Common use of Maximum Conversion Clause in Contracts

Maximum Conversion. A Subscriber shall not be entitled to convert on a Conversion Date that amount of a New Note nor may the Company make any payment including principal, interest, or liquidated or other damages by delivery of Conversion Shares in connection with that number of Conversion Shares which would be in excess of the sum of (i) the number of shares of Common Stock beneficially owned by such Subscriber and its Affiliates on a Conversion Date or payment date, and (ii) the number of Conversion Shares issuable upon the conversion of the New Note with respect to which the determination of this provision is being made on a calculation date, which would result in beneficial ownership by Subscriber and its Affiliates of more than 4.99% of the outstanding shares of Common Stock of the Company on such Conversion Date. For the purposes of the immediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and Rule 13d-3 thereunder. Subject to the foregoing, the Subscriber shall not be limited to aggregate conversions of only 4.99% and aggregate conversions by the Subscriber may exceed 4.99%. To the extent that the limitation contained in this Section 7.3 applies, the determination of whether a New Note is convertible (in relation to other securities owned by the Subscriber together with any Affiliates) and of which a portion of a New Note is convertible shall be in the sole discretion of the Subscriber, and the submission of a Conversion Notice shall be deemed to be the Subscriber’s determination of whether a New Note is convertible (in relation to other securities owned by the Subscriber together with any Affiliates) and of which portion of a New Note is exercisable, in each case subject to such aggregate percentage limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination. The Subscriber may modify the permitted beneficial ownership amount upon and effective after 61 days prior written notice to the Company. Subscriber may allocate which of the equity of the Company deemed beneficially owned by Subscriber shall be included in the 4.99% amount described above and which shall be allocated to the excess above 4.99%.

Maximum Conversion. A Subscriber shall not be entitled to convert on a Conversion Date that amount of a New Note nor may the Company make any payment including principal, interest, or liquidated or other damages by delivery of Conversion Shares in connection with that number of Conversion Shares which would be in excess of the sum of (i) the number of shares of Common Stock beneficially owned by such Subscriber and its Affiliates on a Conversion Date or payment date, and (ii) the number of Conversion Shares issuable upon the conversion of the New Note with respect to which the determination of this provision is being made on a calculation date, which would result in beneficial ownership by Subscriber and its Affiliates of more than 4.99% of the outstanding shares of Common Stock of the Company on such Conversion Date. Subscriber shall notify Company if any conversion less than 4.99% of the outstanding shares of Common Stock will cause an issuance of Conversion Shares that breaches the prior sentence and the Company shall be deemed not to have breached the covenant of the prior sentence if it does not receive such notice. For the purposes of the immediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and Rule 13d-3 thereunder. Subject to the foregoing, the Subscriber shall not be limited to aggregate conversions of only 4.99% and aggregate conversions by the Subscriber may exceed 4.99%. To the extent that the limitation contained in this Section 7.3 applies, the determination of whether a New Note is convertible (in relation to other securities owned by the Subscriber together with any Affiliates) and of which a portion of a New Note is convertible shall be in the sole discretion of the Subscriber, and the submission of a Conversion Notice shall be deemed to be the Subscriber’s determination of whether a New Note is convertible (in relation to other securities owned by the Subscriber together with any Affiliates) and of which portion of a New Note is exercisable, in each case subject to such aggregate percentage limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination. The Subscriber may modify increase the permitted beneficial ownership amount up to 9.99% upon and effective after 61 days prior written notice to the Company. Subscriber may allocate which of the equity of the Company deemed beneficially owned by Subscriber shall be included in the 4.99% amount described above and which shall be allocated to the excess above 4.99%.

