Restriction on Short Sales. Each Buyer agrees that, subject to the exceptions described below, during the period beginning on the Initial Closing Date and ending on but excluding the earlier of (i) the first date on which such Buyer no longer holds any Preferred Shares and (ii) the date which is 180 days after the Initial Closing Date, neither such Buyer nor any of its affiliates shall engage in any transaction constituting a "short sale" (as defined in Rule 3b-3 of the ▇▇▇▇ ▇▇▇) of the Common Stock (collectively, "Short Sales"); provided, however, that each Buyer and its Affiliates are entitled to engage in transactions which constitute Short Sales to the extent that following such transaction the aggregate net short position of such Buyer and its Affiliates does not exceed the sum of (a) the number of shares of Common Stock equal to the aggregate number of Warrant Shares which such Buyer and its Affiliates have the right to acquire upon exercise of the Warrants held by such Buyer and its Affiliates (without regard to any limitations on exercises of the Warrants), plus (b) during the period beginning on and including the First Company's Conversion Election Notice Date (as defined in Section 7 of the Certificate of Designations) and ending on and including the First Company's Election Conversion Date (as defined in Section 7 of the Certificate of Designations), that number of shares of Common Stock equal to the number of shares of Common Stock issuable upon conversion of such Buyer's First Required Conversion Amount (as defined in Section 7 of the Certificate of Designations) (without regard to any limitations on conversions), plus (c) during the period beginning on and including the Second Company's Conversion Election Notice Date (as defined in Section 8 of the Certificate of Designations) and ending on and including the Second Company's Election Conversion Date (as defined in Section 8 of the Certificate of Designations), that number of shares of Common Stock equal to the number of shares of Common Stock issuable upon conversion of such Buyers Second Required Conversion Amount (as defined in Section 8 of the Certificate of Designations) (without regard to any limitations on conversions). Notwithstanding the foregoing, the restriction on Short Sales set forth in the first sentence of this Section 4(o) shall not apply (a) with respect to any Short Sale at a price greater than or equal to the Fixed Conversion Price (as defined in the Certificate of Designations) of the Initial Preferred Shares then in effect; (b) at any time after the first date after the Initial Closing Date on which the Closing Bid Price of the Common Stock is less than 50% of applicable Closing Price (as defined in the Certificate of Designations) (equitably adjusted for stock splits, stock dividends, stock combinations and other similar transactions) for any 10 trading days during the 12 consecutive trading days immediately preceding such date of determination; (c) on and after any date on which the Common Stock is not listed or quoted on the Nasdaq National Market or The New York Stock Exchange, Inc. or has been suspended from trading on any such exchange (excluding suspensions of not more than one day resulting from business announcements by the Company), or any such delisting or suspension is threatened or pending either (I) in writing by such exchanges or (II) by falling below the minimum listing maintenance requirements of such exchanges; (d) on or after any date on which there shall have occurred an event constituting a Change of Control or a Triggering Event or a Liquidity Default or an event that with the passage of time and without being cured would constitute a Triggering Event or a Liquidity Default; (e) on or after any date on which there shall have been an announcement of a pending, proposed or intended Change of Control; (f) on or after any date on which the Company issues or sells or is deemed to have issued or sold any Convertible Securities or Options (both as defined in the Certificate of Designations) that are convertible into or exercisable or exchangeable for shares of Common Stock at a conversion or exercise price which varies or may vary with the market price of the Common Stock, including by way of one or more reset(s) to a fixed price; (g) on or after the Stockholder Meeting Deadline if the Company fails to receive the Stockholder Approval on or before the Stockholder Meeting Deadline; or (h) with respect to a short sale so long as the Buyer delivers a Conversion Notice (as defined in the Certificate of Designations) within two Business Days of such Short Sale entitling such Buyer to receive a number of shares of Common Stock at least equal to the number of shares of Common Stock sold in such Short Sale. Notwithstanding the foregoing, an Affiliate of ▇▇▇▇▇▇▇▇ Capital Management, Inc. (a Buyer) shall not be subject to the restrictions set forth in this Section 4(o) solely to the extent that such Affiliate
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Restriction on Short Sales. Each Buyer agrees that, subject to the exceptions described below, during the period beginning on the Initial Closing Date and ending on but excluding the earlier of (i) the first date on which such Buyer no longer holds any Preferred Shares and (ii) the date which is 180 days one (1) year after the Initial Closing Date, neither such Buyer nor any of its affiliates shall engage in any transaction constituting a "short sale" (as defined in Rule 3b-3 of the ▇▇▇▇ ▇▇▇) of the Common Stock (collectively, "Short SalesSHORT SALES"); provided, however, that each Buyer and its Affiliates affiliates are entitled to engage in transactions which constitute Short Sales to the extent that following such transaction the aggregate net short position of such Buyer and its Affiliates affiliates does not exceed the sum of (aA) the number of shares of Common Stock equal to the aggregate number of Warrant Shares shares