Common use of Limits Upon Issuance of Shares of Common Stock Upon Conversion Clause in Contracts

Limits Upon Issuance of Shares of Common Stock Upon Conversion. (a) Notwithstanding anything to the contrary herein, no Person will be entitled to receive any shares of Common Stock otherwise deliverable upon conversion of the Notes to the extent, but only to the extent, that such receipt would cause such Person to become, directly or indirectly, a Beneficial Owner of more than 9.9% of the shares of the Common Stock outstanding at such time (such restriction, the “Ownership Limit”); provided, however, that this Section 13.12 will not apply to any Person that is subject to Section 16(a) or (b) of the Exchange Act with respect to the Company by virtue of being deemed to be a “director” or “officer” of the Company within the meaning of Section 16 of the Exchange Act. For purposes of this Section 13.12 only, a Person shall be deemed the “Beneficial Owner” of and shall be deemed to beneficially own any shares of Common Stock that such Person or any of such Person’s affiliates (as defined in Rule 12b-2 under the Exchange Act) or associates (as defined in Rule 12b-2 under the Exchange Act) is deemed to beneficially own, together with any shares of Common Stock beneficially owned by any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act (including without limitation, any “group” of which such Person is a member). For purposes of this Section 13.12, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For the avoidance of doubt, the term “Beneficial Owner” as used in this Section 13.12 shall not include (i) (x) with respect to any Global Note, the nominee of the Depositary or any Person having an account with the Depositary or its nominee, and (y) with respect to any Physical Note, the Holder of such Physical Note unless, in each case of clause (x) and (y), such nominee, account holder or Holder shall also be a Beneficial Owner of such Note; and (ii) the number of shares of Common Stock that would be issuable upon (a) conversion of the remaining, unconverted portion of any Notes beneficially owned by such Person or any of its affiliates or associates and any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act (including without limitation, any “group” of which such Person is a member), and (b) exercise or conversion of the unexercised or unconverted portion of any of the Company’s other securities subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by such Person or any of its affiliates or associates and any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act (including without limitation, any “group” of which such Person is a member).

Limits Upon Issuance of Shares of Common Stock Upon Conversion. (a) Notwithstanding anything The Company shall not effect the conversion of any of the Notes held by a Holder, and such Holder shall not have the right to convert any of the Notes held by such Holder pursuant to the contrary hereinterms and conditions of this Indenture and any such conversion shall be null and void and treated as if never made, no Person will be entitled to receive any the extent that after giving effect to such conversion, such Holder together with the other Attribution Parties collectively would beneficially own in excess of 9.99% (the “Maximum Percentage”) of the shares of Common Stock otherwise deliverable upon conversion of the Notes outstanding immediately after giving effect to the extent, but only to the extent, that such receipt would cause such Person to become, directly or indirectly, a Beneficial Owner of more than 9.9% of the shares of the Common Stock outstanding at such time (such restriction, the “Ownership Limit”); provided, however, that this Section 13.12 will not apply to any Person that is subject to Section 16(a) or (b) of the Exchange Act with respect to the Company by virtue of being deemed to be a “director” or “officer” of the Company within the meaning of Section 16 of the Exchange Actconversion. For purposes of this Section 13.12 onlythe foregoing sentence, a Person shall be deemed the “Beneficial Owner” aggregate number of and shall be deemed to beneficially own any shares of Common Stock that such Person or any of such Person’s affiliates (as defined in Rule 12b-2 under the Exchange Act) or associates (as defined in Rule 12b-2 under the Exchange Act) is deemed to beneficially own, together with any shares of Common Stock beneficially owned by any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act (including without limitation, any “group” of which such Person is a member). For purposes of this Section 13.12, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act Holder and the rules and regulations promulgated thereunder. For the avoidance of doubt, the term “Beneficial Owner” as used in this Section 13.12 other Attribution Parties shall not include (i) (x) with respect to any Global Note, the nominee of the Depositary