Common use of Beneficial Ownership Blocker Clause in Contracts

Beneficial Ownership Blocker. The Company shall not effect any conversion of the Tranche C Term Loan of any Tranche C Lender, and a Tranche C Lender shall not have the right to convert any portion of its Tranche C Term Loan, to the extent that after giving effect to the conversion set forth on the applicable Notice of Conversion, the Tranche C Lender (together with the Tranche C Lender’s Affiliates, and any Persons acting as a group together with the Tranche C Lender or any of the Tranche C Lender’s Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by a Tranche C Lender and its Affiliates shall include the number of shares of Common Stock issuable upon conversion of the portion of such Tranche C Lender’s Tranche C Term Loan with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon (i) conversion of the remaining, unconverted principal amount of such Tranche C Lender’s Tranche C Term Loan beneficially owned by the Tranche C Lender or any of its Affiliates and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Tranche C Lender or any of its Affiliates. Except as set forth in the preceding sentence, for purposes of this Section 4.4(f), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section 4.4(f) applies, the determination of whether the Tranche C Term Lender’s Tranche C Term Loan is convertible (in relation to other securities owned by the Tranche C Lender together with any Affiliates) and of which principal amount of such Tranche C Lender’s Tranche C Term Loan is convertible shall be in the sole discretion of such Tranche C Lender, and the submission of a Notice of Conversion shall be deemed to be the Tranche C Lender’s determination of whether its Tranche C Term Loan may be converted (in relation to other securities owned by the Tranche C Lender together with any Affiliates) and which principal amount of such Tranche C Lender’s Tranche C Term Loan is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Tranche C Term Lender will be deemed to represent to the Company each time it delivers a Notice of Conversion, that such Notice of Conversion has not violated the restrictions set forth in this Section 4.4(f) and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 4.4(f), in determining the number of outstanding shares of Common Stock, the Tranche C Lender may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the SEC, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written 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 a Tranche C Lender, the Company shall within two Trading Days confirm orally and in writing to the Tranche C Lender, 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 Tranche C Lender’s Tranche C Term Loan, by the Tranche C Lender or its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of the Tranche C Term Loan by the Tranche C Lender. Each Tranche C Lender, upon not less than 61 days’ prior notice to the Company, may increase the Beneficial Ownership Limitation provisions of this Section 4.4(f) to 9.99% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of such Tranche C Lender’s Tranche C Term Loan. In all events, the provisions of this Section 4.4(f) shall continue to apply. Any such increase or decrease will not be effective until the 61st day after such notice is delivered to the Company. Each Tranche C Lender may also decrease esethe Beneficial Ownership Limitation provisions of this Section 4.4(e) solely with respect to such Tranche C Lender’s Tranche C Term Loan at any time, which decrease shall be effective immediately upon delivery of notice to the Company. The Beneficial Ownership Limitation provisions of this Section 4.4(f) shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 4(f) to correct any portion which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this Section 4.4(f) shall apply to a successor Tranche C Lender.