of Common Stock which such Buyer and its Affiliates affiliates have the right to acquire upon exercise of the Warrants held by such Buyer and its Affiliates affiliates (without regard to any limitations on exercises of the Warrants), plus (bB) during the period beginning on and including the First first day of a Company's Mandatory Conversion Election Notice Date Period (as defined in Section 7 of the Certificate of Designations) and ending on and including the First date which is the later of (I) the last day of such Company's Election Mandatory Conversion Date Period and (as defined in Section 7 of II) the Certificate of Designations)date on which the Company has delivered all Conversion Shares relating to all Conversion Notices submitted during such Mandatory Conversion Period, that number of shares of Common Stock equal to the quotient of (i) the Conversion Amount with respect to the number of shares of Common Stock issuable upon conversion of such BuyerPreferred Shares set forth in a Company's First Required Conversion Amount Election Notice (as defined in Section 7 of the Certificate of Designations) for such Buyer and its affiliates with respect to such Company's Mandatory Conversion Period, divided by (without regard to any limitations on conversions), plus ii) the lowest Conversion Price (cas defined in the Certificate of Designations) during the period beginning on and including the Second first day of such Company's Mandatory Conversion Election Notice Date (as defined in Section 8 of the Certificate of Designations) Period and ending on and including the Second last trading day of such Company's Election Mandatory Conversion Date (as defined in Section 8 of the Certificate of Designations), that number of shares of Common Stock equal to the number of shares of Common Stock issuable upon conversion of such Buyers Second Required Conversion Amount (as defined in Section 8 of the Certificate of Designations) (without regard to any limitations on conversions)Period. Notwithstanding the foregoing, the restriction on Short Sales set forth in the first sentence of this Section 4(o4(l) shall not apply (a) with respect to any Short Sale at a price greater than or equal to the Fixed Conversion Price (as defined in the Certificate of Designations) of the Initial Preferred Shares then in effect; (b) at any time on and after the first date after the Initial Closing Date on which the Closing Bid Price of the Common Stock is less than 50% of applicable Closing Price (as defined in the Certificate of Designations) (equitably adjusted for stock splits, stock dividends, stock combinations and other similar transactions) for any 10 trading days during the 12 consecutive trading days immediately preceding such date of determination; (c) on and after any date on which the Common Stock is not listed or quoted on the Nasdaq National Market or The New York Stock Exchange, Inc. or has been suspended from trading on any such exchange (excluding suspensions of not more than one day resulting from business announcements by the Company), or any such delisting or suspension is threatened or pending either (I) in writing by such exchanges or (II) by falling below the minimum listing maintenance requirements of such exchanges; (d) on or after any date on which there shall have occurred an event constituting a Change of Control or a Triggering Event or a Liquidity Default (as defined in Section 3(b) of the Certificate of Designations) or an event that with the passage of time and without being cured would constitute a Triggering Event or a Liquidity DefaultEvent; (eb) on or after any the first date on which there a Change of Control (as defined in Section 4(b) of the Certificate of Designations) shall have been an consummated or the public announcement of a pending, proposed or intended Change of Control; (fc) on or and after any the first date which is at least 90 days after the Closing Date on which the Company issues or sells or is deemed to have issued or sold any Convertible Securities or Options Closing Sale Price (both as defined in the Certificate of Designations) that are convertible into or exercisable or exchangeable for shares of Common Stock at a conversion or exercise price which varies or may vary with the market price of the Common StockStock is less than $3.00 per share (subject to adjustment for stock splits, including by way stock dividends, stock combinations and other similar transactions) for any ten (10) trading days during the fifteen (15) consecutive trading days immediately preceding such date of one or more reset(s) to a fixed pricedetermination; (gd) on or and after the Stockholder Meeting Deadline if first date which is at least 90 days after the Company fails Closing Date on which the Closing Sale Price of the Common Stock is less than $2.30 per share (subject to receive the Stockholder Approval on or before the Stockholder Meeting Deadlineadjustment for stock splits, stock dividends, stock combinations, and other similar transactions) for any three (3) consecutive trading days preceding such date of determination; or (he) with respect to a short sale Short Sale so long as the such Buyer delivers a Conversion Notice (as defined in the Certificate of Designations) within two (2) Business Days of such Short Sale entitling such Buyer to receive a number of shares of Common Stock at least equal to the number of shares of Common Stock sold in such Short Sale. Notwithstanding ; (f) with respect to any transaction involving options on the foregoingCommon Stock; or (g) on and after the first date on which the Company shall have failed to be in compliance with the Certificate of Designations, an Affiliate of ▇▇▇▇▇▇▇▇ Capital Managementthis Agreement, Inc. (a Buyer) shall not be subject to the restrictions set forth in this Section 4(o) solely to Warrants and the extent that such AffiliateRegistration Rights Agreement.
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