or any Person having an account with the Depositary or its nominee, and (y) with respect to any Physical Note, the Holder of such Physical Note unless, in each case of clause (x) and (y), such nominee, account holder or Holder shall also be a Beneficial Owner of such Note; and (ii) the number of shares of Common Stock that held by such Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon conversion of the Notes with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (aA) conversion of the remaining, unconverted portion of any nonconverted Notes beneficially owned by such Person Holder or any of its affiliates or associates and any the other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act (including without limitation, any “group” of which such Person is a member), Attribution Parties and (bB) exercise or conversion of the unexercised or unconverted nonconverted portion of any other securities of the Company’s Company (including, without limitation, any convertible notes, convertible preferred stock or warrants, including the Notes) beneficially owned by such Holder or any other securities Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained herein in this Section 14.13. For purposes of this Section 14.13, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act. For purposes of determining the number of outstanding shares of Common Stock a Holder may acquire upon the conversion of such Notes without exceeding the Maximum Percentage, such Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the Commission, as the case may be, (y) a more recent public announcement by the Company or (z) any other written notice by the Company or the Transfer Agent, if any, setting forth the number of shares of Common Stock outstanding (the “Reported Outstanding Share Number”). If the Company receives a Conversion Notice from a Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall notify such Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Conversion Notice would otherwise cause such Holder’s beneficial ownership, as determined pursuant to this Section 14.13, to exceed the Maximum Percentage, such Holder must notify the Company of a reduced number of shares of Common Stock to be delivered pursuant to such Conversion Notice. For any reason at any time, upon the written or oral request of any Holder, the Company shall within one (1) Business Day confirm orally and in writing or by electronic mail to such 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 such Notes, by such Holder and any other Attribution Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of shares of Common Stock to a Holder upon conversion of such Notes results in such Holder and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which such Holder’s and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and such Holder shall not have the power to vote or to transfer the Excess Shares. Upon delivery of a written notice to the Company, any Holder may from time to time increase (with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease the Maximum Percentage of such Holder to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to such Holder and the other Attribution Parties and not to any other Holder that is not an Attribution Party of such Holder. For purposes of clarity, the shares of Common Stock issuable to a Holder pursuant to the terms of this Indenture in excess of the Maximum Percentage shall not be deemed to be beneficially owned by such Person or Holder for any of its affiliates or associates and any other persons whose beneficial ownership would be aggregated with such Person purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the Exchange Act Act. No prior inability to convert such Notes 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. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 14.13 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 14.13 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of such Notes. Neither the Trustee nor the Conversion Agent shall have any responsibility to determine the Maximum Percentage or whether the issuance of any shares results in a Holder or Attribution Party having Excess Shares or otherwise determine or monitor compliance with the terms of this Section 14.13. Notwithstanding anything to contrary herein, if in connection with any Mandatory Conversion of a Holder’s Notes there would be Excess Shares or unconverted Notes with respect to such Holder, all such Holder’s Notes (including without limitationany unconverted Notes) shall nevertheless be deemed to have been converted, discharged, satisfied and repaid in full on the applicable Conversion Date and thereafter shall not accrue any “group” interest, provided that, upon request by such Holder, such Holder shall be entitled to receive a number of which shares of Common Stock equal to such Person is a member)Excess Shares subject to the foregoing provisions of this Section 14.13.

