Common use of Market Regulation Clause in Contracts

Market Regulation. Unless and until the Stockholder Approval (as defined in the Exchange Agreement) has been obtained, the Company shall not be obligated to issue any shares of Common Stock upon conversion of this Note or otherwise pursuant to the terms of this Note if the issuance of such shares of Common Stock combined with the issuance of shares of Common Stock pursuant to the other Securities (as defined in the Exchange Agreement) and shares of Common Stock underlying warrants issued to TPG Specialty Lending, Inc. or an affiliate thereof on or about the Closing Date (the “Warrants”), together with such shares of Common Stock issued or issuable pursuant to the Other Agreements (as defined in the Exchange Agreement) would, in the aggregate, exceed 9,645,043 shares of Common Stock (as adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction) (which is less than 20% of 48,225,219 shares of Common Stock outstanding on the date hereof) (the “Exchange Cap”). Until such Stockholder Approval is obtained, (x) at any time during the Additional Common Shares Measurement Period (as defined in the Exchange Agreement), the Company shall not be obligated to issue any shares of Common Stock upon conversion of this Note or otherwise pursuant to the terms of this Note, and (y) at any time after the Additional Common Shares Measurement Period, no holder of the Notes shall be issued in the aggregate, upon conversion of Notes, shares of Common Stock in an amount greater than the product of (A) 80% of the Remaining Exchange Cap (as defined in the Exchange Agreement), multiplied by (B) such Holder’s Pro Rata Portion (with respect to each such holder of the Notes, the “Exchange Cap Allocation”). In the event that any holder of the Notes shall sell or otherwise transfer any of such holder’s Notes, the transferee shall be allocated a pro rata portion of such holder’s Exchange Cap Allocation, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation allocated to such transferee. In the event that any holder of Notes shall convert all of such holder’s Notes into a number of shares of Common Stock which, in the aggregate, is less than such holder’s Exchange Cap Allocation, then the difference between such holder’s Exchange Cap Allocation and the number of shares of Common Stock actually issued to such holder shall be allocated to the respective Exchange Cap Allocations of the remaining holders of Notes on a pro rata basis in proportion to the aggregate principal amount of the Notes then held by each such holder. This Exchange Cap limitation shall in no way limit the application of the Conversion Price Adjustment provisions of Section 7 of the Notes other than in respect of the number of shares of Common Stock which may be issued by the Company as a result of a conversion thereunder. For the purpose of this Note, “Pro Rata Portion” shall mean the quotient obtained by dividing (x) the aggregate principal amount of the Holder’s Original Series Notes outstanding immediately prior to the consummation of the transactions contemplated by the Exchange Agreement and the Other Agreements by (y) the aggregate principal balance of the Original Series Notes held by all Investors outstanding immediately prior to the consummation of the transactions contemplated by the Exchange Agreement and the Other Agreements.

Market Regulation. Unless and until the Stockholder Approval (as defined in the Exchange Agreement) has been obtained, the The Company shall not be obligated to issue any shares of Common Stock upon conversion of this Note or otherwise pursuant to the terms of this Note if the issuance of such shares of Common Stock combined with would exceed the issuance aggregate number of shares of Common Stock pursuant to which the other Securities (as defined in Company may issue upon conversion of the Exchange Agreement) and shares Notes without breaching the Company’s obligations under the rules or regulations of Common Stock underlying warrants issued to TPG Specialty Lending, Inc. or an affiliate thereof on or about the Closing Date (the “Warrants”), together with such shares of Common Stock issued or issuable pursuant to the Other Agreements (as defined in the Exchange Agreement) would, in the aggregate, exceed 9,645,043 shares of Common Stock (as adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction) (which is less than 20% of 48,225,219 shares of Common Stock outstanding on the date hereof) Principal Market (the “Exchange Cap”), except that such limitation shall not apply in the event that the Company (A) obtains the approval of its stockholders PORTSIDE — 4.99% HIGHBRIDGE — 4.99% LB I — 9.99% UBS — 4.99% AISLING — 9.99% as required by the applicable rules of such Principal Market for issuances of Common Stock in excess of such amount or (B) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory to the Required Holders. Until such Stockholder Approval approval or written opinion is obtained, (x) at any time during no purchaser of the Additional Common Shares Measurement Period (as defined in the Exchange Agreement), the Company shall not be obligated to issue any shares of Common Stock upon conversion of this Note or otherwise Notes pursuant to the terms of this Note, and Securities Purchase Agreement (ythe “Purchasers”) at any time after the Additional Common Shares Measurement Period, no holder of the Notes shall be issued in the aggregate, upon conversion of Notes, shares of Common Stock in an amount greater than the product of (A) 80% of the Remaining Exchange Cap (as defined in the Exchange Agreement), multiplied by (B) such Holder’s Pro Rata Portion a fraction, the numerator of which is the principal amount of Notes issued to a Purchaser pursuant to the Securities Purchase Agreement on the Closing Date and the denominator of which is the aggregate principal amount of all Notes issued to the Purchasers pursuant to the Securities Purchase Agreement on the Closing Date (with respect to each such holder of the NotesPurchaser, the “Exchange Cap Allocation”). In the event that any holder of the Notes Purchaser shall sell or otherwise transfer any of such holderPurchaser’s Notes, the transferee shall be allocated a pro rata portion of such holderPurchaser’s Exchange Cap Allocation, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation allocated to such transferee. In the event that any holder of Notes shall convert all of such holder’s Notes into a number of shares of Common Stock which, in the aggregate, is less than such holder’s Exchange Cap Allocation, then the difference between such holder’s Exchange Cap Allocation and the number of shares of Common Stock actually issued to such holder shall be allocated to the respective Exchange Cap Allocations of the remaining holders of Notes on a pro rata basis in proportion to the aggregate principal amount of the Notes then held by each such holder. This Exchange Cap limitation shall in no way limit the application of the Conversion Price Adjustment provisions of Section 7 of the Notes other than in respect of the number of shares of Common Stock which may be issued by the Company as a result of a conversion thereunder. For the purpose of this Note, “Pro Rata Portion” shall mean the quotient obtained by dividing (x) the aggregate principal amount of the Holder’s Original Series Notes outstanding immediately prior to the consummation of the transactions contemplated by the Exchange Agreement and the Other Agreements by (y) the aggregate principal balance of the Original Series Notes held by all Investors outstanding immediately prior to the consummation of the transactions contemplated by the Exchange Agreement and the Other Agreements.

