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. 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 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. 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 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%.