Limits Upon Issuance of Shares of Common Stock Upon Conversion. (a) Notwithstanding anything The Company shall not effect the conversion of any of the Notes held by a Holder, and such Holder shall not have the right to convert any of the Notes held by such Holder pursuant to the contrary hereinterms and conditions of this Indenture and any such conversion shall be null and void and treated as if never made, no Person will be entitled to receive any the extent that after giving effect to such conversion, such Holder together with the other Attribution Parties collectively would beneficially own in excess of 9.99% (the “Maximum Percentage”) of the shares of Common Stock otherwise deliverable upon conversion of the Notes outstanding immediately after giving effect to the extent, but only to the extent, that such receipt would cause such Person to become, directly or indirectly, a Beneficial Owner of more than 9.9% of the shares of the Common Stock outstanding at such time (such restriction, the “Ownership Limit”); provided, however, that this Section 13.12 will not apply to any Person that is subject to Section 16(a) or (b) of the Exchange Act with respect to the Company by virtue of being deemed to be a “director” or “officer” of the Company within the meaning of Section 16 of the Exchange Actconversion. For purposes of this Section 13.12 onlythe foregoing sentence, a Person shall be deemed the “Beneficial Owner” aggregate number of and shall be deemed to beneficially own any shares of Common Stock that such Person or any of such Person’s affiliates (as defined in Rule 12b-2 under the Exchange Act) or associates (as defined in Rule 12b-2 under the Exchange Act) is deemed to beneficially own, together with any shares of Common Stock beneficially owned by any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act (including without limitation, any “group” of which such Person is a member). For purposes of this Section 13.12, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act Holder and the rules and regulations promulgated thereunder. For the avoidance of doubt, the term “Beneficial Owner” as used in this Section 13.12 other Attribution Parties shall not include (i) (x) with respect to any Global Note, the nominee of the Depositary or any Person having an account with the Depositary or its nominee, and (y) with respect to any Physical Note, the Holder of such Physical Note unless, in each case of clause (x) and (y), such nominee, account holder or Holder shall also be a Beneficial Owner of such Note; and (ii) the number of shares of Common Stock that held by such Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon conversion of the Notes with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (aA) conversion of the remaining, unconverted portion of any nonconverted Notes beneficially owned by such Person Holder or any of its affiliates or associates and any the other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act (including without limitation, any “group” of which such Person is a member), Attribution Parties and (bB) exercise or conversion of the unexercised or unconverted nonconverted portion of any other securities of the Company’s Company (including, without limitation, any convertible notes, convertible preferred stock or warrants, including the Notes) beneficially owned by such Holder or any other securities Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained herein in this Section 14.13. For purposes of this Section 14.13, beneficial ownership shall be calculated in accordance with Section 13(d) of the 1934 Act. For purposes of determining the number of outstanding shares of Common Stock a Holder may acquire upon the conversion of such Notes without exceeding the Maximum Percentage, such Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the Commission, as the case may be, (y) a more recent public announcement by the Company or (z) any other written notice by the Company or the Transfer Agent, if any, setting forth the number of shares of Common Stock outstanding (the “Reported Outstanding Share Number”). If the Company receives a Conversion Notice from a Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall notify such Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Conversion Notice would otherwise cause such Holder’s beneficial ownership, as determined pursuant to this Section 14.13, to exceed the Maximum Percentage, such Holder must notify the Company of a reduced number of shares of Common Stock to be delivered pursuant to such Conversion Notice. For any reason at any time, upon the written or oral request of any Holder, the Company shall within one (1) Business Day confirm orally and in writing or by electronic mail to such 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 such Notes, by such Holder and any other Attribution Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of shares of Common Stock to a Holder upon conversion of such Notes results in such Holder and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the 1934 Act), the number of shares so issued by which such Holder’s and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and such Holder shall not have the power to vote or to transfer the Excess Shares. Upon delivery of a written notice to the Company, any Holder may from time to time increase (with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease the Maximum Percentage of such Holder to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to such Holder and the other Attribution Parties and not to any other Holder that is not an Attribution Party of such Holder. For purposes of clarity, the shares of Common Stock issuable to a Holder pursuant to the terms of this Indenture in excess of the Maximum Percentage shall not be deemed to be beneficially owned by such Person or Holder for any of its affiliates or associates and any other persons whose beneficial ownership would be aggregated with such Person purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the Exchange Act 1934 Act. No prior inability to convert such Notes 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. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 14.13 to the extent necessary to correct this paragraph (including without or any portion of this paragraph) which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 14.13 or to make changes or supplements necessary or desirable to properly give effect to such limitation, . The limitation contained in this paragraph may not be waived and shall apply to a successor holder of such Notes. Neither the Trustee nor the Conversion Agent shall have any “group” responsibility to determine the Maximum Percentage or whether the issuance of which such Person is any shares results in a member)Holder or Attribution Party having Excess Shares or otherwise determine or monitor compliance with the terms of this Section 14.13.