Market Regulation. Unless and until the Stockholder Approval (as defined in the Exchange Agreement) has been obtained, the The Company shall not be obligated to issue any shares of Common Stock upon conversion exercise of this Note or otherwise pursuant to Warrant, and the terms Holder of this Note Warrant shall not have the right to receive upon exercise of this Warrant any Common Stock, if the issuance of such shares Common Stock would exceed that number of Common Stock combined with which the issuance Company may issue upon exercise, redemption or conversion, as applicable, of the Warrants or otherwise without breaching the Company’s obligations under the rules or regulations of the applicable Trading Market (the number of shares of Common Stock pursuant to the other Securities (as defined in the Exchange Agreement) which may be issued without violating such rules and shares of Common Stock underlying warrants issued to TPG Specialty Lendingregulations, Inc. or an affiliate thereof on or about the Closing Date (the “Warrants”), together with such shares of Common Stock issued or issuable pursuant to the Other Agreements (as defined in the Exchange Agreement) would, in the aggregate, exceed 9,645,043 shares of Common Stock (as adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction) (which is less than 20% of 48,225,219 shares of Common Stock outstanding on the date hereof) (the “Exchange Cap”), except that such limitation shall not apply in the event that the Company (A) obtains the approval of its stockholders as required by the applicable rules of the applicable Trading Market for issuances of Common Stock in excess of such amount or (B) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory to the Holders. Until Unless and until such Stockholder Approval approval or written opinion is obtained, (x) at any time during the Additional Common Shares Measurement Period (as defined in the Exchange Agreement), the Company shall not be obligated to issue any shares of Common Stock upon conversion of this Note or otherwise pursuant to the terms of this Note, and (y) at any time after the Additional Common Shares Measurement Period, no holder of the Notes Holder shall be issued in the aggregate, upon conversion exercise or conversion, as applicable, of Notesany Warrant, shares of Common Stock in an amount greater than the product of (A) 80% of the Remaining Exchange Cap (as defined in the Exchange Agreement), multiplied by (B) a fraction, the numerator of which is the total number of Common Stock underlying the Warrants issued to such Holder’s Pro Rata Portion Holder pursuant to the Purchase Agreement on the date hereof and the denominator of which is the aggregate number of Common Stock underlying the Warrants issued to the Holder pursuant to the Purchase Agreement on the date hereof (with respect to each such holder of the NotesInvestor, the “Exchange Cap Allocation”). In the event that any holder of the Notes Investor shall sell or otherwise transfer any of such holderHolder’s NotesWarrants, the transferee shall be allocated a pro rata portion of such holderHolder’s Exchange Cap Allocation, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation allocated to such transferee. In the event that any holder of Notes Warrants shall convert exercise all of such holder’s Notes Warrants into a number of shares of Common Stock which, in the aggregate, is less than such holder’s Exchange Cap Allocation, then the difference between such holder’s Exchange Cap Allocation and the number of shares of Common Stock actually issued to such holder shall be allocated to the respective Exchange Cap Allocations of the remaining holders of Notes Warrants on a pro rata basis in proportion to the aggregate principal amount of Common Stock underlying the Notes Warrants then held by each such holder. This Exchange Cap limitation shall in no way limit the application of the Conversion Price Adjustment provisions of Section 7 of the Notes other than in respect of the number of shares of Common Stock which may be issued by the Company as a result of a conversion thereunder. For the purpose of this Note, “Pro Rata Portion” shall mean the quotient obtained by dividing (x) the aggregate principal amount of the Holder’s Original Series Notes outstanding immediately prior to the consummation of the transactions contemplated by the Exchange Agreement and the Other Agreements by (y) the aggregate principal balance of the Original Series Notes held by all Investors outstanding immediately prior to the consummation of the transactions contemplated by the Exchange Agreement and the Other Agreements.