Common use of Conversion Limitations Clause in Contracts

Conversion Limitations. i. [as to Debentures issued at First Closing only] Issuable Maximum. Notwithstanding anything herein to the contrary, prior to the date the Charter Amendment is effective, the Company has reserved an aggregate of 225,000,000 shares of Common Stock for issuance (A) in connection with any Debentures issued pursuant to the Purchase Agreement and (B) in connection with any Warrants issued pursuant to the Purchase Agreement (such number of shares, the “Issuable Maximum”). Prior to the date the Charter Amendment is effective, each Holder shall be entitled to a portion of the Issuable Maximum equal to the quotient obtained by dividing (x) the aggregate principal amount of the Debenture(s) issued and sold to such Holder on the Original Issue Date by (y) the aggregate principal amount of all Debentures issued and sold by the Company on the Original Issue Date. If any Holder shall no longer hold the Debenture(s) and Warrants, then such Holder’s remaining portion of the Issuable Maximum, if any, shall be allocated pro-rata among the remaining Holders. If, on any Conversion Date, (1) the applicable Conversion Price is such that the shares issuable under this Debenture on such Conversion Date, together with the aggregate number of shares of Common Stock that have been issued upon prior conversion or exercise of the Debentures and Warrants, as applicable, would exceed the Issuable Maximum and (2) the Charter Amendment is not effective, then the Company shall issue to the Holder requesting a conversion a number of shares of Common Stock equal to such Holder’s pro-rata portion (which shall be calculated pursuant to the terms hereof) of the Issuable Maximum and, with respect to the remainder of the aggregate principal amount of the Debentures then held by such Holder for which a conversion in accordance with the applicable Conversion Price would result in an issuance of shares of Common Stock in excess of such Holder’s pro-rata portion (which shall be calculated pursuant to the terms hereof) of the Issuable Maximum (the “Excess Principal”), the Company shall be prohibited from converting such Excess Principal and shall promptly notify the Holder of the reason therefor. This Debenture shall thereafter be unconvertible to such extent until and unless the Charter Amendment is subsequently approved, but this Debenture shall otherwise remain in full force and effect. The Holder shall be entitled, in its sole discretion, to allocate its pro-rata portion of the Issuable Maximum among Debentures and Warrants held by it.]

Conversion Limitations. i. [as In no event shall a Holder be permitted to Debentures issued at First Closing only] Issuable Maximum. Notwithstanding anything herein convert any Series C Preferred Shares in excess of the number of such shares, upon the Conversion of which: (a) the number of Conversion Shares to the contrary, prior to the date the Charter Amendment is effective, the Company has reserved an aggregate of 225,000,000 shares of Common Stock for issuance (A) in connection with any Debentures be issued pursuant to the Purchase Agreement and (B) in connection with any Warrants issued pursuant such Conversion, when added to the Purchase Agreement (such number of shares, the “Issuable Maximum”). Prior to the date the Charter Amendment is effective, each Holder shall be entitled to a portion of the Issuable Maximum equal to the quotient obtained by dividing (x) the aggregate principal amount of the Debenture(s) issued and sold to such Holder on the Original Issue Date by (y) the aggregate principal amount of all Debentures issued and sold by the Company on the Original Issue Date. If any Holder shall no longer hold the Debenture(s) and Warrants, then such Holder’s remaining portion of the Issuable Maximum, if any, shall be allocated pro-rata among the remaining Holders. If, on any Conversion Date, (1) the applicable Conversion Price is such that the shares issuable under this Debenture on such Conversion Date, together with the aggregate number of shares of Common Stock that have been issued upon pursuant to all prior conversion or Conversions of Series C Preferred Shares, issuances of Dividend Payment Shares and exercise of the Debentures and Warrants, as applicable, Warrants would exceed 19.99% of the Issuable Maximum and (2) the Charter Amendment is not effective, then the Company shall issue to the Holder requesting a conversion a number of outstanding shares of Common Stock equal on the Purchase Date (subject to equitable adjustments from time to time for the events described in Section 5 below) (the "Cap Amount"), except that such Holder’s pro-rata portion limitation shall not apply in the event that (which shall be calculated pursuant to i) the terms hereofCorporation obtains the approval of its shareholders as required by NASD Rule 4460 (or any successor rule or regulation) of the Issuable Maximum and, with respect to the remainder of the aggregate principal amount of the Debentures then held by such Holder for which a conversion in accordance with the applicable Conversion Price would result in an issuance of shares issuances of Common Stock in excess of such Holder’s pro-rata portion amount or (ii) obtains a written opinion from outside counsel to the Corporation that such approval is not required, which opinion shall be calculated reasonably satisfactory to the Holders of a majority of the Series C Preferred Shares then outstanding. Until such approval or written