Limits Upon Issuance of Shares of Common Stock Upon Conversion. (a) Notwithstanding anything The Company shall not effect the conversion of any of the Notes held by a Holder, and such Holder shall not have the right to convert any of the Notes held by such Holder pursuant to the contrary hereinterms and conditions of this Indenture and any such conversion shall be null and void and treated as if never made, no Person will be entitled to receive any the extent that after giving effect to such conversion, such Holder together with the other Attribution Parties collectively would beneficially own in excess of 9.99% (the “Maximum Percentage”) of the shares of Common Stock otherwise deliverable upon conversion of the Notes outstanding immediately after giving effect to the extent, but only to the extent, that such receipt would cause such Person to become, directly or indirectly, a Beneficial Owner of more than 9.9% of the shares of the Common Stock outstanding at such time (such restriction, the “Ownership Limit”); provided, however, that this Section 13.12 will not apply to any Person that is subject to Section 16(a) or (b) of the Exchange Act with respect to the Company by virtue of being deemed to be a “director” or “officer” of the Company within the meaning of Section 16 of the Exchange Actconversion. For purposes of this Section 13.12 onlythe foregoing sentence, a Person shall be deemed the “Beneficial Owner” aggregate number of and shall be deemed to beneficially own any shares of Common Stock that such Person or any of such Person’s affiliates (as defined in Rule 12b-2 under the Exchange Act) or associates (as defined in Rule 12b-2 under the Exchange Act) is deemed to beneficially own, together with any shares of Common Stock beneficially owned by any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act (including without limitation, any “group” of which such Person is a member). For purposes of this Section 13.12, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act Holder and the rules and regulations promulgated thereunder. For the avoidance of doubt, the term “Beneficial Owner” as used in this Section 13.12 other Attribution Parties shall not include (i) (x) with respect to any Global Note, the nominee of the Depositary or any Person having an account with the Depositary or its nominee, and (y) with respect to any Physical Note, the Holder of such Physical Note unless, in each case of clause (x) and (y), such nominee, account holder or Holder shall also be a Beneficial Owner of such Note; and (ii) the number of shares of Common Stock that held by such Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon conversion of the Notes with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (aA) conversion of the remaining, unconverted portion of any nonconverted Notes beneficially owned by such Person Holder or any of its affiliates or associates and any the other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act (including without limitation, any “group” of which such Person is a member), Attribution Parties and (bB) exercise or conversion of the unexercised or unconverted nonconverted portion of any other securities of the Company’s Company (including, without limitation, any convertible notes, convertible preferred stock or warrants, including the Notes) beneficially owned by such Holder or any other securities Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained herein in this Section 14.13. For purposes of this Section 14.13, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act. For purposes of determining the number of outstanding shares of Common Stock a Holder may acquire upon the conversion of such Notes without exceeding the Maximum Percentage, such Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the Commission, as the case may be, (y) a more recent public announcement by the Company or (z) any other written notice by the Company or the Transfer Agent, if any, setting forth the number of shares of Common Stock outstanding (the “Reported Outstanding Share Number”). If the Company receives a Conversion Notice from a Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall notify such Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Conversion Notice would otherwise cause such Holder’s beneficial ownership, as determined pursuant to this Section 14.13, to exceed the Maximum Percentage, such Holder must notify the Company of a reduced number of shares of Common Stock to be delivered pursuant to such Conversion Notice. For any reason at any time, upon the written or oral request of any Holder, the Company shall within one (1) Business Day confirm orally and in writing or by electronic mail to such 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 such Notes, by such Holder and any other Attribution Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of shares of Common Stock to a Holder upon conversion of such Notes results in such Holder and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which such Holder’s and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and such Holder shall not have the power to vote or to transfer the Excess Shares. Upon delivery of a written notice to the Company, any Holder may from time to time increase (with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease the Maximum Percentage of such Holder to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to such Holder and the other Attribution Parties and not to any other Holder that is not an Attribution Party of such Holder. For purposes of clarity, the shares of Common Stock issuable to a Holder pursuant to the terms of this Indenture in excess of the Maximum Percentage shall not be deemed to be beneficially owned by such Person or Holder for any of its affiliates or associates and any other persons whose beneficial ownership would be aggregated with such Person purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the Exchange Act Act. No prior inability to convert such Notes 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. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 14.13 to the extent necessary to correct this paragraph (including without or any portion of this paragraph) which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 14.13 or to make changes or supplements necessary or desirable to properly give effect to such limitation, . The limitation contained in this paragraph may not be waived and shall apply to a successor holder of such Notes. Neither the Trustee nor the Conversion Agent shall have any “group” responsibility to determine the Maximum Percentage or whether the issuance of which such Person is any shares results in a member)Holder or Attribution Party having Excess Shares or otherwise determine or monitor compliance with the terms of this Section 14.13.

