Common use of Exercise; Issuance of Certificates; Acknowledgement Clause in Contracts

Exercise; Issuance of Certificates; Acknowledgement. To the extent that this Warrant is vested and exercisable with respect to any Warrant Shares, this Warrant shall be exercisable at the option of the holder of record hereof, at any time or from time to time up to the Expiration Date for all or any part of such Warrant Shares (but not for a fraction of a share) for which this Warrant is vested and exercisable at such time. The Company agrees that the shares of Common Stock purchased under this Warrant shall be and are deemed to be issued to the Holder hereof as the record owner of such shares as of the close of business on the date on which this Warrant shall have been surrendered, properly endorsed, the completed, executed Form of Subscription delivered and payment made for such shares. Certificates for the shares of the Common Stock so purchased, together with any other securities or property to which the Holder hereof is entitled upon such exercise, shall be delivered to the Holder hereof by the Company at the Company’s expense within three business days after the rights represented by this Warrant have been so exercised, and may bear a restrictive legend in substantially the form set forth in Section 3.6 of the Agreement. Each certificate so delivered shall be in such denominations of the Warrant Shares as may be requested by the Holder hereof and shall be registered in the name of such Holder. In case of a purchase of less than all the Warrant Shares, the Company shall execute and deliver to Holder within seven business days an Acknowledgement in the form attached hereto indicating the number of Warrant Shares which remain subject to this Warrant, if any, and the number of Warrant Shares for which this Warrant is vested and exercisable at such time, if any. Notwithstanding anything to the contrary contained herein, unless the Holder otherwise notifies the Company or the Exercise Price exceeds the fair market value of a Warrant Share (as determined in Section 2 below), this Warrant shall be deemed to be automatically exercised using the Net Issuance Method pursuant to Section 2 hereof immediately prior to the time on the Expiration Date at which this Warrant ceases to be exercisable. In addition, the Holder may specify in its Form of Subscription delivered to the Company (along with payment for the shares by cash or wire transfer) that the Holder’s exercise of any portion of this Warrant is contingent upon the closing of a then-pending Fundamental Transaction (as defined below). Upon any exercise of this Warrant, the Holder shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the Warrant Shares so purchased are being acquired solely for the Holder’s own account and not as a nominee for any other party, for investment and not with a view toward distribution or resale and that such Holder is an “accredited investor” as such term is defined in Rule 501(a)(1) of Regulation D promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended. If the Holder cannot make such representations because they would be factually incorrect, it shall be a condition to such Holder’s exercise of this Warrant that the Company receive such other representations as the Company considers reasonably necessary to assure the Company that the issuance of its securities upon exercise of this Warrant shall not violate any United States or state securities laws.

Exercise; Issuance of Certificates; Acknowledgement. To the extent that this This Warrant is vested and exercisable with respect to any Warrant Shares, this Warrant shall be exercisable at the option of the holder of record hereof, at any time or from time to time from or after the Initial Exercise Date up to the Expiration Date for all or any part of such the Warrant Shares (but not for a fraction of a share) for which this Warrant is vested and exercisable at such timemay be purchased hereunder. The Company agrees that the shares of Common Series A Preferred Stock purchased under this Warrant shall be and are deemed to be issued to the Holder hereof as the record owner of such shares as of the close of business on the date on which this Warrant shall have been surrendered, properly endorsed, the completed, executed Form of Subscription delivered and payment made for such shares. Certificates for the shares of the Common Series A Preferred Stock so purchased, together with any other securities or property to which the Holder hereof is entitled upon such exercise, shall be delivered to the Holder hereof by the Company at the Company’s expense within three business days a reasonable time after the rights represented by this Warrant have been so exercised, and may bear a restrictive legend in substantially the form set forth in Section 3.6 of the Agreement. Each certificate so delivered shall be in such denominations of the Warrant Shares as may be requested by the Holder hereof and shall be registered in the name of such Holder. In case of a purchase of less than all the Warrant Shares, the Company shall execute and deliver to Holder within seven business days a reasonable time an Acknowledgement in the form attached hereto indicating the number of Warrant Shares which remain subject to this Warrant, if any, and the number of Warrant Shares for which this Warrant is vested and exercisable at such time, if any. Notwithstanding anything to the contrary contained herein, unless the Holder otherwise notifies the Company or the Exercise Price exceeds the fair market value of a Warrant Share (as determined in Section 2 below), this Warrant shall be deemed to be automatically exercised using the Net Issuance Method pursuant to Section 2 hereof immediately prior to the time on the Expiration Date at which this Warrant ceases to be exercisable. In addition, the Holder may specify in its Form of Subscription delivered to the Company (along with payment for the shares by cash or wire transfer) that the Holder’s exercise of any portion of this Warrant is contingent upon the closing of a then-pending Fundamental Transaction (as defined below). Upon any exercise of this Warrant, the Holder shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the Warrant Shares so purchased are being acquired solely for the Holder’s own account and not as a nominee for any other party, for investment and not with a view toward distribution or resale and that such Holder is an “accredited investor” as such term is defined in Rule 501(a)(1) of Regulation D promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended. If the Holder cannot make such representations because they would be factually incorrect, it shall be a condition to such Holder’s exercise of this Warrant that the Company receive such other representations as the Company considers reasonably necessary to assure the Company that the issuance of its securities upon exercise of this Warrant shall not violate any United States or state securities laws.

