Common use of Purchaser Ownership of Common Stock Clause in Contracts

Purchaser Ownership of Common Stock. In no event shall a Purchaser be permitted to use its ability to convert Debentures or exercise its Warrants to the extent that such conversion or exercise would result in that Purchaser beneficially owning (for purposes of Rule 13d-3 under the Exchange Act and the rules thereunder) in excess of 4.999% of the then issued and outstanding shares of Common Stock, including shares issuable upon conversion of the Debentures held by such Purchaser after application of this Section. To the extent that the limitation contained in this Section applies, the determination of whether Debentures are convertible (in relation to other securities owned by a Purchaser) and of which Debentures are convertible shall be in the sole discretion of such Purchaser, and the submission of Debentures for conversion shall be deemed to be such Purchaser's determination of whether such Debentures are convertible (in relation to other securities owned by a Purchaser) and of which Debentures are convertible, 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. Nothing contained herein shall be deemed to restrict the right of a Purchaser to convert Debentures at such time as such conversion will not violate the provisions of this Section. Notwithstanding anything to the contrary contained herein, if ten days have elapsed since a Purchaser has declared an event of default under any Transaction Document and such event shall not have been cured to such Purchaser's satisfaction prior to the expiration of such ten-day period, the provisions of this Section 3.8 shall be null and void AB INITIO.

Purchaser Ownership of Common Stock. In no event shall a The Purchaser be permitted to use its ability agrees not to convert Debentures or exercise its Warrants the Warrant to the extent that such conversion or exercise would result in that the Purchaser beneficially owning (for purposes as determined in accordance with Section 13(d) of Rule 13d-3 under the Exchange Act and the rules thereunder) in excess of 4.999% of the then issued and outstanding shares of Common Stock, including shares issuable upon conversion of the Debentures held by such the Purchaser after application of this Section. To the extent that the limitation contained in this Section applies, the determination of whether Debentures are convertible (in relation to other securities owned by a the Purchaser) and of which portion of the principal amount of such Debentures are convertible shall be in the sole discretion of such the Purchaser, and the submission of Debentures for conversion shall be deemed to be such the Purchaser's determination of whether such Debentures are convertible (in relation to other securities owned by a the Purchaser) and of which portion of such Debentures are convertible, 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. Nothing contained herein shall be deemed to restrict the right of a the Purchaser to convert Debentures at such time as such conversion will not violate the provisions of this Section. Notwithstanding anything The provisions of this Section may be waived by the Purchaser upon not less than 75 days prior notice to the contrary contained hereinCompany, if ten days have elapsed since a Purchaser has declared an event of default under any Transaction Document and such event shall not have been cured to such Purchaser's satisfaction prior to the expiration of such ten-day period, the provisions of this Section 3.8 shall be null and void AB INITIOcontinue to apply until such 75th day (or later, if stated in the notice of waiver).

Purchaser Ownership of Common Stock. In no event shall a the Purchaser be permitted to use its ability to convert Debentures or exercise its Warrants Warrant to the extent that such conversion or exercise would result in that the Purchaser beneficially owning (for purposes of Rule 13d-3 under the Exchange Act and the rules thereunder) in excess of 4.999% of the then issued and outstanding shares of Common Stock, including shares issuable upon conversion of the Debentures held by such the Purchaser after application of this Section. To the extent that the limitation contained in this Section applies, the determination of whether Debentures are convertible (in relation to other securities owned by a the Purchaser) and of which Debentures are convertible shall be in the sole discretion of such the Purchaser, and the submission of Debentures for conversion shall be deemed to be such the Purchaser's determination of whether such Debentures are convertible (in relation to other securities owned by a the Purchaser) and of which Debentures are convertible, 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. Nothing contained herein shall be deemed to restrict the right of a the Purchaser to convert Debentures at such time as such conversion will not violate the provisions of this Section. Notwithstanding anything to the contrary contained herein, if ten days have elapsed since a the Purchaser has declared an event of default under any Transaction Document and such event shall not have been cured to such the Purchaser's satisfaction prior to the expiration of such ten-day period, the provisions of this Section 3.8 shall be null and void AB INITIO.