Limits Upon Issuance of Shares of Common Stock Upon Conversion. (aA) Notwithstanding anything to the contrary herein, no Person will be entitled to receive any shares of Common Stock otherwise deliverable upon conversion of the Notes to the extent, but only to the extent, that such receipt would cause such Person to become, directly or indirectly, a Beneficial Owner of more than 9.99.99% of the shares of the Common Stock outstanding at such time (such restriction, the “General Beneficial Ownership Limit”); provided, however, that this Section 13.12 will not apply to any Person that is subject to Section 16(a) or (b) of the Exchange Act with respect to the Company by virtue of being deemed to be a “director” or “officer” of the Company within the meaning of Section 16 of the Exchange Act. For purposes of this Section 13.12 5.09 only, a Person shall be deemed the “Beneficial Owner” of and shall be deemed to beneficially own any shares of Common Stock that such Person or any of such Person’s affiliates (as defined in Rule 12b-2 under the Exchange Act, for purposes of this Section 5.09 only, “Affiliates”)) or associates (as defined in Rule 12b-2 under the Exchange Act, “Associates”)) is deemed to beneficially own, together with any shares of Common Stock beneficially owned by any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act (including without limitationAct. Subject to the following proviso, any “group” of which such Person is a member). For for purposes of the this Section 13.125.09 only, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For thereunder as in effect on the avoidance of doubt, the term “Beneficial Owner” as used in this Section 13.12 shall not include (i) (x) with respect to any Global Note, the nominee of the Depositary or any Person having an account with the Depositary or its nominee, and (y) with respect to any Physical Note, the Holder of such Physical Note unless, in each case of clause (x) and (y), such nominee, account holder or Holder shall also be a Beneficial Owner of such NoteIssue Date; and (ii) provided that the number of shares of Common Stock that would be issuable upon (a) conversion of the remaining, unconverted portion of any Notes beneficially owned by such Person or any of and its affiliates or associates Affiliates and Associates and any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act shall include the number of shares of Common Stock issuable upon exercise or conversion of any of the Company’s securities or rights to acquire the Common Stock, whether or not such securities or rights are currently exercisable or convertible or are exercisable or convertible only after the passage of time (including without limitation, any “group” the number of shares of Common Stock issuable upon conversion of the Notes in respect of which the beneficial ownership determination is being made), but shall exclude the number of shares of Common Stock that would be issuable upon (A) conversion of the remaining, unconverted portion of any Notes beneficially owned by such Person is a member), or any of its Affiliates or Associates and any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act and (bB) exercise or conversion of the unexercised or unconverted portion of any of the Company’s other securities subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by such Person or any of its affiliates Affiliates or associates Associates and any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act Act. For the avoidance of doubt, the term “Beneficial Owner” as used in this Section 5.09 shall not include (including without limitationi) with respect to any Global Note, the nominee of the Depositary or any “group” Person having an account with the Depositary or its nominee or (ii) with respect to any certificated Note, the Holder of which such Person is certificated Note unless, in each case, such nominee, account holder or Holder shall also be a member)Beneficial Owner of such Note.