Exercise; Issuance of Certificates; Acknowledgement. To the extent that this This Warrant is vested and exercisable with respect to any Warrant Shares, this Warrant shall be exercisable at the option of the holder of record hereof, at any time or from time to time from or after issuance up to the Expiration Date for all or any part of such the Warrant Shares (but not for a fraction of a share) for which this Warrant is vested and exercisable at such timemay be purchased hereunder. The Company agrees that the shares of Common Stock purchased under this Warrant shall be and are deemed to be issued to the Holder hereof as the record owner of such shares as of the close of business on the date on which this Warrant shall have been surrendered, properly endorsed, the completed, executed Form of Subscription delivered and payment made for such shares. Certificates for the shares of the Common Stock so purchased, together with any other securities or property to which the Holder hereof is entitled upon such exercise, shall be delivered to the Holder hereof by the Company at the Company’s expense within three business days a reasonable time after the rights represented by this Warrant have been so exercised, and may bear a restrictive legend in substantially the form set forth in Section 3.6 of the Agreement. Each certificate so delivered shall be in such denominations of the Warrant Shares as may be requested by the Holder hereof and shall be registered in the name of such Holder. In case of a purchase of less than all the Warrant Shares, the Company shall execute and deliver to Holder within seven business days a reasonable time an Acknowledgement in the form attached hereto indicating the number of Warrant Shares which remain subject to this Warrant, if any, and the number of Warrant Shares for which this Warrant is vested and exercisable at such time, if any. Notwithstanding anything to the contrary contained herein, unless the Holder otherwise notifies the Company or the Exercise Price exceeds the fair market value of a Warrant Share (as determined in Section 2 below), this Warrant shall be deemed to be automatically exercised using the Net Issuance Method pursuant to Section 2 hereof immediately prior to the time on the Expiration Date at which this Warrant ceases to be exercisable. In addition, the Holder may specify in its Form of Subscription delivered to the Company (along with payment for the shares by cash or wire transfer) that the Holder’s exercise of any portion of this Warrant is contingent upon the closing of a then-pending Fundamental Transaction (as defined below). Upon any exercise of this Warrant, the Holder shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the Warrant Shares so purchased are being acquired solely for the Holder’s own account and not as a nominee for any other party, for investment and not with a view toward distribution or resale and that such Holder is an “accredited investor” as such term is defined in Rule 501(a)(1) of Regulation D promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended. If the Holder cannot make such representations because they would be factually incorrect, it shall be a condition to such Holder’s exercise of this Warrant that the Company receive such other representations as the Company considers reasonably necessary to assure the Company that the issuance of its securities upon exercise of this Warrant shall not violate any United States or state securities laws.

Exercise; Issuance of Certificates; Acknowledgement. To the extent that this This Warrant is vested and exercisable with respect to any Warrant Shares, this Warrant shall be exercisable at the option of the holder of record hereof, at any time or from time to time from or after the Initial Exercise Date up to the Expiration Date for all or any part of such the Warrant Shares Securities (but not for a fraction of a share) for which this Warrant is vested and exercisable at such timemay be purchased hereunder. The Company agrees that the shares of Common Stock Warrant Securities purchased under this Warrant hereunder shall be and are deemed to be issued to the Holder hereof as the record owner of such shares as of the close of business on the date on which this Warrant shall have been surrendered, properly endorsed, the completed, executed Form of Subscription delivered and payment made for such shares. Certificates for the shares of the Common Stock Warrant Securities so purchased, together with any other securities or property to which the Holder hereof is entitled upon such exercise, shall be delivered to the Holder hereof by the Company at the Company’s expense within three business days a reasonable time after the rights represented by this Warrant have been so exercised, and may bear a restrictive legend in substantially the form set forth in Section 3.6 of the Agreement. Each certificate so delivered shall be in such denominations of the Warrant Shares Securities as may be requested by the Holder hereof and shall be registered in the name of such Holder. In case of a purchase of less than all the Warrant SharesSecurities, the Company shall execute and deliver to Holder within seven business days a reasonable time an Acknowledgement in the form attached hereto indicating the number of Warrant Shares Securities which remain subject to this Warrant, if any, and the number of Warrant Shares for which this Warrant is vested and exercisable at such time, if any. Notwithstanding anything to the contrary contained herein, unless the Holder otherwise notifies the Company or the Exercise Price exceeds the fair market value of a Warrant Share (as determined in Section 2 below), this Warrant shall be deemed to be automatically exercised using the Net Issuance Method pursuant to Section 2 hereof immediately prior to the time on the Expiration Date at which this Warrant ceases to be exercisable. In addition, the Holder may specify in its Form of Subscription delivered to the Company (along with payment for the shares by cash or wire transfer) that the Holder’s exercise of any portion of this Warrant is contingent upon the closing of a then-pending Fundamental Transaction (as defined below). Upon any exercise of this Warrant, the Holder shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the Warrant Shares so purchased are being acquired solely for the Holder’s own account and not as a nominee for any other party, for investment and not with a view toward distribution or resale and that such Holder is an “accredited investor” as such term is defined in Rule 501(a)(1) of Regulation D promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended. If the Holder cannot make such representations because they would be factually incorrect, it shall be a condition to such Holder’s exercise of this Warrant that the Company receive such other representations as the Company considers reasonably necessary to assure the Company that the issuance of its securities upon exercise of this Warrant shall not violate any United States or state securities laws.