Maximum Conversion. A Subscriber shall not be entitled to convert on a Conversion Date that amount of a New Note nor may the Company make any payment including principal, interest, or liquidated or other damages by delivery of Conversion Shares in connection with that number of Conversion Shares which would be in excess of the sum of (i) the number of shares of Common Stock beneficially owned by such Subscriber and its Affiliates on a Conversion Date or payment date, and (ii) the number of Conversion Shares issuable upon the conversion of the New Note with respect to which the determination of this provision is being made on a calculation date, which would result in beneficial ownership by Subscriber and its Affiliates of more than 4.99% of the outstanding shares of Common Stock of the Company on such Conversion Date. For the purposes of the immediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and Rule 13d-3 thereunder. Subject to the foregoing, the Subscriber shall not be limited to aggregate conversions of only 4.99% and aggregate conversions by the Subscriber may exceed 4.99%. To the extent that the limitation contained in this Section 7.3 applies, the determination of whether a New Note is convertible (in relation to other securities owned by the Subscriber together with any Affiliates) and of which a portion of a New Note is convertible shall be in the sole discretion of the Subscriber, and the submission of a Conversion Notice shall be deemed to be the Subscriber’s determination of whether a New Note is convertible (in relation to other securities owned by the Subscriber together with any Affiliates) and of which portion of a New Note is exercisable, in each case subject to such aggregate percentage limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination. The Subscriber may modify increase the permitted beneficial ownership amount up to 9.99% upon and effective after 61 days prior written notice to the Company. Subscriber may allocate which of the equity of the Company deemed beneficially owned by Subscriber shall be included in the 4.99% amount described above and which shall be allocated to the excess above 4.99%. Subscriber agrees that the total number of shares of the Company’s common stock issuable upon any and all conversions of the Note and exercise of the Warrants may not exceed 19.99% (the Numeric Limitation”) of the total issued and outstanding shares of the Company’s outstanding common stock immediately following such exercise, unless the exercise terms of such Note and Warrants are approved by the Company’s common stockholders. The Company represents and agrees that the Numeric Limitation equals not less than 4,059,600 shares of the Company’s Common Stock. The Company further represents that it will not take any action which will result in the impairment or a decrease in the Numeric Limitation to Subscriber. Subscriber shall have the absolute right to elect the allocation of the Numeric Limitation to Conversion Shares and/or Warrant Shares. In the event Subscriber sells, transfers or otherwise disposes of the Note or Warrants to a third party, the beneficial ownership and transfer restrictions set forth in this section shall be binding upon such third party.

Maximum Conversion. Neither the Holder nor any other holder (including any Affiliate of the Holder) of all or a portion of the Note shall be entitled to convert that amount of a Note or Notes in connection with that number of shares of Common Stock which would result in the aggregate beneficial ownership after giving effect to all prior conversions of any portion of the Note by the Purchase or any Holder (including for this purpose all shares of Common Stock received or to be received upon conversion of the Note, even if such shares of Common Stock are no longer beneficially owned) by the Holder and any Holder as a group of more than 4.99% on a Conversion Date (as adjusted for stock splits, stock dividends, combinations or other recapitalizations). A Subscriber Holder may void the conversion limitation described in this Section 4.3 upon an Event of Default under the Note. For the purposes of hereof, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and Regulation 13d-3 thereunder. Holder shall not be entitled to convert on a Conversion Date that amount of a New the Note nor may the Company make any payment including principal, interest, or liquidated or other damages by delivery of Conversion Shares in connection with that number of Conversion Shares shares of Common Stock which would be in excess of the sum of (i) the number of shares of Common Stock beneficially owned by such Subscriber and its Affiliates the Holder on a Conversion Date or payment dateDate, and (ii) the number of Conversion Shares shares of Common Stock issuable upon the conversion of the New Note with respect to which the determination of this provision proviso is being made on a calculation dateConversion Date, which would result in beneficial ownership by Subscriber and its Affiliates the Holder of more than 4.99% of the outstanding shares of Common Stock of the Company Borrower on such Conversion Date. For the purposes of the proviso to the immediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and Rule Regulation 13d-3 thereunder. Subject to the foregoing, the Subscriber a Holder shall not be limited to aggregate conversions of only 4.99% and aggregate conversions by the Subscriber may exceed 4.99%. To A Holder may void the extent that the conversion limitation contained described in this Section 7.3 applies, the determination of whether a New Note is convertible (in relation to other securities owned by the Subscriber together with any Affiliates) and of which a portion of a New Note is convertible shall be in the sole discretion of the Subscriber, and the submission of a Conversion Notice shall be deemed to be the Subscriber’s determination of whether a New Note is convertible (in relation to other securities owned by the Subscriber together with any Affiliates) and of which portion of a New Note is exercisable, in each case subject to such aggregate percentage limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination. The Subscriber may modify the permitted beneficial ownership amount 8.3 upon and effective after 61 75 days prior written notice to the CompanyBorrower or upon an Event of Default under the Note. Subscriber A Holder may allocate which of the equity of the Company Borrower deemed beneficially owned by Subscriber such Holder shall be included in the 4.99% amount described above and which shall be allocated to the excess above 4.99%.