Limits Upon Issuance of Shares of Common Stock Upon Conversion. (a) Notwithstanding anything The Company shall not effect the conversion of any of the Notes held by a Holder, and such Holder shall not have the right to convert any of the Notes held by such Holder pursuant to the contrary hereinterms and conditions of this Indenture and any such conversion shall be null and void and treated as if never made, no Person will be entitled to receive any the extent that after giving effect to such conversion, such Holder together with the other Attribution Parties collectively would beneficially own in excess of 9.99% (the “Maximum Percentage”) of the shares of Common Stock otherwise deliverable upon conversion of the Notes outstanding immediately after giving effect to the extent, but only to the extent, that such receipt would cause such Person to become, directly or indirectly, a Beneficial Owner of more than 9.9% of the shares of the Common Stock outstanding at such time (such restriction, the “Ownership Limit”); provided, however, that this Section 13.12 will not apply to any Person that is subject to Section 16(a) or (b) of the Exchange Act with respect to the Company by virtue of being deemed to be a “director” or “officer” of the Company within the meaning of Section 16 of the Exchange Actconversion. For purposes of this Section 13.12 onlythe foregoing sentence, a Person shall be deemed the “Beneficial Owner” aggregate number of and shall be deemed to beneficially own any shares of Common Stock that such Person or any of such Person’s affiliates (as defined in Rule 12b-2 under the Exchange Act) or associates (as defined in Rule 12b-2 under the Exchange Act) is deemed to beneficially own, together with any shares of Common Stock beneficially owned by any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act (including without limitation, any “group” of which such Person is a member). For purposes of this Section 13.12, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act Holder and the rules and regulations promulgated thereunder. For the avoidance of doubt, the term “Beneficial Owner” as used in this Section 13.12 other Attribution Parties shall not include (i) (x) with respect to any Global Note, the nominee of the Depositary or any Person having an account with the Depositary or its nominee, and (y) with respect to any Physical Note, the Holder of such Physical Note unless, in each case of clause (x) and (y), such nominee, account holder or Holder shall also be a Beneficial Owner of such Note; and (ii) the number of shares of Common Stock that held by such Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon conversion of the Notes with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (aA) conversion of the remaining, unconverted portion of any nonconverted Notes beneficially owned by such Person Holder or any of its affiliates or associates and any the other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act (including without limitation, any “group” of which such Person is a member), Attribution Parties and (bB) exercise or conversion of the unexercised or unconverted nonconverted portion of any other securities of the Company’s Company (including, without limitation, any convertible notes, convertible preferred stock or warrants, including the Notes and the Initial Warrants) beneficially owned by such Holder or any other securities Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained herein in this Section 14.13. For purposes of this Section 14.13, beneficial ownership shall be calculated in accordance with Section 13(d) of the 1934 Act. For purposes of determining the number of outstanding shares of Common Stock a Holder may acquire upon the conversion of such Warrants without exceeding the Maximum Percentage, such Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the Commission, as the case may be, (y) a more recent public announcement by the Company or (z) any other written notice by the Company or the Transfer Agent, if any, setting forth the number of shares of Common Stock outstanding (the “Reported Outstanding Share Number”). If the Company receives a Conversion Notice from a Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall notify such Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Conversion Notice would otherwise cause such Holder’s beneficial ownership, as determined pursuant to this Section 14.13, to exceed the Maximum Percentage, such Holder must notify the Company of a reduced number of shares of Common Stock to be purchased pursuant to such Conversion Notice. For any reason at any time, upon the written or oral request of any Holder, the Company shall within one (1) Business Day confirm orally and in writing or by electronic mail to such 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 such Notes, by such Holder and any other Attribution Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of shares of Common Stock to a Holder upon conversion of such Notes results in such Holder and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the 1934 Act), the number of shares so issued by which such Holder’s and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and such Holder shall not have the power to vote or to transfer the Excess Shares. Upon delivery of a written notice to the Company, any Holder may from time to time increase (with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease the Maximum Percentage of such Holder to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to such Holder and the other Attribution Parties and not to any other Holder that is not an Attribution Party of such Holder. For purposes of clarity, the shares of Common Stock issuable to a Holder pursuant to the terms of this Indenture in excess of the Maximum Percentage shall not be deemed to be beneficially owned by such Person or Holder for any of its affiliates or associates and any other persons whose beneficial ownership would be aggregated with such Person purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the Exchange Act 1934 Act. No prior inability to convert such Notes 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. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 14.13 to the extent necessary to correct this paragraph (including without or any portion of this paragraph) which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 14.13 or to make changes or supplements necessary or desirable to properly give effect to such limitation, . The limitation contained in this paragraph may not be waived and shall apply to a successor holder of such Notes. Neither the Trustee nor the Conversion Agent shall have any “group” responsibility to determine the Maximum Percentage or whether the issuance of which such Person is any shares results in a member)Holder or Attribution Party having Excess Shares or otherwise determine or monitor compliance with the terms of this Section 14.13.