Exercise; Issuance of Certificates; Acknowledgement. To the extent that this This Warrant is vested and exercisable with respect to any Warrant Shares, this Warrant shall be exercisable at the option of the holder of record hereof, at any time or from time to time from the date hereof up to the Expiration Date for all or any part of such the Warrant Shares (but not for a fraction of a share) for which this Warrant is vested and exercisable at such timemay be purchased hereunder. The Company agrees that the shares of Common Stock Warrant Shares purchased under this Warrant shall be and are deemed to be issued to the Holder hereof as the record owner of such shares Warrant Shares as of the close of business on the date on which this Warrant shall have been surrendered, properly endorsed, the completed, executed Form of Subscription and supporting documentation delivered and payment made for such sharesWarrant Shares. Certificates for the shares of the Common Stock Warrant Shares so purchased, together with any other securities or property to which the Holder hereof is entitled upon such exercise, shall be delivered to the Holder hereof by the Company at the Company’s expense as soon as reasonably practicable but in any event within three 20 business days after the rights represented by this Warrant have been so exercised, and may bear a restrictive legend in substantially the form set forth in Section 3.6 of the Agreement. Each certificate so delivered shall be in such denominations of the Warrant Shares as may be requested by the Holder hereof and shall be registered in the name of such Holder. In case of a purchase of less than all the Warrant Shares, the Company shall execute and deliver to Holder within seven business days an Acknowledgement in the form attached hereto indicating the number of Warrant Shares which remain subject to this Warrant, if any, and the number of Warrant Shares for which this Warrant is vested and exercisable at such time, if anyor its assignee. Notwithstanding anything to the contrary contained herein, unless the Holder otherwise notifies the Company or the Exercise Price exceeds the fair market value of a Warrant Share (as determined in Section 2 below)Company, this Warrant shall be deemed to be automatically exercised using the Net Issuance Method method pursuant to Section 2 hereof immediately prior to the time on the Expiration Date at which this Warrant ceases to be exercisable. In addition, the Holder may specify in its Form of Subscription delivered to the Company (along with payment for the shares by cash or wire transfer) that the Holder’s exercise of any portion of this Warrant is contingent upon the closing of a then-pending Fundamental Transaction (as defined below). Upon any exercise of this Warrant, the Holder shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the Warrant Shares so purchased are being acquired solely for the Holder’s own account and not as a nominee for any other party, for investment and not with a view toward distribution or resale and that such Holder is an “accredited investor” as such term is defined in Rule 501(a)(1) of Regulation D promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended. If the Holder cannot make such representations because they would be factually incorrect, it shall be a condition to such Holder’s exercise of this Warrant that the Company receive such other representations as the Company considers reasonably necessary to assure the Company that the issuance of its securities upon exercise of this Warrant shall not violate any United States or state securities laws.