Purchaser Ownership of Common Stock. In no event shall a The Purchaser be permitted to use its ability agrees not to convert Debentures or exercise its Warrants to the extent that such conversion or exercise would result in that Purchaser it beneficially owning (for purposes as determined in accordance with Section 13(d) of Rule 13d-3 under the Exchange Act and the rules thereunder) in excess of 4.999% of the then issued and outstanding shares of Common Stock, including shares issuable upon conversion of the Debentures held by such Purchaser it after application of this Section. To the extent that the limitation contained in this Section applies, the determination of whether Debentures are convertible (in relation to other securities owned by a Purchaser) and of which portion of the principal amount of such Debentures are convertible shall be in the sole discretion of such Purchaser, and the submission of Debentures for conversion shall be deemed to be such Purchaser's ’s determination of whether such Debentures are convertible (in relation to other securities owned by a Purchaser) and of which portion of such Debentures are convertible, 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. Nothing contained herein shall be deemed to restrict the right of a Purchaser to convert Debentures at such time as such conversion will not violate the provisions of this Section. Notwithstanding anything The provisions of this Section may be waived by the Purchaser upon not less than 75 days prior notice to the contrary contained hereinCompany, if ten days have elapsed since a Purchaser has declared an event of default under any Transaction Document and such event shall not have been cured to such Purchaser's satisfaction prior to the expiration of such ten-day period, the provisions of this Section 3.8 shall be null and void AB INITIOcontinue to apply until such 75th day (or later, if stated in the notice of waiver). The provisions of this Section shall not apply upon any conversion pursuant to Section 4(a)(ii) of the Debentures.

Purchaser Ownership of Common Stock. In no event Neither Purchaser shall a Purchaser be permitted to use its ability to convert Debentures or exercise its Warrants Warrant to the extent that such conversion or exercise would result in that such Purchaser beneficially owning (for purposes as determined in accordance with Section 13(d) of Rule 13d-3 under the Exchange Act and the rules thereunder) in excess of 4.999% of the then issued and outstanding shares of Common Stock, including shares issuable upon conversion of the Debentures held by such Purchaser after application of this Section. To the extent that the limitation contained in this Section applies, the determination of whether Debentures are convertible (in relation to other securities owned by a Purchaser) and of which portion of the principal amount of such Debentures are convertible shall be in the sole discretion of such Purchaser, and the submission of Debentures for conversion shall be deemed to be such Purchaser's determination of whether such Debentures are convertible (in relation to other securities owned by a Purchaser) and of which portion of such Debentures are convertible, 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. Nothing contained herein shall be deemed to restrict the right of a Purchaser to convert Debentures at such time as such conversion will not violate the provisions of this Section. Notwithstanding anything The provisions of this Section may be waived by a Purchaser as to itself (and solely as to itself) upon not less than 75 days prior notice to the contrary contained hereinCompany, if ten days have elapsed since a Purchaser has declared an event of default under any Transaction Document and such event shall not have been cured to such Purchaser's satisfaction prior to the expiration of such ten-day period, the provisions of this Section 3.8 shall be null and void AB INITIOcontinue to apply until such 75th day (or later, if stated in the notice of waiver).

