed terminated with respect to bear interest at the annual rate of 20%, compounded daily, and the Share Issuance Amount shall increase daily by the amount of such Lender at interest until the earlier of (i) such time as the sum of the Principal Credit Amounts equals the Share Issuance Amount as so increased and (ii) such Lender time as the excess of the Share Issuance Amount, as so increased, over the sum of the Principal Credit Amounts has been issued paid by the Maximum Borrower to the Purchasers in cash. Notwithstanding anything to the contrary contained herein, if the Borrower delivers a Share Issuance Notice prior to the 2019 Principal Payment Date, then the Borrower shall not be obligated to pay an amount equal to the Share Issuance Amount specified on the 2019 Principal Payment Date, but (for the avoidance of doubt) the Borrower shall remain obligated to pay the portion of the 2019 Principal Payment in excess of the applicable Share Issuance Amount on the 2019 Principal Payment Date in accordance with the terms of the Facility Agreement. If, as of the end of the Issuance Period in respect of any such Lender’s Cap Share Issuance Notice, the Share Issuance Amount, as increased in accordance with this paragraph, exceeds the sum of the applicable Principal Credit Amounts for such Issuance Period, the Company shall pay such excess amount to the Lenders (ratably, based on their Pro Rata Shares), in cash by wire transfer of immediately available funds, on the first Business Day following the end of such Issuance Period.

Limitations on Share Issuances. (a) Notwithstanding anything herein to the contrary, the Borrower Corporation shall not issue to any LenderHolder, and no Lender Holder may acquire, a number of shares of Common Stock hereunder (pursuant to this Section 7(g) or otherwise) to the extent that, upon such issuance, the aggregate number of shares of Common Stock then beneficially owned by such Lender and its Affiliates and Holder together with any other persons or entities whose beneficial ownership of Common Stock would be aggregated with such Lender’s for purposes of Section 13(d) of the Exchange Act Attribution Parties (including shares held by any “group” of which the Lender such Holder is a member, but excluding shares beneficially owned by virtue ) would exceed the then-applicable Beneficial Ownership Limitation for such Holder. For purposes of the ownership of securities or rights to acquire securities (including foregoing sentence, the Warrants) that have limitations on the right to convert, exercise or acquire similar to the limitation set forth herein), would exceed 9.985% of the total aggregate number of shares of Common Stock then issued beneficially owned by such Holder and outstanding its Attribution Parties shall include the number of shares of Common Stock held by the Holder and all of its Attribution Parties plus the number of shares of Common Stock issuable upon conversion of such shares of Series 1 Preferred Stock with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (i) conversion of the “9.985% Cap”remaining, unconverted portion of the shares of Series 1 Preferred Stock beneficially owned by such Holder or any of its Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Corporation beneficially owned by such Holder or any of its Attribution Parties subject to a limitation on conversion or exercise analogous to the limitation contained in this Section 7(g). For purposes hereof, “group” has the meaning set forth in Section 13(d) of the Exchange Act and applicable regulations of the SECCommission, and the percentage held by each Lender Holder shall be determined in a manner consistent with the provisions of Section 13(d) of the Exchange Act. All Share Issuance Notices shall set For purposes of the Beneficial Ownership Limitation, in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares as reflected in (1) the Corporation’s most recent quarterly report on Form 10-Q or annual report on Form 10-K, as the case may be, (2) a more recent public announcement by the Corporation or (3) any other notice by the Corporation or the transfer agent for the Common Stock setting forth the number of shares of Common Stock then outstanding. Upon written request of any Lender Holder at any time, the Borrower Corporation shall, within one (1) Business Day, confirm orally and in writing to such Lender Holder the number of shares of Common Stock then outstanding. At In any time following delivery case, the number of a Share Issuance Notice and ending on outstanding shares of Common Stock shall be determined after giving effect to the last day conversion or exercise of securities of the Issuance PeriodCorporation by such Holder and its Attribution Parties since the date as of which the number of outstanding shares of Common Stock was reported. In the event that the issuance of shares of Common Stock to any Holder upon the conversion of any of such Holder’s shares of Series 1 Preferred Stock results in such Holder and its Attribution Parties being deemed to beneficially own, each Lender shall have in the right to deliver notice to the Borrower (and shall be entitled to include such notice in any Daily Share Notice) (aggregate, a “Cap Notice”) stating the maximum number of shares of Common Stock that may be issued to exceeds the then-applicable Beneficial Ownership Limitation for such Lender without exceeding Holder, the maximum issuance of that number of shares that such Lender may receive under so issued in excess of the 9.985% Cap Beneficial Ownership Limitation (the “Maximum Share AmountExcess Shares”), which and the conversion of shares of Series 1 Preferred Stock resulting in such issuance, shall be conclusive deemed null and binding upon void and shall be cancelled ab initio, such Holder shall not have the Borrower power to vote or to transfer the Excess Shares, and the shares of Series 1 Preferred Stock as to which the conversion was voided shall remain outstanding and continue to be held by such LenderHolder. In no event As soon as reasonably practicable after such issuance and conversion have been deemed null and void, the Corporation shall return to such Holder certificates representing the number of shares issued of Series 1 Preferred Stock corresponding to the voided issuance and conversion (to the extent such shares of Series 1 Preferred Stock were surrendered to the Corporation). For purposes of clarity, the shares of Common Stock underlying any Holder’s shares of Series 1 Preferred Stock in excess of the Beneficial Ownership Limitation shall not be deemed to be beneficially owned by such Holder for any purpose, including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the Exchange Act. The provisions of this Section 7(g) shall be construed and implemented in a Lender pursuant manner otherwise than in strict conformity with the terms of this Section 7(g) to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 7(g) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this Section 7(g) may not be waived and shall apply to any Share Issuance Notice exceed the Maximum Share Amount specified in such Lender’s Cap Notice, and the Issuance Period and the Applicable Trading Period shall be deemed terminated with respect to such Lender at such time as such Lender has been issued the Maximum Share Amount specified in such Lender’s Cap Noticesuccessor Holder of shares of Series 1 Preferred Stock.