Exercise; Issuance of Certificates; Acknowledgement. To the extent that this This Warrant is vested and exercisable with respect to any Warrant Shares, this Warrant shall be exercisable at the option of the holder of record hereof, at any time or from time to time from or after the Issuance Date up to the Expiration Date for all or any part of such the Warrant Shares (but not for a fraction of a share) for ), which this Warrant is vested and exercisable at such timemay be purchased hereunder. The Company agrees that the shares of Common Stock purchased under this Warrant shall be and are deemed to be issued to the Holder hereof as the record owner of such shares as of the close of business on the date on which this Warrant shall have been surrendered, properly endorsed, the completed, executed Form of Subscription delivered and payment made for such shares. Certificates for the shares of the Common Stock so purchased, together with any other securities or property to which the Holder hereof is entitled upon such exercise, shall be delivered to the Holder hereof by the Company Company’s transfer agent at the Company’s expense within three business days a reasonable time after the rights represented by this Warrant have been so exercised, and may bear a restrictive legend in substantially the form set forth in Section 3.6 of the Agreement. Each certificate so delivered shall be in such denominations of the Warrant Shares as may be requested by the Holder hereof and shall be registered in the name of such Holder. In case of a purchase of less than all the Warrant Shares, the Company shall execute and deliver to Holder within seven business days a reasonable time an Acknowledgement in the form attached hereto indicating the number of Warrant Shares which remain subject to this Warrant, if any, and the number of Warrant Shares for which this Warrant is vested and exercisable at such time, if any. Notwithstanding anything to the contrary contained herein, unless the Holder otherwise notifies the Company or the Exercise Price exceeds the fair market value of a Warrant Share (as determined in Section 2 below), this Warrant shall be deemed to be automatically exercised using the Net Issuance Method pursuant to Section 2 hereof immediately prior to the time on the Expiration Date at which this Warrant ceases to be exercisable. In addition, the Holder may specify in its Form of Subscription delivered to the Company (along with payment for the shares by cash or wire transfer) that the Holder’s exercise of any portion of this Warrant is contingent upon the closing of a then-pending Fundamental Transaction (as defined below). Upon any exercise of this Warrant, the Holder shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the Warrant Shares so purchased are being acquired solely for the Holder’s own account and not as a nominee for any other party, for investment and not with a view toward distribution or resale and that such Holder is an “accredited investor” as such term is defined in Rule 501(a)(1) of Regulation D promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended. If the Holder cannot make such representations because they would be factually incorrect, it shall be a condition to such Holder’s exercise of this Warrant that the Company receive such other representations as the Company considers reasonably necessary to assure the Company that the issuance of its securities upon exercise of this Warrant shall not violate any United States or state securities laws.

Exercise; Issuance of Certificates; Acknowledgement. This Warrant shall not be exercisable unless and until the Company has issued any shares of Common Stock after the Effective Date. To the extent that this Warrant is vested and exercisable with respect to there exists any Warrant SharesShares during the Term, this Warrant shall be exercisable at any time from time to time from and after the Effective Date (as defined in that certain Confidential Settlement Agreement, dated December 11, 2009, by and between Xxxx Innovations, Inc. and Xxxx Technologies, Inc., and Xxxxxx Medical, Inc. (the “Agreement”)) up to and including 5:00 p.m. (Pacific Time) on the three (3) year anniversary of the Effective Date (such duration being the “Term”), upon delivery to the Company in accordance with Section 9 below of (i) the Form of Subscription attached hereto duly completed and executed, and (ii) payment pursuant to Section 2 of the aggregate Stock Purchase Price for the number of Warrant Shares for which this Warrant is being exercised determined in accordance with the provisions hereof. This Warrant is exercisable at the option of the holder of record hereof, at any time or from time to time up to the Expiration Date Holder for all or any part of such the Warrant Shares (but not for a fraction of a share) for which this Warrant is vested and exercisable at such may be purchased hereunder from time to time, if any. The Company agrees that the shares of Common Stock purchased under this Warrant shall be and are deemed to be issued to the Holder hereof as the record owner of such shares as of the close of business on the date on which this Warrant shall have been surrendered, properly endorsed, the completed, duly completed and executed Form of Subscription is delivered in accordance with Section 9 and payment made is received for such shares. Certificates for the shares of the Common Stock so purchased, together with any other securities or property to which the Holder hereof is entitled upon such exercise, shall be delivered to the Holder hereof by the Company at the Company’s expense within three business days a reasonable time after the rights represented by this Warrant have been so exercisedexercised and in any event no later than three (3) business days. Any shares of Common Stock issued pursuant to this Warrant shall have the following legend; provided that such legend will be removed from such issued shares when such shares may be sold without applicable volume limits under Rule 144: “THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, and may bear a restrictive legend in substantially the form set forth in Section 3.6 of the Agreement. AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF.” Each certificate Certificate so delivered shall be in such denominations of the Warrant Shares as may be requested by the Holder hereof and shall be registered in the name of such Holder. In case of a purchase of less than all the Warrant Shares, the Company shall execute and deliver to Holder within seven business days an Acknowledgement in the form attached hereto indicating the number of Warrant Shares which remain subject to this Warrant, if any, and the number of Warrant Shares for which this Warrant is vested and exercisable at such time, if any. Notwithstanding anything to the contrary contained herein, unless the Holder otherwise notifies the Company or the Exercise Price exceeds the fair market value of a Warrant Share (as determined in Section 2 below)Company, this Warrant shall be deemed to be automatically exercised using the Net Issuance Method pursuant to Section 2 hereof immediately prior to the time date on the Expiration Date at which this Warrant ceases to be exercisable. In addition, the Holder may specify in its Form of Subscription delivered to the Company (along with payment for the shares by cash or wire transfer) that the Holder’s exercise of any portion of this Warrant is contingent upon the closing of a then-pending Fundamental Transaction (as defined below). Upon any exercise of this Warrant, the Holder shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the Warrant Shares so purchased are being acquired solely for the Holder’s own account and not as a nominee for any other party, for investment and not with a view toward distribution or resale and that such Holder is an “accredited investor” as such term is defined in Rule 501(a)(1) of Regulation D promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended. If the Holder cannot make such representations because they would be factually incorrect, it shall be a condition to such Holder’s exercise of this Warrant that the Company receive such other representations as the Company considers reasonably necessary to assure the Company that the issuance of its securities upon exercise of this Warrant shall not violate any United States or state securities laws.