Maximum Conversion. A Subscriber shall not be entitled (a) Notwithstanding anything to convert on a Conversion Date that amount of a New Note nor may the Company make any payment including principalcontrary contained herein, interest, or liquidated or other damages by delivery of Conversion Shares in connection with that the number of Conversion Shares which would that may be acquired by the Holder upon conversion of this Debenture (or otherwise in excess of respect hereof) shall be limited to the sum of extent necessary to ensure that, following such conversion (i) or other issuance), the total number of shares of Common Stock then beneficially owned by such Subscriber Holder and its Affiliates on a Conversion Date or payment date, affiliates and (iiany other persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) the number of Conversion Shares issuable upon the conversion of the New Note with respect to which the determination of this provision is being made on a calculation date1934 Act, which would result in beneficial ownership by Subscriber and its Affiliates of more than does not exceed 4.99% of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of the Company on Common Stock issuable upon such Conversion Dateconversion). For the purposes of the immediately preceding sentencesuch purposes, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange 1934 Act of 1934, as amended, and Rule 13d-3 the rules and regulations promulgated thereunder. Subject For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its affiliates shall include the number of shares of Common Stock issuable upon conversion of the Debentures with respect to which the determination of such sentence is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (A) conversion of the remaining, non-converted portion of the Debentures beneficially owned by the Holder or any of its affiliates and (B) exercise or conversion of the unexercised or non-converted portion of any other securities of the Company (including, without limitation, any other Debentures) subject to a limitation on conversion or exercise analogous to the foregoing, the Subscriber shall not be limited to aggregate conversions of only 4.99% and aggregate conversions limitation contained herein beneficially owned by the Subscriber may exceed 4.99%Holder or any of its affiliates. Except as set forth in the preceding sentence, for purposes of this Section 2.11, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act. To the extent that the limitation contained in this Section 7.3 2.11 applies, the determination of whether a New Note is the Debentures are convertible (in relation to other securities owned by the Subscriber together with any Affiliates) and of which a portion of a New Note the Debenture is convertible shall be in the sole discretion of such Holder. To ensure compliance with this restriction, the Subscriber, and the submission of a Conversion Notice shall Holder will be deemed to be represent to the Subscriber’s determination Company each time it delivers a Notice of whether a New Note is convertible (Conversion that such Notice of Conversion has not violated the restrictions set forth in relation to other securities owned by the Subscriber together with any Affiliates) and of which portion of a New Note is exercisable, in each case subject to such aggregate percentage limitation, this paragraph and the Company shall have no obligation to verify or confirm the accuracy of such determination. For purposes of this Section 2.11, in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Form 10-Q or Form 10-K (or such related form), as the case may be, (y) a more recent public announcement by the Company or (z) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of the Holder, the Company shall within two Trading Days confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including the Debentures, by the Holder or its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. The Subscriber provisions of this Section 2.11 may modify be waived by the permitted beneficial ownership amount upon and effective after Holder upon, at the election of the Holder, not less than 61 days days’ prior written notice to the Company. Subscriber , and the provisions of this Section 2.11 shall continue to apply until such 61st day (or such later date, as determined by the Holder, as may allocate which be specified in such notice of the equity of the Company deemed beneficially owned by Subscriber shall be included in the 4.99% amount described above and which shall be allocated to the excess above 4.99%waiver).

Maximum Conversion. A Subscriber shall not be entitled to convert on a Conversion Date that amount of a New Note nor may the Company make any payment including principal, interest, or liquidated or other damages by delivery of Conversion Shares in connection with that number of Conversion Shares which would be in excess of the sum of (i) the number of shares of Common Stock beneficially owned by such Subscriber and its Affiliates on a Conversion Date or payment date, and (ii) the number of Conversion Shares issuable upon the conversion of the New Note with respect to which the determination of this provision is being made on a calculation date, which would result in beneficial ownership by Subscriber and its Affiliates of more than 4.99% of the outstanding shares of Common Stock of the Company on such Conversion Date. For the purposes of the immediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and Rule 13d-3 thereunder. Subject to the foregoing, the Subscriber shall not be limited to aggregate conversions of only 4.99% and aggregate conversions by the Subscriber may exceed 4.99%. To The Subscriber shall have the extent that authority to determine whether the limitation restriction contained in this Section 7.3 applies, the determination of whether a New Note is convertible (in relation to other securities owned by the Subscriber together with will limit any Affiliates) and of which a portion conversion of a New Note is convertible shall be in the sole discretion of the Subscriber, and the submission of a Conversion Notice shall be deemed extent such limitation applies and to be the Subscriber’s determination of whether a New Note is which convertible (in relation to other securities owned by the Subscriber together with any Affiliates) and of which portion of a New Note is exercisable, in each case subject to or exercisable instrument or part thereof such aggregate percentage limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determinationlimitation applies. The Subscriber may modify waive the application of the permitted beneficial ownership amount, including with respect to payment of interest in shares of Common Stock, or increase the permitted beneficial ownership amount, by designating such higher amount on such Subscriber’s signature page to this Agreement and also following the Closing upon and effective after 61 days prior written notice to the Company. Subscriber may allocate which of the equity of the Company deemed beneficially owned by Subscriber shall be included in the 4.99% permitted beneficial ownership amount described above and which shall be allocated to the excess above 4.99%the permitted beneficial ownership amount as described above.