Purchaser Ownership of Common Stock. In no event The Purchaser shall a Purchaser be permitted to use its ability to not convert Debentures or exercise its Warrants Warrant to the extent that such conversion or exercise would result in that Purchaser it beneficially owning (for purposes as determined in accordance with Section 13(d) of Rule 13d-3 under the Exchange Act and the rules thereunder) in excess of 4.999% of the then issued and outstanding shares of Common Stock, including shares issuable upon conversion of the Debentures held by such Purchaser it after application of this Section. To the extent that the limitation contained in this Section applies, the determination of whether Debentures are convertible (in relation to other securities owned by a the Purchaser) and of which portion of the principal amount of such Debentures are convertible shall be in the sole discretion of such the Purchaser, and the submission of Debentures for conversion shall be deemed to be such the Purchaser's determination of whether such Debentures are convertible (in relation to other securities owned by a the Purchaser) and of which portion of such Debentures are convertible, 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. Nothing contained herein shall be deemed to restrict the right of a the Purchaser to convert Debentures at such time as such conversion will not violate the provisions of this Section. Notwithstanding anything The provisions of this Section may be waived by the Purchaser upon not less than 75 days prior notice to the contrary contained hereinCompany, if ten days have elapsed since a Purchaser has declared an event of default under any Transaction Document and such event shall not have been cured to such Purchaser's satisfaction prior to the expiration of such ten-day period, the provisions of this Section 3.8 shall be null and void AB INITIOcontinue to apply until such 75th day (or later, if stated in the notice of waiver).

Purchaser Ownership of Common Stock. In no event shall a The Purchaser be permitted to use its ability agrees not to convert Debentures Shares or exercise its Warrants the Warrant to the extent that such conversion or exercise would result in that the Purchaser beneficially owning (for purposes as determined in accordance with Section 13(d) of Rule 13d-3 under the Exchange Act and the rules thereunder) in excess of 4.999% of the then issued and outstanding shares of Common Stock, including shares issuable upon conversion of the Debentures Shares and exercise of the Warrant held by such Purchaser after application of this Section. To the extent that the limitation contained in this Section applies, the determination of whether Debentures Shares are convertible (in relation to other securities owned by a Purchaser) and of which Debentures Shares are convertible shall be in the sole discretion of such the Purchaser, and the submission of Debentures Shares for conversion shall be deemed to be such Purchaser's determination of whether such Debentures Shares are convertible (in relation to other securities owned by a Purchaser) and of which Debentures portion of such Shares are convertible, 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. Nothing contained herein shall be deemed to restrict the right of a the Purchaser to convert Debentures Shares or exercise the Warrant at such time as such conversion will not violate the provisions of this Section. Notwithstanding anything The provisions of this Section will not apply to any conversion pursuant to Section 5(a)(iii) of the Certificates of Designation, and may be waived by the Purchaser upon not less than 75 days prior notice to the contrary contained hereinCompany, if ten days have elapsed since a Purchaser has declared an event of default under any Transaction Document and such event shall not have been cured to such Purchaser's satisfaction prior to the expiration of such ten-day period, the provisions of this Section 3.8 shall be null and void AB INITIOcontinue to apply until such 75th day (or later, if stated in the notice of waiver).

Purchaser Ownership of Common Stock. In no event The Purchaser shall a Purchaser be permitted to use its ability to not convert Debentures Preferred Stock or exercise its Warrants Warrant to the extent that such conversion or exercise would result in that such Purchaser beneficially owning (for purposes as determined in accordance with Section 13(d) of Rule 13d-3 under the Exchange Act and the rules thereunder) in excess of 4.999% of the then issued and outstanding shares of Common Stock, including shares issuable upon conversion of the Debentures Preferred Stock and the Series B Preferred and the Series B Warrants held by such Purchaser after application of this Section. To the extent that the limitation contained in this Section applies, the determination of whether Debentures Preferred Stock are convertible (in relation to other securities owned by a Purchaser) and of which Debentures portion of the principal amount of such Preferred Stock are convertible shall be in the sole discretion of such Purchaser, and the submission of Debentures Preferred Stock for conversion shall be deemed to be such Purchaser's determination of whether such Debentures Preferred Stock are convertible (in relation to other securities owned by a Purchaser) and of which Debentures portion of such Preferred Stock are convertible, 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. Nothing contained herein shall be deemed to restrict the right of a Purchaser to convert Debentures Preferred Stock or Series B Preferred at such time as such conversion will not violate the provisions of this Section. Notwithstanding anything The provisions of this Section may be waived by a Purchaser as to itself (and solely as to itself) upon not less than 75 days prior notice to the contrary contained hereinCompany, if ten days have elapsed since a Purchaser has declared an event of default under any Transaction Document and such event shall not have been cured to such Purchaser's satisfaction prior to the expiration of such ten-day period, the provisions of this Section 3.8 shall be null and void AB INITIOcontinue to apply until such 75th day (or later, if stated in the notice of waiver).