opinion is obtained, no purchaser of Series C Preferred Shares pursuant to the terms hereofSecurities Purchase Agreement (each, a "Purchaser" and, collectively, the "Purchasers") shall be issued, upon Conversion of the Issuable Maximum Series C Preferred Shares, Conversion Shares in an amount greater than the product of (A) the Cap Amount times (B) a fraction, the numerator of which is the number of Series C Preferred Shares issued to such Purchaser pursuant to the Securities Purchase Agreement and the denominator of which is the aggregate amount of all of the Series C Preferred Shares issued to the Purchasers pursuant to the Securities Purchase Agreement (the “Excess Principal”"Allocation Amount"). In the event that any Purchaser shall sell or otherwise transfer any of such Purchaser's Series C Preferred Shares, the Company transferee shall be prohibited from converting allocated a pro rata portion of such Excess Principal Purchaser's Allocation Amount. In the event that any Holder shall convert all of such Holder's Series C Preferred Shares into a number of Conversion Shares which, in the aggregate, is less than such Holder's Allocation Amount, then the difference between such Holder's Allocation Amount and shall promptly notify the Holder number of the reason therefor. This Debenture shall thereafter be unconvertible Conversion Shares actually issued to such extent until and unless the Charter Amendment is subsequently approved, but this Debenture shall otherwise remain in full force and effect. The Holder shall be entitled, in its sole discretion, allocated to allocate its pro-rata portion the respective Allocation Amounts of the Issuable Maximum among Debentures and Warrants remaining Holders of Series C Preferred Shares on a pro rata basis in proportion to the number of Series C Preferred Shares then held by it.]each such Holder;

Conversion Limitations. i. [as In order to Debentures issued at First Closing only] Issuable Maximum. Notwithstanding anything herein effect the FPI Protection Restriction, each holder of Multiple Voting Shares will be subject to the contrary, prior to 40% Threshold based on the number of Multiple Voting Shares held by such holder as of the date of the Charter Amendment is effectiveinitial issuance of the Multiple Voting Shares and thereafter at the end of each of the Company’s subsequent fiscal quarters (each, a “Determination Date”), calculated as follows: X = [(A x 0.4) - B] x (C/D) Where on the Determination Date: X = Maximum Number of Subordinate Voting Shares Available For Issue upon Conversion of Multiple Voting Shares by a holder. A = The Number of Subordinate Voting Shares, Multiple Voting Shares and Super Voting Shares issued and outstanding on the Determination Date. B = Aggregate number of Subordinate Voting Shares, Multiple Voting Shares and Super Voting Shares held of record, directly or indirectly, by U.S. Residents on the Determination Date. C = Aggregate number of Multiple Voting Shares held by holder on the Determination Date. D = Aggregate number of all Multiple Voting Shares on the Determination Date. For purposes of this subsection (f)(iii), the Board of Directors (or a committee thereof) shall designate an officer of the Company has reserved an aggregate to determine as of 225,000,000 shares of Common Stock for issuance each Determination Date: (A) in connection with any Debentures issued pursuant to the Purchase Agreement 40% Threshold and (B) in connection with any Warrants issued pursuant to the Purchase Agreement FPI Protective Restriction. Within thirty (such number of shares, the “Issuable Maximum”). Prior to the date the Charter Amendment is effective, each Holder shall be entitled to a portion 30) days of the Issuable Maximum equal to the quotient obtained by dividing end of each Determination Date (x) the aggregate principal amount a “Notice of the Debenture(s) issued and sold to such Holder on the Original Issue Date by (y) the aggregate principal amount of all Debentures issued and sold by the Company on the Original Issue Date. If any Holder shall no longer hold the Debenture(s) and Warrants, then such Holder’s remaining portion of the Issuable Maximum, if any, shall be allocated pro-rata among the remaining Holders. If, on any Conversion Date, (1) the applicable Conversion Price is such that the shares issuable under this Debenture on such Conversion Date, together with the aggregate number of shares of Common Stock that have been issued upon prior conversion or exercise of the Debentures and Warrants, as applicable, would exceed the Issuable Maximum and (2) the Charter Amendment is not effective, then the Company shall issue to the Holder requesting a conversion a number of shares of Common Stock equal to such Holder’s pro-rata portion (which shall be calculated pursuant to the terms hereof) of the Issuable Maximum and, with respect to the remainder of the aggregate principal amount of the Debentures then held by such Holder for which a conversion in accordance with the applicable Conversion Price would result in an issuance of shares of Common Stock in excess of such Holder’s pro-rata portion (which shall be calculated pursuant to the terms hereof) of the Issuable Maximum (the “Excess PrincipalLimitation”), the Company will provide each holder of record a notice of the FPI Protection Restriction and the impact the FPI Protective Provision has on the ability of each holder to exercise the right to convert Multiple Voting Shares held by the holder. To the extent that requests for conversion