Exercise; Issuance of Certificates; Acknowledgement. To the extent that this This Warrant is vested and exercisable with respect to any Warrant Shares, this Warrant shall be exercisable at the option of the holder of record hereof, at any time or from time to time from or after the Initial Exercise Date up to the Expiration Date for all or any part of such the Warrant Shares (but not for a fraction of a share) for which this Warrant is vested and exercisable at such timemay be purchased hereunder. The Company agrees that the shares of Common Preferred Stock purchased under this Warrant shall be and are deemed to be issued to the Holder hereof as the record owner of such shares as of the close of business on the date on which this Warrant shall have been surrendered, properly endorsed, the completed, executed Form of Subscription delivered and payment made for such shares. Certificates for the shares of the Common Preferred Stock so purchased, together with any other securities or property to which the Holder hereof is entitled upon such exercise, shall be delivered to the Holder hereof by the Company at the Company’s expense within three business days a reasonable time after the rights represented by this Warrant have been so exercised, and may bear a restrictive legend in substantially the form set forth in Section 3.6 of the Agreement. Each certificate so delivered shall be in such denominations of the Warrant Shares as may be requested by the Holder hereof and shall be registered in the name of such Holder. In case of a purchase of less than all the Warrant Shares, the Company shall execute and deliver to Holder within seven business days a reasonable time an Acknowledgement in the form attached hereto indicating the number of Warrant Shares which remain subject to this Warrant, if any, and the number of Warrant Shares for which this Warrant is vested and exercisable at such time, if any. Notwithstanding anything to the contrary contained herein, unless the Holder otherwise notifies the Company or the Exercise Price exceeds the fair market value of a Warrant Share (as determined in Section 2 below)Company, this Warrant shall be deemed to be automatically exercised using the Net Issuance Method pursuant to Section 2 hereof immediately prior to the time on the Expiration Date at which this Warrant ceases to be exercisable. In addition, the Holder may specify in its Form of Subscription delivered to the Company (along with payment for the shares by cash or wire transfer) that the Holder’s exercise of any portion of this Warrant is contingent upon the closing of a then-pending Fundamental Transaction (as defined below). Upon any exercise of this Warrant, the Holder shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the Warrant Shares so purchased are being acquired solely for the Holder’s own account and not as a nominee for any other party, for investment and not with a view toward distribution or resale and that such Holder is an “accredited investor” as such term is defined in Rule 501(a)(1) of Regulation D promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended. If the Holder cannot make such representations because they would be factually incorrect, it shall be a condition to such Holder’s exercise of this Warrant that the Company receive such other representations as the Company considers reasonably necessary to assure the Company that the issuance of its securities upon exercise of this Warrant shall not violate any United States or state securities laws.

Exercise; Issuance of Certificates; Acknowledgement. To the extent that this This Warrant is vested and exercisable with respect to any Warrant Shares, this Warrant shall be exercisable at the option of the holder of record hereof, at any time or from time to time from or after the Initial Exercise Date up to the Expiration Date for all or any part of such the Warrant Shares (but not for a fraction of a sharean Ordinary Share) for which this Warrant is vested and exercisable at such timemay be purchased hereunder. The Company agrees that the shares of Common Stock Ordinary Shares purchased under this Warrant shall be and are deemed to be issued to the Holder hereof as the record owner of such shares Ordinary Shares as of the close of business on the date on which this Warrant shall have been surrendered, properly endorsed, the completed, executed Form of Subscription delivered and payment made for such sharesOrdinary Shares. Certificates for the shares of the Common Stock Ordinary Shares so purchased, together with any other securities or property to which the Holder hereof is entitled upon such exercise, shall be delivered to the Holder hereof by the Company at the Company’s expense within three business days a reasonable time after the rights represented by this Warrant have been so exercised, and may bear a restrictive legend in substantially the form set forth in Section 3.6 of the Agreement. Each certificate so delivered shall be in such denominations of the Warrant Shares as may be requested by the Holder hereof and shall be registered in the name of such Holder. In case of a purchase of less than all the Warrant Shares, the Company shall execute and deliver to Holder within seven business days a reasonable time an Acknowledgement in the form attached hereto indicating the number of Warrant Shares which remain subject to this Warrant, if any, and the number of Warrant Shares for which this Warrant is vested and exercisable at such time, if any. Notwithstanding anything to the contrary contained herein, unless the Holder otherwise notifies the Company or the Exercise Price exceeds the fair market value of a Warrant Share (as determined in Section 2 below), this Warrant shall be deemed to be automatically exercised using the Net Issuance Method pursuant to Section 2 hereof immediately prior to the time on the Expiration Date at which this Warrant ceases to be exercisable. In addition, the Holder may specify in its Form of Subscription delivered to the Company (along with payment for the shares by cash or wire transfer) that the Holder’s exercise of any portion of this Warrant is contingent upon the closing of a then-pending Fundamental Transaction (as defined below). Upon any exercise of this Warrant, the Holder shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the Warrant Shares so purchased are being acquired solely for the Holder’s own account and not as a nominee for any other party, for investment and not with a view toward distribution or resale and that such Holder is an “accredited investor” as such term is defined in Rule 501(a)(1) of Regulation D promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended. If the Holder cannot make such representations because they would be factually incorrect, it shall be a condition to such Holder’s exercise of this Warrant that the Company receive such other representations as the Company considers reasonably necessary to assure the Company that the issuance of its securities upon exercise of this Warrant shall not violate any United States or state securities laws.