Beneficial Ownership Blocker. The Company shall not effect any conversion In implementation of the Tranche C Term Loan of any Tranche C Lender, and a Tranche C Lender shall not have the right to convert any portion of its Tranche C Term Loanthis Section 4.12, to the extent that after giving effect to the conversion set forth on the applicable Notice an issuance of Conversion, the Tranche C Lender (together with the Tranche C Lender’s Affiliates, and any Persons acting as Additional Shares would result in a group together with the Tranche C Lender or any of the Tranche C Lender’s Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by a Tranche C Lender and its Affiliates shall include the number of shares of Common Stock issuable upon conversion of the portion of such Tranche C Lender’s Tranche C Term Loan with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon (i) conversion of the remaining, unconverted principal amount of such Tranche C Lender’s Tranche C Term Loan beneficially owned by the Tranche C Lender Purchaser or any of its Affiliates and Attribution Party’s (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Tranche C Lender or any of its Affiliates. Except as set forth defined in the preceding sentence, for purposes Warrant) beneficially owning in excess of this Section 4.4(f), beneficial ownership shall be calculated in accordance with Section 13(d9.99% (the “Maximum Percentage”) of the Exchange Act Common Stock, then the Company shall initially issue only such number of Additional Shares that would result in such Purchaser (together with such Purchaser’s Attribution Parties) beneficially owning the Maximum Percentage of the Common Stock, and, except as otherwise provided below, no other Additional Shares shall be issuable under this Section 4.12, but shall instead held in abeyance pursuant to this Section 4.12. After such initial issuance, and until all Additional Shares which otherwise would have been issued under this Section 4.12 have been issued, from time to time the rules Company will issue such number of such unissued Additional Shares so that such Purchaser (together such Purchaser’s Attribution Parties) will beneficially own only the Maximum Percentage of the Common Stock. Such Purchaser shall make written representations and regulations promulgated thereunderwarranties to the Company regarding its (together with its Attribution Parties) beneficial ownership to effectuate the foregoing. To the extent that the The Maximum Percentage limitation contained in this Section 4.4(f4.12(c) appliesand Section 2(e) of the Warrants issued to such Purchaser pursuant to this Agreement, shall be coordinated so that the determination aggregate beneficial ownership of whether the Tranche C Term Lender’s Tranche C Term Loan is convertible such Purchaser (in relation to other securities owned by the Tranche C Lender together with its Attribution Parties (as defined in the Warrant) does not exceed the Maximum Percentage limitation. In connection therewith, issuances pursuant to this Section 4.12 shall take precedence over issuances of any AffiliatesWarrant Shares issuable to such Purchaser. The provisions of this Section 4.12(c) and of which principal amount of such Tranche C Lender’s Tranche C Term Loan is convertible shall be implemented in a manner otherwise than in strict conformity with the sole discretion of such Tranche C Lender, and the submission of a Notice of Conversion shall be deemed terms this paragraph to be the Tranche C Lender’s determination of whether its Tranche C Term Loan correct this paragraph (or any portion hereof) which may be converted (in relation defective or inconsistent with the intended Maximum Percentage beneficial ownership limitation herein contained or to other securities owned by the Tranche C Lender together with any Affiliates) and which principal amount of make changes or supplements necessary or desirable to properly give effect to such Tranche C Lender’s Tranche C Term Loan is convertible, in each case subject to the Beneficial Ownership LimitationMaximum Percentage limitation. To ensure compliance with this restriction, the Tranche C Term Lender will be deemed to represent to the Company each time it delivers a Notice of Conversion, that such Notice of Conversion has not violated the restrictions set forth The limitations contained in this Section 4.4(f4.12(c) and the Company shall have no obligation apply to verify or confirm the accuracy assignees of such determinationPurchaser hereunder. In additionFor the purposes of this Section 4.12(c), a determination as beneficial ownership and all determinations and calculations (including, without limitation, with respect to any group status as contemplated above calculations of percentage ownership) shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 4.4(f), in determining the number of outstanding shares of Common Stock, the Tranche C Lender may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the SEC, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written 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 a Tranche C Lender, the Company shall within two Trading Days confirm orally and in writing to the Tranche C Lender, 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 Tranche C Lender’s Tranche C Term Loan, by the Tranche C Lender or its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of the Tranche C Term Loan by the Tranche C Lender. Each Tranche C Lender, upon not less than 61 days’ prior notice to the Company, may increase the Beneficial Ownership Limitation provisions of this Section 4.4(f) to 9.99% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of such Tranche C Lender’s Tranche C Term Loan. In all events, the provisions of this Section 4.4(f) shall continue to apply. Any such increase or decrease will not be effective until the 61st day after such notice is delivered to the Company. Each Tranche C Lender may also decrease esethe Beneficial Ownership Limitation provisions of this Section 4.4(e) solely with respect to such Tranche C Lender’s Tranche C Term Loan at any time, which decrease shall be effective immediately upon delivery of notice to the Company. The Beneficial Ownership Limitation provisions of this Section 4.4(f) shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 4(f) to correct any portion which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this Section 4.4(f) shall apply to a successor Tranche C Lender.