of Multiple Voting Shares subject to the FPI Protection Restriction would result in the 40% Threshold being exceeded, the number of such Multiple Voting Shares eligible for conversion held by a particular holder shall be prohibited from converting such Excess Principal and prorated relative to the number of Multiple Voting Shares submitted for conversion. To the extent that the FPI Protective Restriction contained in this Section (f) applies, the determination of whether Multiple Voting Shares are convertible shall promptly notify be in the Holder sole discretion of the reason therefor. This Debenture shall thereafter be unconvertible to such extent until and unless the Charter Amendment is subsequently approved, but this Debenture shall otherwise remain in full force and effect. The Holder shall be entitled, in its sole discretion, to allocate its pro-rata portion of the Issuable Maximum among Debentures and Warrants held by itCompany.]

Conversion Limitations. i. [as In order to Debentures issued at First Closing only] Issuable Maximum. Notwithstanding anything herein effect the FPI Protective Restriction, each holder of Multiple Voting Shares will be subject to the contrary, prior to 40% Threshold based on the number of Multiple Voting Shares held by such holder as of the date of the Charter Amendment is effectiveinitial issuance of the Multiple Voting Shares and thereafter at the end of each of the Company’s subsequent fiscal quarters (each, a “Determination Date”), calculated as follows: X = [(A x 0.4) - B] x (C/D) Where on the Determination Date: X = Maximum number of Subordinate Voting Shares available for issue upon conversion of Multiple Voting Shares by a holder. A = The number of Subordinate Voting Shares and Multiple Voting Shares issued and outstanding on the Determination Date. B = Aggregate number of Subordinate Voting Shares and Multiple Voting Shares held of record, directly or indirectly, by U.S. Residents on the Determination Date. C = Aggregate number of Multiple Voting Shares held by holder on the Determination Date. D = Aggregate number of all Multiple Voting Shares on the Determination Date. For purposes of this Section 2(f)(iv), the Board of Directors (or a committee thereof) shall designate an officer of the Company has reserved an aggregate to determine as of 225,000,000 shares of Common Stock for issuance each Determination Date: (A) in connection with any Debentures issued pursuant to the Purchase Agreement 40% Threshold and (B) in connection with any Warrants issued pursuant to the Purchase Agreement FPI Protective Restriction. Within thirty (such number of shares, the “Issuable Maximum”). Prior to the date the Charter Amendment is effective, each Holder shall be entitled to a portion 30) days of the Issuable Maximum equal to the quotient obtained by dividing end of each Determination Date (x) the aggregate principal amount a “Notice of the Debenture(s) issued and sold to such Holder on the Original Issue Date by (y) the aggregate principal amount of all Debentures issued and sold by the Company on the Original Issue Date. If any Holder shall no longer hold the Debenture(s) and Warrants, then such Holder’s remaining portion of the Issuable Maximum, if any, shall be allocated pro-rata among the remaining Holders. If, on any Conversion Date, (1) the applicable Conversion Price is such that the shares issuable under this Debenture on such Conversion Date, together with the aggregate number of shares of Common Stock that have been issued upon prior conversion or exercise of the Debentures and Warrants, as applicable, would exceed the Issuable Maximum and (2) the Charter Amendment is not effective, then the Company shall issue to the Holder requesting a conversion a number of shares of Common Stock equal to such Holder’s pro-rata portion (which shall be calculated pursuant to the terms hereof) of the Issuable Maximum and, with respect to the remainder of the aggregate principal amount of the Debentures then held by such Holder for which a conversion in accordance with the applicable Conversion Price would result in an issuance of shares of Common Stock in excess of such Holder’s pro-rata portion (which shall be calculated pursuant to the terms hereof) of the Issuable Maximum (the “Excess PrincipalLimitation”), the Company will provide each holder of record a notice of the FPI Protective Restriction and the impact the FPI Protective Restriction has on the ability of each holder to exercise the right to convert Multiple Voting Shares held by the holder. To the extent that requests for conversion of Multiple Voting Shares subject to the FPI Protective Restriction would result in the 40% Threshold being exceeded, the number of such Multiple Voting Shares eligible for conversion held by a particular holder shall be prohibited from converting such Excess Principal and prorated relative to the number of Multiple Voting Shares submitted for conversion. To the extent that the FPI Protective Restriction contained in this Section 2(f) applies, the determination of whether Multiple Voting Shares are convertible shall promptly notify be in the Holder sole discretion of the reason therefor. This Debenture shall thereafter be unconvertible to such extent until and unless the Charter Amendment is subsequently approved, but this Debenture shall otherwise remain in full force and effect. The Holder shall be entitled, in its sole discretion, to allocate its pro-rata portion of the Issuable Maximum among Debentures and Warrants held by itCompany.]