Exercise; Issuance of Certificates; Acknowledgement. To the extent that this This Warrant is vested and exercisable with respect to any Warrant Shares, this Warrant shall be exercisable at the option of the holder of record hereof, at any time or from time to time from or after the Initial Exercise Date up to the Expiration Date for all or any part of such the Warrant Shares (but not for a fraction of a share) for which this Warrant is vested and exercisable at such timemay be purchased hereunder. The Company agrees that the shares of Common Stock Warrant Shares purchased under this Warrant hereunder shall be and are deemed to be issued to the Holder hereof as the record owner of such shares as of the close of business on the date on which this Warrant shall have been surrendered, properly endorsed, the completed, executed Form of Subscription delivered and payment made for such shares. Certificates for the shares of the Common Stock Warrant Shares so purchased, together with any other securities or property to which the Holder hereof is entitled upon such exercise, shall be delivered to the Holder hereof by the Company at the Company’s expense within three business days a reasonable time after the rights represented by this Warrant have been so exercised, and may bear a restrictive legend in substantially the form set forth in Section 3.6 of the Agreement. Each certificate so delivered shall be in such denominations of the Warrant Shares as may be requested by the Holder hereof and shall be registered in the name of such Holder. In case of a purchase of less than all the Warrant Shares, the Company shall execute and deliver to Holder within seven business days a reasonable time an Acknowledgement in the form attached hereto indicating the number of Warrant Shares which remain subject to this Warrant, if any, and the number of Warrant Shares for which this Warrant is vested and exercisable at such time, if any. Notwithstanding anything to the contrary contained herein, unless the Holder otherwise notifies the Company or the Exercise Price exceeds the fair market value of a Warrant Share (as determined in Section 2 below), this Warrant shall be deemed to be automatically exercised using the Net Issuance Method pursuant to Section 2 hereof immediately prior to the time on the Expiration Date at which this Warrant ceases to be exercisable. In addition, the Holder may specify in its Form of Subscription delivered to the Company (along with payment for the shares by cash or wire transfer) that the Holder’s exercise of any portion of this Warrant is contingent upon the closing of a then-pending Fundamental Transaction (as defined below). Upon any exercise of this Warrant, the Holder shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the Warrant Shares so purchased are being acquired solely for the Holder’s own account and not as a nominee for any other party, for investment and not with a view toward distribution or resale and that such Holder is an “accredited investor” as such term is defined in Rule 501(a)(1) of Regulation D promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended. If the Holder cannot make such representations because they would be factually incorrect, it shall be a condition to such Holder’s exercise of this Warrant that the Company receive such other representations as the Company considers reasonably necessary to assure the Company that the issuance of its securities upon exercise of this Warrant shall not violate any United States or state securities laws.