Limits Upon Issuance of Shares of Common Stock Upon Conversion. (a) Notwithstanding anything to the contrary herein, no Person will be entitled to receive any shares of Common Stock otherwise deliverable upon conversion of the Notes to the extent, but only to the extent, that such receipt would cause such Person to become, directly or indirectly, a Beneficial Owner of more than 9.919.99% of the shares of the Common Stock outstanding at such time (such restriction, the “General Beneficial Ownership Limit”); provided, however, that this Section 13.12 will not apply to any Person that is subject to Section 16(a) or (b) of the Exchange Act with respect to the Company by virtue of being deemed to be a “director” or “officer” of the Company within the meaning of Section 16 of the Exchange Act. For purposes of this Section 13.12 14.12 only, a Person shall be deemed the “Beneficial Owner” of and shall be deemed to beneficially own any shares of Common Stock that such Person or any of such Personperson’s affiliates Affiliates (as defined in Rule 12b-2 under the Exchange Act) or associates (as defined in Rule 12b-2 under the Exchange Act) is deemed to beneficially own, together with any shares of Common Stock beneficially owned by any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act (including without limitationAct. Subject to the following proviso, any “group” of which such Person is a member). For for purposes of this Section 13.1214.12 only, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For thereunder as in effect on the avoidance date hereof; provided that the number of doubt, the term “Beneficial Owner” as used in this shares of Common Stock beneficially owned by such Person and its Affiliates and associates and any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13.12 shall not include (i13(d) (x) with respect to any Global Note, the nominee of the Depositary Exchange Act shall include the number of shares of Common Stock issuable upon exercise or conversion of any Person having an account with of the Depositary Company’s securities or its nomineerights to acquire the Common Stock, and whether or not such securities or rights are currently exercisable or convertible or are exercisable or convertible only after the passage of time (y) with including the number of shares of Common Stock issuable upon conversion of the Notes in respect to any Physical Note, of which the Holder of such Physical Note unless, in each case of clause (x) and (ybeneficial ownership determination is being made), such nominee, account holder or Holder but shall also be a Beneficial Owner of such Note; and (ii) exclude the number of shares of Common Stock that would be issuable upon (aA) conversion of the remaining, unconverted portion of any Notes beneficially owned by such Person or any of its affiliates Affiliates or associates and any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act (including without limitation, any “group” of which such Person is a member), and (bB) exercise or conversion of the unexercised or unconverted portion of any of the Company’s other securities subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by such Person or any of its affiliates Affiliates or associates and any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act Act. For the avoidance of doubt, the term “Beneficial Owner” as used in this Section 14.12 shall not include (including without limitationi) with respect to any Global Note, the nominee of the Depositary or any “group” Person having an account with the Depositary or its nominee or (ii) with respect to any Physical Note, the Holder of which such Person is Physical Note unless, in each case, such nominee, account holder or Holder shall also be a member)Beneficial Owner of such Note.

Limits Upon Issuance of Shares of Common Stock Upon Conversion. (aA) Notwithstanding anything to the contrary herein, no Person will be entitled to receive any shares of Common Stock otherwise deliverable upon conversion of the Notes to the extent, but only to the extent, that such receipt would cause such Person to become, directly or indirectly, a Beneficial Owner of more than 9.99.99% of the shares of the Common Stock outstanding at such time (such restriction, the “General Beneficial Ownership Limit”); provided, however, that this Section 13.12 will not apply to any Person that is subject to Section 16(a) or (b) of the Exchange Act with respect to the Company by virtue of being deemed to be a “director” or “officer” of the Company within the meaning of Section 16 of the Exchange Act. For purposes of this Section 13.12 ‎Section 5.11 only, a Person shall will be deemed the “Beneficial Owner” of and shall will be deemed to beneficially own any shares of Common Stock that such Person or any of such Personperson’s affiliates Affiliates (as defined in Rule 12b-2 under the Exchange Act) or associates (as defined in Rule 12b-2 under the Exchange Act) is deemed to beneficially own, together with any shares of Common Stock beneficially owned by any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act (including without limitationAct. Subject to the following proviso, any “group” of which such Person is a member). For for purposes of the this Section 13.12‎Section 5.11 only, beneficial ownership shall will be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For thereunder as in effect on the avoidance Issue Date; provided that the number of doubt, the term “Beneficial Owner” as used in this shares of Common Stock beneficially owned by such Person and its Affiliates and associates and any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13.12 shall not include (i13(d) (x) with respect to any Global Note, the