Conversion Limitations. i. [as In order to Debentures issued at First Closing only] Issuable Maximum. Notwithstanding anything herein effect the FPI Protective Restriction, each holder of Multiple Voting Shares will be subject to the contrary, prior to 40% Threshold based on the number of Multiple Voting Shares held by such holder as of the date of the Charter Amendment is effectiveinitial issuance of the Multiple Voting Shares and thereafter at the end of each of the Company's subsequent fiscal quarters (each, a "Determination Date"), calculated as follows: X = [(A x 0.4) - B] x (C/D) Where, on the Company has reserved an aggregate Determination Date: X = Maximum Number of 225,000,000 shares Subordinate Voting Shares Available For Issue upon Conversion of Common Stock for issuance (A) in connection with any Debentures Multiple Voting Shares by a holder. A = The Number of Subordinate Voting Shares and Multiple Voting Shares issued pursuant to and outstanding on the Purchase Agreement and (B) in connection with any Warrants issued pursuant to the Purchase Agreement (such Determination Date. B = Aggregate number of sharesSubordinate Voting Shares and Multiple Voting Shares held of record, the “Issuable Maximum”). Prior to the date the Charter Amendment is effectivedirectly or indirectly, each Holder shall be entitled to a portion of the Issuable Maximum equal to the quotient obtained by dividing (x) the aggregate principal amount of the Debenture(s) issued and sold to such Holder U.S. Residents on the Original Issue Date Determination Date. C = Aggregate number of Multiple Voting Shares held by (y) a holder on the aggregate principal amount Determination Date. D = Aggregate number of all Debentures issued and sold by the Company Multiple Voting Shares on the Original Issue Determination Date. If any Holder The Conversion Limitation Officer shall no longer hold the Debenture(s) and Warrants, then such Holder’s remaining portion determine as of the Issuable Maximum, if any, shall be allocated pro-rata among the remaining Holders. If, on any Conversion each Determination Date, (1) the applicable Conversion Price is such that the shares issuable under this Debenture on such Conversion Datein his or her sole discretion acting reasonably, together with the aggregate number of shares Subordinate Voting Shares and Multiple Voting Shares held of Common Stock that have been record, directly or indirectly, by U.S. Residents, the maximum number of Subordinate Voting Shares which may be issued upon prior conversion or exercise of the Debentures and WarrantsConversion Rights, as applicable, would exceed the Issuable Maximum and (2) the Charter Amendment is not effective, then the Company shall issue to the Holder requesting a conversion a number of shares of Common Stock equal to such Holder’s pro-rata portion (which shall be calculated pursuant to the terms hereof) of the Issuable Maximum and, with respect to the remainder of the aggregate principal amount of the Debentures then held by such Holder for which a conversion generally in accordance with the applicable formula set forth immediately above. Upon request by a holder of Multiple Voting Shares, the Company will provide each holder of Multiple Voting Shares with notice of such maximum number as at the most recent Determination Date, or a more recent date as may be determined by the Conversion Price Limitation Officer in its discretion. To the extent that issuances of Subordinate Voting Shares on exercise of the Conversion Rights would result in an issuance the 40% Threshold being exceeded, the number of shares of Common Stock in excess of such Holder’s Subordinate Voting Shares to be issued will be pro-rata portion rated among each holder of Multiple Voting Shares exercising the Conversion Rights. Notwithstanding the provisions of Subsections 25.1(f)(iv) and (which shall be calculated pursuant to the terms hereof) of the Issuable Maximum (the “Excess Principal”v), the Company shall be prohibited from converting such Excess Principal and shall promptly notify directors may by resolution waive the Holder application of the reason therefor. This Debenture shall thereafter be unconvertible FPI Protective Restriction to such extent until and unless the Charter Amendment is subsequently approved, but this Debenture shall otherwise remain in full force and effect. The Holder shall be entitled, in its sole discretion, to allocate its pro-rata portion any exercise or exercises of the Issuable Maximum among Debentures and Warrants held by itConversion Rights to which the FPI Protective Restriction would otherwise apply, or to future Conversion Rights generally, including with respect to a period of time, if the directors determine that the exercise of such Conversion Rights is in the best interests of the Company.]