Exercise; Issuance of Certificates; Acknowledgement. To the extent that this This Warrant is vested and exercisable with respect to any Warrant Shares, this Warrant shall be exercisable at the option of the holder of record hereof, hereof at any time or from time to time from or after the date hereof up to the Expiration Date for all or any part of such the Warrant Shares (but not for a fraction of a share) for which this Warrant is vested and exercisable at such timemay be purchased hereunder. The Company agrees that the shares of Common Stock purchased under this Warrant shall be and are deemed to be issued to the Holder hereof as the record owner of such shares as of the close of business on the date on which this Warrant shall have been surrendered, properly endorsed, the completed, executed Form of Subscription delivered and payment made for such shares. Certificates for the shares of the Common Stock so purchased, together with any other securities or property to which the Holder hereof is entitled upon such exercise, shall be delivered to the Holder hereof by the Company at the Company’s expense within three business days a reasonable time after the rights represented by this Warrant have been so exercised, and may bear a restrictive legend in substantially the form set forth in Section 3.6 of the Agreement. Each certificate so delivered shall be in such denominations of the Warrant Shares as may be requested by the Holder hereof and shall be registered in the name of such Holder. In case of a purchase of less than all the Warrant Shares, the Company shall execute and deliver to Holder within seven business days a reasonable time an Acknowledgement in the form attached hereto indicating the number of Warrant Shares which remain subject to this Warrant, if any, and the number of Warrant Shares for which this Warrant is vested and exercisable at such time, if any. Notwithstanding anything to the contrary contained herein, unless the Holder otherwise notifies the Company or the Exercise Price exceeds the fair market value of a Warrant Share (as determined in Section 2 below), this Warrant shall be deemed to be automatically exercised using the Net Issuance Method pursuant to Section 2 hereof immediately prior to the time on the Expiration Date at which this Warrant ceases to be exercisable. In addition, the Holder may specify in its Form of Subscription delivered to the Company (along with payment for the shares by cash or wire transfer) that the Holder’s exercise of any portion of this Warrant is contingent upon the closing of a then-pending Fundamental Transaction (as defined below). Upon any exercise of this Warrant, the Holder shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the Warrant Shares so purchased are being acquired solely for the Holder’s own account and not as a nominee for any other party, for investment and not with a view toward distribution or resale and that such Holder is an “accredited investor” as such term is defined in Rule 501(a)(1) of Regulation D promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended. If the Holder cannot make such representations because they would be factually incorrect, it shall be a condition to such Holder’s exercise of this Warrant that the Company receive such other representations as the Company considers reasonably necessary to assure the Company that the issuance of its securities upon exercise of this Warrant shall not violate any United States or state securities laws.

Exercise; Issuance of Certificates; Acknowledgement. To the extent that this This Warrant is vested and exercisable with respect to any Warrant Shares, this Warrant shall be exercisable at the option of the holder of record hereof, at any time or from time to time from or after the Initial Exercise Date up to the Expiration Date for all or any part of such the Warrant Shares (but not for a fraction of a share) for which this Warrant is vested and exercisable at such timemay be purchased hereunder. The Company agrees that the shares of Common Series C Preferred Stock purchased under this Warrant shall be and are deemed to be issued to the Holder hereof as the record owner of such shares as of the close of business on the date on which this Warrant shall have been surrendered, properly endorsed, the completed, executed Form of Subscription delivered and payment made for such shares. Certificates for the shares of the Common Series C Preferred Stock so purchased, together with any other securities or property to which the Holder hereof is entitled upon such exercise, shall be delivered to the Holder hereof by the Company at the Company’s expense within three business days a reasonable time after the rights represented by this Warrant have been so exercised, and may bear a restrictive legend in substantially the form set forth in Section 3.6 of the Agreement. Each certificate so delivered shall be in such denominations of the Warrant Shares as may be requested by the Holder hereof and shall be registered in the name of such Holder. In case of a purchase of less than all the Warrant Shares, the Company shall execute and deliver to Holder within seven business days a reasonable time an Acknowledgement in the form attached hereto indicating the number of Warrant Shares which remain subject to this Warrant, if any, and the number of Warrant Shares for which this Warrant is vested and exercisable at such time, if any. Notwithstanding anything to the contrary contained herein, unless the Holder otherwise notifies the Company or the Exercise Price exceeds the fair market value of a Warrant Share (as determined in Section 2 below), this Warrant shall be deemed to be automatically exercised using the Net Issuance Method pursuant to Section 2 hereof immediately prior to the time on the Expiration Date at which this Warrant ceases to be exercisable. In addition, the Holder may specify in its Form of Subscription delivered to the Company (along with payment for the shares by cash or wire transfer) that the Holder’s exercise of any portion of this Warrant is contingent upon the closing of a then-pending Fundamental Transaction (as defined below). Upon any exercise of this Warrant, the Holder shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the Warrant Shares so purchased are being acquired solely for the Holder’s own account and not as a nominee for any other party, for investment and not with a view toward distribution or resale and that such Holder is an “accredited investor” as such term is defined in Rule 501(a)(1) of Regulation D promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended. If the Holder cannot make such representations because they would be factually incorrect, it shall be a condition to such Holder’s exercise of this Warrant that the Company receive such other representations as the Company considers reasonably necessary to assure the Company that the issuance of its securities upon exercise of this Warrant shall not violate any United States or state securities laws.