nominee of the Depositary Exchange Act will include the number of shares of Common Stock issuable upon exercise or conversion of any Person having an account with of the Depositary Company’s securities or its nomineerights to acquire the Common Stock, and whether or not such securities or rights are currently exercisable or convertible or are exercisable or convertible only after the passage of time (y) with including the number of shares of Common Stock issuable upon conversion of the Notes in respect to any Physical Note, of which the Holder of such Physical Note unless, in each case of clause (x) and (ybeneficial ownership determination is being made), such nominee, account holder or Holder shall also be a Beneficial Owner of such Note; and (ii) but will exclude the number of shares of Common Stock that would be issuable upon (aA) conversion of the remaining, unconverted portion of any Notes beneficially owned by such Person or any of its affiliates Affiliates or associates and any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act (including without limitation, any “group” of which such Person is a member), and (bB) exercise or conversion of the unexercised or unconverted portion of any of the Company’s other securities subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by such Person or any of its affiliates Affiliates or associates and any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act Act. For the avoidance of doubt, the term “Beneficial Owner” as used in this ‎Section 5.11 will not include (including without limitationi) with respect to any Global Note, the nominee of the Depositary or any “group” Person having an account with the Depositary or its nominee or (ii) with respect to any certificated Note, the Holder of which such Person is certificated Note unless, in each case, such nominee, account holder or Holder will also be a member)Beneficial Owner of such Note.

Limits Upon Issuance of Shares of Common Stock Upon Conversion. (a) Notwithstanding anything to the contrary herein, no Person will be entitled to receive any shares of Common Stock otherwise deliverable upon conversion of the Notes to the extent, but only to the extent, that such receipt would cause such Person to become, directly or indirectly, a Beneficial Owner of more than 9.99.99% of the shares of the Common Stock outstanding at such time (such restriction, the “General Beneficial Ownership Limit”); provided, however, that this Section 13.12 will not apply to any Person that is subject to Section 16(a) or (b) of the Exchange Act with respect to the Company by virtue of being deemed to be a “director” or “officer” of the Company within the meaning of Section 16 of the Exchange Act. For purposes of this Section 13.12 11.04 only, a Person shall be deemed the “Beneficial Owner” of and shall be deemed to beneficially own any shares of Common Stock that such Person or any of such Personperson’s affiliates Affiliates (as defined in Rule 12b-2 under the Exchange Act) or associates (as defined in Rule 12b-2 under the Exchange Act) is deemed to beneficially own, together with any shares of Common Stock beneficially owned by any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act (including without limitationAct. Subject to the following proviso, any “group” of which such Person is a member). For for purposes of the this Section 13.1211.04 only, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For thereunder as in effect on the avoidance Issue Date; provided that the number of doubt, the term “Beneficial Owner” as used in this shares of Common Stock beneficially owned by such Person and its Affiliates and associates and any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13.12 shall not include (i13(d) (x) with respect to any Global Note, the nominee of the Depositary Exchange Act shall include the number of shares of Common Stock issuable upon exercise or conversion of any Person having an account with of the Depositary Company’s securities or its nomineerights to acquire the Common Stock, and whether or not such securities or rights are currently exercisable or convertible or are exercisable or convertible only after the passage of time (y) with including the number of shares of Common Stock issuable upon conversion of the Notes in respect to any Physical Note, of which the Holder of such Physical Note unless, in each case of clause (x) and (ybeneficial ownership determination is being made), such nominee, account holder or Holder but shall also be a Beneficial Owner of such Note; and (ii) exclude the number of shares of Common Stock that would be issuable upon (aA) conversion of the remaining, unconverted portion of any Notes beneficially owned by such Person or any of its affiliates Affiliates or associates and any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act (including without limitation, any “group” of which such Person is a member), and (bB) exercise or conversion of the unexercised or unconverted portion of any of the Company’s other securities subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by such Person or any of its affiliates Affiliates or associates and any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act Act. For the avoidance of doubt, the term “Beneficial Owner” as used in this Section 11.04 shall not include (including without limitationi) with respect to any Global Note, the nominee of the Depositary or any “group” Person having an account with the Depositary or its nominee or (ii) with respect to any certificated Note, the Holder of which such Person is certificated Note unless, in each case, such nominee, account holder or Holder shall also be a member)Beneficial Owner of such Note.