Conversion Limitations. i. [as In order to Debentures issued at First Closing only] Issuable Maximum. Notwithstanding anything herein effect the FPI Protection Restriction, each holder of Multiple Voting Shares will be subject to the contrary, prior to 40% Threshold based on the number of Multiple Voting Shares held by such holder as of the date of the Charter Amendment is effectiveinitial issuance of the Multiple Voting Shares and thereafter at the end of each of the Corporation’s subsequent fiscal quarters (each, a “Determination Date”), calculated as follows: X = [(A x 0.4) - B] x (C/D) Where on the Determination Date: X = Maximum Number of Subordinate Voting Shares Available For Issue upon Conversion of Multiple Voting Shares by a holder. A = The Number of Subordinate Voting Shares, Multiple Voting Shares and Super Voting Shares issued and outstanding on the Determination Date. B = Aggregate number of Subordinate Voting Shares, Multiple Voting Shares and Super Voting Shares held of record, directly or indirectly, by U.S. Residents on the Determination Date. C = Aggregate number of Multiple Voting Shares held by holder on the Determination Date. D = Aggregate number of all Multiple Voting Shares on the Determination Date. For purposes of this subsection (g)(iii), the Company has reserved Board of Directors (or a committee thereof) shall designate an aggregate officer of 225,000,000 shares the Corporation to determine as of Common Stock for issuance each Determination Date: (A) in connection with any Debentures issued pursuant to the Purchase Agreement 40% Threshold and (B) in connection with any Warrants issued pursuant to the Purchase Agreement FPI Protective Restriction. Within thirty (such number of shares, the “Issuable Maximum”). Prior to the date the Charter Amendment is effective, each Holder shall be entitled to a portion 30) days of the Issuable Maximum equal to the quotient obtained by dividing end of each Determination Date (x) the aggregate principal amount a “Notice of the Debenture(s) issued and sold to such Holder on the Original Issue Date by (y) the aggregate principal amount of all Debentures issued and sold by the Company on the Original Issue Date. If any Holder shall no longer hold the Debenture(s) and Warrants, then such Holder’s remaining portion of the Issuable Maximum, if any, shall be allocated pro-rata among the remaining Holders. If, on any Conversion Date, (1) the applicable Conversion Price is such that the shares issuable under this Debenture on such Conversion Date, together with the aggregate number of shares of Common Stock that have been issued upon prior conversion or exercise of the Debentures and Warrants, as applicable, would exceed the Issuable Maximum and (2) the Charter Amendment is not effective, then the Company shall issue to the Holder requesting a conversion a number of shares of Common Stock equal to such Holder’s pro-rata portion (which shall be calculated pursuant to the terms hereof) of the Issuable Maximum and, with respect to the remainder of the aggregate principal amount of the Debentures then held by such Holder for which a conversion in accordance with the applicable Conversion Price would result in an issuance of shares of Common Stock in excess of such Holder’s pro-rata portion (which shall be calculated pursuant to the terms hereof) of the Issuable Maximum (the “Excess PrincipalLimitation”), the Company Corporation will provide each holder of record a notice of the FPI Protection Restriction and the impact the FPI Protective Provision has on the ability of each holder to exercise the right to convert Multiple Voting Shares held by the holder. To the extent that requests for conversion of Multiple Voting Shares subject to the FPI Protection Restriction would result in the 40% Threshold being exceeded, the number of such Multiple Voting Shares eligible for conversion held by a particular holder shall be prohibited from converting such Excess Principal and prorated relative to the number of Multiple Voting Shares submitted for conversion. To the extent that the FPI Protective Restriction contained in this Section (g) applies, the determination of whether Multiple Voting Shares are convertible shall promptly notify be in the Holder sole discretion of the reason therefor. This Debenture shall thereafter be unconvertible to such extent until and unless the Charter Amendment is subsequently approved, but this Debenture shall otherwise remain in full force and effect. The Holder shall be entitled, in its sole discretion, to allocate its pro-rata portion of the Issuable Maximum among Debentures and Warrants held by itCorporation.]

