Common use of Conversion Cap Clause in Contracts

Conversion Cap. Notwithstanding anything to the contrary in this Indenture, (a) a Person or any Affiliate thereof holding the Notes shall not be entitled to convert any Notes (and the Issuer shall not so convert any Notes), (b) the Issuer shall not be entitled to settle any cash payments owing to any Person of Notes in shares of its Common Stock and (iii) shares of any acquiror (or successor) shall not be issued upon conversion pursuant to the adjustment mechanisms contained in Section 5.05 in connection with a transaction governed by Section 5.05 or upon a Fundamental Change of Control to the extent, and only to the extent, such conversion, share settlement or issuance would cause such Person, together with its Affiliates, to become a beneficial owner (as determined pursuant to Section 13 of the Exchange Act and Rules 13d-3 and 13d-5 thereunder) of more than 9.9% of the issued and outstanding shares of Common Stock (or such equivalent shares of an acquiror or successor) (the “Conversion Cap”). The Issuer shall, within three Business Days of delivery by a Holder of a Conversion Notice, notify such Holder in writing of (i) the number of shares of Common Stock that would be issuable to such Holder if such conversion requested in such Conversion Notice were effected in full and (ii) the number of issued and outstanding shares of Common Stock of the Issuer as of the most recent date such information is available to the Issuer. Whereupon, within three Business Days of such notice, the Issuer shall issue to such Holder the number of shares of Common Stock issuable upon conversion up to the Conversion Cap. In connection with the performance of this Section 5.13, such Holder agrees to furnish to the Issuer any information reasonably requested by the Issuer in connection with the Conversion Cap amount calculations. Notwithstanding anything to the contrary, to the extent any such issuance would cause a Holder or an Affiliate thereof to be a “beneficial owner” of more than 9.9% of the issued and outstanding shares of Common Stock (or successor shares), such conversion, share settlement or issuance upon conversion as the case may be shall be void and of no effect. The limitations set forth in this Section 5.13 may not be waived at any time by any Holder. Any acquiror (or successor) or the Issuer shall expressly assume the obligations of the Issuer in this Section 5.13 with respect to the Notes in connection with any transaction governed by Section 5.05 or otherwise in connection with a Fundamental Change of Control.

Conversion Cap. Notwithstanding anything contained herein to the contrary in this Indenturecontrary, (a) a Person or any Affiliate thereof holding the Notes Corporation shall not be entitled prior to the Mandatory Conversion Date effect any conversion of the Mandatory Convertible Preferred Stock for shares of Common Stock, and a Holder shall not have the right to voluntarily convert any Notes (and portion of the Issuer shall not so convert any Notes), (b) the Issuer shall not be entitled to settle any cash payments owing to any Person of Notes in Mandatory Convertible Preferred Stock for shares of its Common Stock and (iii) shares of any acquiror (or successor) shall not be issued upon conversion pursuant Stock, to the adjustment mechanisms contained in Section 5.05 in connection with a transaction governed by Section 5.05 or upon a Fundamental Change of Control extent that after giving effect to the extent, and only to the extent, such conversion, share settlement or issuance would cause such Person, together with its Affiliates, to become a beneficial owner (as determined pursuant to Section 13 of the Exchange Act and Rules 13d-3 and 13d-5 thereunder) of more than 9.9% of the issued and outstanding shares of Common Stock (or upon such equivalent conversion, any of such Holder, another person having beneficial ownership of such shares of Common Stock or any group of which such Holder or any such other person is a member (any such other person or group, an acquiror or successor) “Additional Beneficial Owner”), would beneficially own in excess of 9.99% of the outstanding shares of the Common Stock (such limitation, the “Conversion Cap”). Upon the request of a Holder, the Corporation shall promptly, and in any event within one trading day of such request, confirm to such Holder the number shares of Common Stock then outstanding. Prior to any conversion of the Mandatory Convertible Preferred Stock, each Holder shall either (x) certify to the Corporation that neither such Holder nor any Additional Beneficial Owner would beneficially own in excess of 9.99% of the outstanding shares of the Common Stock upon giving effect to such conversion or (y) identify to the Corporation each other person who would be, or would be a member of a group that would be, an Additional Beneficial Owner of any of such shares of the Common Stock as would be issued upon giving effect to such conversion and provide to the Corporation such other information as it shall reasonably request for the purpose of enforcing the Conversion Cap. The Issuer shall, within three Business Days of delivery Conversion Cap may be terminated by a Holder of a Conversion Notice, notify with respect to such Holder in writing upon 61 days’ advance written notice to the Corporation. For purposes of (i) this Section 16, the number of shares of the Common Stock that would beneficially owned by any person shall be issuable to such Holder if such conversion requested calculated in such Conversion Notice were effected accordance with Rule 16a-1(a)(1) promulgated under the Exchange Act, or any successor rule, in full and (ii) the number of issued and outstanding shares of Common Stock of the Issuer as of the most recent date such information is available to the Issuer. Whereupon, within three Business Days of such notice, the Issuer shall issue to such Holder the number of shares of Common Stock issuable upon conversion up each case giving effect to the Conversion Cap. In connection with the performance of addition, “group” as used in this Section 5.13, such Holder agrees to furnish to 16 has the Issuer any information reasonably requested by the Issuer meaning set forth in connection with the Conversion Cap amount calculations. Notwithstanding anything to the contrary, to the extent any such issuance would cause a Holder or an Affiliate thereof to be a “beneficial owner” of more than 9.9% Section 13(d) of the issued Exchange Act and outstanding the rules and regulations promulgated thereunder. Any shares of Common Stock (or successor shares), such conversion, share settlement or issuance upon conversion as due to Holder that are not delivered due to the case may be Conversion Cap shall be void and delivered within three (3) Business Days of no effect. The limitations set forth in this Section 5.13 may not be waived at any time by any Holder. Any acquiror (or successor) or the Issuer shall expressly assume the obligations of the Issuer in this Section 5.13 with respect Holder providing notice to the Notes in connection Corporation that such delivery will comply with any transaction governed by Section 5.05 or otherwise in connection with a Fundamental Change of Controlthe Conversion Cap.