Maximum Conversion. A The Subscriber shall not be entitled to convert on a Conversion Date that amount of a New the Note nor may the Company make any payment including principal, interest, or liquidated or other damages by delivery of Conversion Shares in connection with that number of Conversion Shares shares of Common Stock which would be in excess of the sum of (i) the number of shares of Common Stock beneficially owned by such the Subscriber and its Affiliates affiliates on a Conversion Date or payment dateDate, and (ii) the number of Conversion Shares shares of Common Stock issuable upon the conversion of the New Note with respect to which the determination of this provision proviso is being made on a calculation dateConversion Date, which would result in beneficial ownership by the Subscriber and its Affiliates affiliates of more than 4.99% of the outstanding shares of Common Stock of the Company on such Conversion Date. For the purposes of the proviso to the immediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and Rule Regulation 13d-3 thereunder. Subject to the foregoing, the Subscriber shall not be limited to aggregate conversions of only 4.99% and aggregate conversions by the Subscriber may exceed 4.99%. To the extent that the limitation contained in this Section 7.3 applies, the determination of whether a New Note is convertible (in relation to other securities owned by the Subscriber together with any Affiliates) and of which a portion of a New Note is convertible shall be in the sole discretion of the Subscriber, and the submission of a Conversion Notice shall be deemed to be the Subscriber’s determination of whether a New Note is convertible (in relation to other securities owned by the Subscriber together with any Affiliates) and of which portion of a New Note is exercisable, in each case subject to such aggregate percentage limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination. The Subscriber may modify void the permitted beneficial ownership amount conversion limitation described in this Section 9.3 upon and effective after 61 75 days prior written notice to the Company. The Subscriber may allocate which of the equity of the Company deemed beneficially owned by the Subscriber shall be included in the 4.99% amount described above and which shall be allocated to the excess above 4.99%. 9.4. Injunction — Posting of Bond. In the event a Subscriber shall elect to convert a Note or part thereof, the Company may not refuse conversion based on any claim that such Subscriber or any one associated or affiliated with such Subscriber has been engaged in any violation of law, or any other reason, unless, an injunction from a court, on notice, restraining and or enjoining conversion of all or part of said Note shall have been sought and obtained and the Company posts a surety bond for the benefit of such Subscriber in the amount of 130% of the amount of the Note, which is subject to the injunction, which bond shall remain in effect until the completion of arbitration/litigation of the dispute and the proceeds of which shall be payable to such Subscriber to the extent it obtains judgment. 9.5.

Maximum Conversion. A Subscriber shall not be entitled to convert on a Conversion Date that amount of a New Note nor may the Company make any payment including principal, interest, or liquidated or other damages by delivery of Conversion Shares in connection with that number of Conversion Shares which would be in excess of the sum of (i) the number of shares of Common Stock beneficially owned by such Subscriber and its Affiliates on a Conversion Date or payment date, and (ii) the number of Conversion Shares issuable upon the conversion of the New Note with respect to which the determination of this provision is being made on a calculation date, which would result in beneficial ownership by Subscriber and its Affiliates of more than 4.99% of the outstanding shares of Common Stock of the Company on such Conversion Date. For the purposes of the immediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and Rule 13d-3 thereunder. Subject to the foregoing, the Subscriber shall not be limited to aggregate conversions of only 4.99% and aggregate conversions by the Subscriber may exceed 4.99%. To the extent that the limitation contained in this Section 7.3 applies, the determination of whether a New Note is convertible (in relation to other securities owned by the Subscriber together with any Affiliates) and of which a portion of a New Note is convertible shall be in the sole discretion of the Subscriber, and the submission of a Conversion Notice shall be deemed to be the Subscriber’s determination of whether a New Note is convertible (in relation to other securities owned by the Subscriber together with any Affiliates) and of which portion of a New Note is exercisable, in each case subject to such aggregate percentage limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination. The Subscriber may modify the permitted beneficial ownership amount upon and effective after 61 days prior written notice to the Company. Subscriber may allocate which of the equity of the Company deemed beneficially owned by Subscriber shall be included in the 4.99% amount described above and which shall be allocated to the excess above 4.99%.