Purchaser Ownership of Common Stock. In no event shall a Purchaser be permitted Each of the Purchasers agrees not to use its ability to convert Debentures or and exercise its Warrants to the extent that such conversion or exercise would result in that Purchaser it beneficially owning (for purposes as determined in accordance with Section 13(d) of Rule 13d-3 under the Exchange Act and the rules thereunder) in excess of 4.999% of the then issued and outstanding shares of Common Stock, including shares issuable upon conversion of the Debentures and exercise of the Warrants held by such Purchaser it after application of this Section. To the extent that the limitation contained in this Section applies, the determination of whether Debentures are convertible by a Purchaser (in relation to other securities owned by a Purchaserit) and of which Debentures what portion thereof are convertible shall be in the sole discretion of such Purchaser, and the submission of Debentures for conversion shall be deemed to be such Purchaser's determination of whether such Debentures are convertible (in relation to other securities owned by a Purchaserit) and of which portion of its Debentures are convertible, 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. Nothing contained herein shall be deemed to restrict the right of a Purchaser to convert Debentures at such time as such conversion will not violate the provisions of this Section. Notwithstanding anything The provisions of this Section may be waived by a Purchaser (but only as to itself) upon not less than 75 days prior notice to the contrary contained hereinCompany, if ten days have elapsed since a Purchaser has declared an event of default under any Transaction Document and such event shall not have been cured to such Purchaser's satisfaction prior to the expiration of such ten-day period, the provisions of this Section 3.8 shall be null and void AB INITIOcontinue to apply until such 75th day (or later, if stated in the notice of waiver).

Purchaser Ownership of Common Stock. In no event shall a The Purchaser be permitted to use its ability agrees not to convert Debentures or exercise its Warrants to the extent that such conversion or exercise would result in that the Purchaser beneficially owning (for purposes as determined in accordance with Section 13(d) of Rule 13d-3 under the Exchange Act and the rules thereunder) in excess of 4.999% of the then issued and outstanding shares of Common Stock, including shares issuable upon conversion of the Debentures and exercise of the Warrant held by such Purchaser after application of this Section. To the extent that the limitation contained in this Section applies, the determination of whether Debentures are convertible (in relation to other securities owned by a Purchaser) and of which portion of the principal amount of such Debentures are convertible shall be in the sole discretion of such the Purchaser, and the submission of Debentures for conversion shall be deemed to be such Purchaser's determination of whether such Debentures are convertible (in relation to other securities owned by a Purchaser) and of which portion of such Debentures are convertible, 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. Nothing contained herein shall be deemed to restrict the right of a the Purchaser to convert Debentures or exercise the Warrant at such time as such conversion will not violate the provisions of this Section. Notwithstanding anything The provisions of this Section will not apply to any conversion pursuant to Section 4(a)(ii) of the Debentures, and may be waived by the Purchaser upon not less than 75 days prior notice to the contrary contained hereinCompany, if ten days have elapsed since a Purchaser has declared an event of default under any Transaction Document and such event shall not have been cured to such Purchaser's satisfaction prior to the expiration of such ten-day period, the provisions of this Section 3.8 shall be null and void AB INITIOcontinue to apply until such 75th day (or later, if stated in the notice of waiver).