Conversion Limitations. i. [as to Debentures issued at First Closing only] Issuable Maximum. Notwithstanding anything herein Subject to the contrarybeneficial ownership limitations set forth in the certificate of designation of the Parent’s Series D Preferred Stock and described in Section 2.5 above, which shall further limit the conversions permitted hereby, each Stockholder agrees not to convert more than its pro rata share of the conversion limit (the “Conversion Limit”) of the Series D Preferred Stock on any single Trading Day (as defined in the Series D Certificate of Designation). The Conversion Limit is calculated as 15% (the “Volume Percentage”) of the greater of (i) the trading volume of the Parent’s common stock on the Conversion Notice Delivery Date (as defined in the Series D Certificate of Designation) or (ii) the average trading volume of the Parent’s common stock for the ten (10) Trading Days immediately prior to the date Conversion Notice Delivery Date. If the Charter Amendment Parent’s common stock is effectivetraded at or above $12 per share on the Conversion Notice Delivery Date, the Company has reserved an aggregate Volume Percentage shall be increased to 20% for purposes of 225,000,000 shares calculating the Conversion Limit applicable to that day. The Parent and Stockholders agree that the Conversion Limit shall be applied to all holders of Common the Series D Preferred Stock for issuance (A) in connection with any Debentures issued pursuant the same manner and to the Purchase Agreement same extent (accounting for each holder’s pro rata share), and (B) in connection with that any Warrants issued pursuant to waiver, termination or modification of the Purchase Agreement (such number of sharesConversion Limit shall affect all holders equally. In the event that the Conversion Limit is waived, terminated or otherwise modified by the “Issuable Maximum”). Prior to the date the Charter Amendment is effectiveParent, each Holder holder of Series D Preferred Stock shall be entitled to the benefit of such waiver, termination or modification (as the case may be) and shall be entitled to the same revised conversion limit terms at the time of such waiver, termination or modification, provided, however, that if any condition must be satisfied or consideration provided for such waiver, termination or modification, each holder will be required to satisfy such condition or provide such consideration (accounting for each holder’s pro rata share) in order to be entitled to the benefits thereof. Notwithstanding anything in this Section 6.9 or in the Series D Certificate of Designation, a portion holder of the Issuable Maximum equal Series D Preferred Stock may convert such shares of Series D Preferred Stock without regards to the quotient obtained by dividing (x) Conversion Limit if the aggregate principal amount stock is traded at or above $15 on the Conversion Notice Delivery Date. Each certificate evidencing shares of Series D Preferred Stock shall contain a legend reflecting the terms of the Debenture(s) issued restrictions on conversions set forth in this Section 6.9. Notwithstanding anything to the foregoing, in the event of a discrepancy between this Section 6.9 and sold to such Holder on the Original Issue Date by (y) the aggregate principal amount of all Debentures issued and sold by the Company on the Original Issue Date. If any Holder shall no longer hold the Debenture(s) and Warrants, then such Holder’s remaining portion terms of the Issuable MaximumSeries D Certificate of Designation, if any, shall be allocated pro-rata among the remaining Holders. If, on any Conversion Date, (1) the applicable Conversion Price is such that the shares issuable under this Debenture on such Conversion Date, together with the aggregate number of shares of Common Stock that have been issued upon prior conversion or exercise terms of the Debentures and Warrants, as applicable, would exceed the Issuable Maximum and (2) the Charter Amendment is not effective, then the Company Series D Certificate of Designation shall issue to the Holder requesting a conversion a number of shares of Common Stock equal to such Holder’s pro-rata portion (which shall be calculated pursuant to the terms hereof) of the Issuable Maximum and, with respect to the remainder of the aggregate principal amount of the Debentures then held by such Holder for which a conversion in accordance with the applicable Conversion Price would result in an issuance of shares of Common Stock in excess of such Holder’s pro-rata portion (which shall be calculated pursuant to the terms hereof) of the Issuable Maximum (the “Excess Principal”), the Company shall be prohibited from converting such Excess Principal and shall promptly notify the Holder of the reason therefor. This Debenture shall thereafter be unconvertible to such extent until and unless the Charter Amendment is subsequently approved, but this Debenture shall otherwise remain in full force and effect. The Holder shall be entitled, in its sole discretion, to allocate its pro-rata portion of the Issuable Maximum among Debentures and Warrants held by itgovern.]