Limitations on Share Issuances. (a) Notwithstanding anything herein to the contrary, the Borrower Corporation shall not issue to any LenderHolder, and no Lender Holder may acquire, a number of shares of Common Stock hereunder (pursuant to this Section 7(g) or otherwise) to the extent that, upon such issuance, the aggregate number of shares of Common Stock then beneficially owned by such Lender and its Affiliates and Holder together with any other persons or entities whose beneficial ownership of Common Stock would be aggregated with such Lender’s for purposes of Section 13(d) of the Exchange Act Attribution Parties (including shares held by any “group” of which the Lender such Holder is a member, but excluding shares beneficially owned by virtue of the ownership of securities or rights to acquire securities (including the Warrants) that have limitations on the right to convert, exercise or acquire similar to the limitation set forth herein), would exceed 9.985% of the total number of shares of Common Stock then issued and outstanding (the “9.985% Cap”). For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such Holder and its Attribution Parties shall include the number of shares of Common Stock held by the Holder and all of its Attribution Parties plus the number of shares of Common Stock issuable upon conversion of such shares of Series A Preferred Stock with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (i) conversion of the remaining, unconverted portion of the shares of Series A Preferred Stock beneficially owned by such Holder or any of its Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Corporation beneficially owned by such Holder or any of its Attribution Parties subject to a limitation on conversion or exercise analogous to the limitation contained in this Section 7(g). For purposes hereof, “group” has the meaning set forth in Section 13(d) of the Exchange Act and applicable regulations of the SECCommission, and the percentage held by each Lender Holder shall be determined in a manner consistent with the provisions of Section 13(d) of the Exchange Act. All Share Issuance Notices shall set For purposes of the 9.985% Cap, in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares as reflected in (1) the Corporation’s most recent quarterly report on Form 10-Q or annual report on Form 10-K, as the case may be, (2) a more recent public announcement by the Corporation or (3) any other notice by the Corporation or the transfer agent for the Common Stock setting forth the number of shares of Common Stock then outstanding. Upon written request of any Lender Holder at any time, the Borrower Corporation shall, within one (1) Business Day, confirm orally and in writing to such Lender Holder the number of shares of Common Stock then outstanding. At In any time following delivery case, the number of a Share Issuance Notice and ending on outstanding shares of Common Stock shall be determined after giving effect to the last day conversion or exercise of securities of the Issuance PeriodCorporation by such Holder and its Attribution Parties since the date as of which the number of outstanding shares of Common Stock was reported. In the event that the issuance of shares of Common Stock to any Holder upon the conversion of any of such Holder’s shares of Series A Preferred Stock results in such Holder and its Attribution Parties being deemed to beneficially own, each Lender shall have in the right to deliver notice to the Borrower (and shall be entitled to include such notice in any Daily Share Notice) (aggregate, a “Cap Notice”) stating the maximum number of shares of Common Stock that may be issued to such Lender without exceeding exceeds the maximum 9.985% Cap, the issuance of that number of shares that such Lender may receive under so issued in excess of the 9.985% Cap (the “Maximum Share AmountExcess Shares”), which and the conversion of shares of Series A Preferred Stock resulting in such issuance, shall be conclusive deemed null and binding upon void and shall be cancelled ab initio, such Holder shall not have the Borrower power to vote or to transfer the Excess Shares, and the shares of Series A Preferred Stock as to which the conversion was voided shall remain outstanding and continue to be held by such LenderHolder. In no event As soon as reasonably practicable after such issuance and conversion have been deemed null and void, the Corporation shall return to such Holder certificates representing the number of shares issued of Series A Preferred Stock corresponding to the voided issuance and conversion (to the extent such shares of Series A Preferred Stock were surrendered to the Corporation). For purposes of clarity, the shares of Common Stock underlying any Holder’s shares of Series A Preferred Stock in excess of the 9.985% Cap shall not be deemed to be beneficially owned by such Holder for any purpose, including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the Exchange Act. The provisions of this Section 7(g) shall be construed and implemented in a Lender pursuant manner otherwise than in strict conformity with the terms of this Section 7(g) to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 7(g) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this Section 7(g) may not be waived and shall apply to any Share Issuance Notice exceed the Maximum Share Amount specified in such Lender’s Cap Notice, and the Issuance Period and the Applicable Trading Period shall be deemed terminated with respect to such Lender at such time as such Lender has been issued the Maximum Share Amount specified in such Lender’s Cap Noticesuccessor Holder of shares of Series A Preferred Stock.