Exercise; Issuance of Certificates; Acknowledgement. To the extent that this This Warrant is vested and exercisable with respect to any Warrant Shares, this Warrant shall be exercisable at the option of the holder Holder, within 20 days of record hereof, at any time or from time to time up to the Expiration Initial Exercise Date for all or any part of such the Warrant Shares (but not for a fraction of a share) for which this Warrant is vested and exercisable at such timemay be purchased hereunder. The Company agrees that the shares of Common Stock purchased under this Warrant (the “Warrant Shares”) shall be and are deemed to be issued to the Holder hereof as the record owner of such shares as of the close of business on the date on which this Warrant shall have been surrendered, properly endorsed, the completed, executed Form of Subscription delivered and payment made for such shares. Certificates for the shares of the Common Stock so purchased, together with any other securities or property to which the Holder hereof is entitled upon such exercise, shall be delivered to the Holder hereof by the Company at the Company’s expense within three business days a reasonable time after the rights represented by this Warrant have been so exercised, and may bear a restrictive legend in substantially the form set forth in Section 3.6 of the Agreement. Each certificate so delivered shall be in such denominations of the Warrant Shares as may be requested by the Holder hereof and shall be registered in the name of such Holder. In case of a purchase of less than all the Warrant Shares, the Company shall execute and deliver to Holder within seven business days a reasonable time an Acknowledgement in the form attached hereto indicating the number of Warrant Shares which remain subject to this Warrant, if any, and the number of Warrant Shares for which this Warrant is vested and exercisable at such time, if any. Notwithstanding anything to the contrary contained herein, unless the Holder otherwise notifies the Company or the Exercise Price exceeds the fair market value of a Warrant Share (as determined in Section 2 below)Company, this Warrant shall be deemed to be automatically exercised using the Net Issuance Method pursuant to Section 2 hereof immediately prior to the time on the Expiration Date at which this Warrant ceases to be exercisable. In addition, the Holder may specify in its Form of Subscription delivered to the Company (along with payment for the shares by cash or wire transfer) that the Holder’s exercise of any portion of this Warrant is contingent upon the closing of a then-pending Fundamental Transaction (as defined below). Upon any exercise of this Warrant, the Holder shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the Warrant Shares so purchased are being acquired solely for the Holder’s own account and not as a nominee for any other party, for investment and not with a view toward distribution or resale and that such Holder is an “accredited investor” as such term is defined in Rule 501(a)(1) of Regulation D promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended. If the Holder cannot make such representations because they would be factually incorrect, it shall be a condition to such Holder’s exercise of this Warrant that the Company receive such other representations as the Company considers reasonably necessary to assure the Company that the issuance of its securities upon exercise of this Warrant shall not violate any United States or state securities laws.

Exercise; Issuance of Certificates; Acknowledgement. To the extent that this This Warrant is vested and exercisable with respect to any Warrant Shares, this Warrant shall be exercisable at the option of the holder of record hereof, at any time time, or from time to time time, up to the Expiration Date for all or any part of such the Warrant Shares (but not for a fraction of a share) for which this Warrant is vested and exercisable at such timethat may be purchased hereunder. The Company agrees that the shares of Common Stock purchased under this Warrant shall be and are deemed to be issued to the Holder hereof as the record owner of such shares as of the close of business on the date on which this Warrant shall have been surrendered, properly endorsed, the completed, executed Form of Subscription delivered and payment made for such shares. Certificates for the shares of the Common Stock so purchased, together with any other securities or property to which the Holder hereof is entitled upon such exercise, shall be delivered to the Holder hereof by the Company at the Company’s 's expense within three business days a reasonable time after the rights represented by this Warrant have been so exercised, and may bear a restrictive legend in substantially the form set forth in Section 3.6 of the Agreement. Each certificate so delivered shall be in such denominations of the Warrant Shares as may be requested by the Holder hereof and shall be registered in the name of such that Holder. In case of a purchase of less than all the Warrant Shares, the Company shall execute and deliver to the Holder within seven business days a reasonable time an Acknowledgement in the form attached hereto indicating the number of Warrant Shares which remain subject to this Warrant, if any, and the number of Warrant Shares for which this Warrant is vested and exercisable at such time, if any. Notwithstanding anything to the contrary contained herein, unless the Holder otherwise notifies the Company or the Exercise Price exceeds the fair market value of a Warrant Share (as determined in Section 2 below), this Warrant shall be deemed to be automatically exercised using the Net Issuance Method pursuant to Section 2 hereof immediately prior to the time on the Expiration Date at which this Warrant ceases to be exercisable. In addition, the Holder may specify in its Form of Subscription delivered to the Company (along with payment for the shares by cash or wire transfer) that the Holder’s exercise of any portion of this Warrant is contingent upon the closing of a then-pending Fundamental Transaction (as defined below). Upon any exercise of this Warrant, the Holder shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the Warrant Shares so purchased are being acquired solely for the Holder’s own account and not as a nominee for any other party, for investment and not with a view toward distribution or resale and that such Holder is an “accredited investor” as such term is defined in Rule 501(a)(1) of Regulation D promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended. If the Holder cannot make such representations because they would be factually incorrect, it shall be a condition to such Holder’s exercise of this Warrant that the Company receive such other representations as the Company considers reasonably necessary to assure the Company that the issuance of its securities upon exercise of this Warrant shall not violate any United States or state securities laws.