Common use of Exercise Limitation Clause in Contracts

Exercise Limitation. In no event shall the Holder be permitted to exercise this Warrant, or part thereof, if, upon such exercise, the number of shares of Common Stock beneficially owned by the Holder (other than shares which may be deemed beneficially owned except for being subject to a limitation on exercise or exercise analogous to the limitation contained in this Section 4), would exceed 4.99% of the number of shares of Common Stock then issued and outstanding, it being the intent of the Company and the Holder that the Holder not be deemed at any time to have the power to vote or dispose of greater than 4.99% of the number of shares of Common Stock issued and outstanding at any time. Nothing contained herein shall be deemed to restrict the right of the Holder to exercise this Warrant at such time as such exercise will not violate the provisions of this Section 4. As used herein, beneficial ownership shall be determined in accordance with Section 13(d) of (i) Securities Exchange Act of 1934, as amended, and the rules thereunder. To the extent that the limitation contained in this Section 4 applies (and without limiting any rights the Company may otherwise have), the Company may rely on the Holder’s determination of whether this Warrant is exercisable pursuant to the terms hereof, the Company shall have no obligation whatsoever to verify or confirm the accuracy of such determination, and the submission of an Exercise Notice by the Holder shall be deemed to be the Holder’s representation that this Warrant is exercisable pursuant to the terms hereof. The Company shall have no liability to any person if the Holder’s determination of whether this Warrant is exercisable pursuant to the terms hereof is incorrect.

Exercise Limitation. In no event shall Notwithstanding anything to the Holder be permitted to exercise this Warrant, or part thereof, if, upon such exercisecontrary contained herein, the number of shares of Common Stock beneficially owned Warrant Shares that may be acquired by the Holder upon exercise of this Warrant (other than shares which may or otherwise in respect hereof) shall be deemed beneficially owned except for being subject to a limitation on exercise or exercise analogous limited to the limitation contained in this Section 4extent necessary to ensure that, following such conversion (or other issuance), would exceed 4.99% of the total number of shares of Common Stock then issued beneficially owned by such Holder and outstanding, it being its affiliates and any other persons whose beneficial ownership of Common Stock would be aggregated with the intent Holder's for purposes of Section 13(d) of the Company Securities and Exchange Act of 1934, as amended (the Holder that the Holder “Exchange Act”), does not be deemed at any time to have the power to vote or dispose of greater than exceed 4.99% of the total number of issued and outstanding shares of Common Stock issued and outstanding at any time(including for such purpose the shares of Common Stock issuable upon such conversion). Nothing contained herein shall be deemed to restrict the right of the Holder to exercise this Warrant at For such time as such exercise will not violate the provisions of this Section 4. As used hereinpurposes, beneficial ownership shall be determined in accordance with Section 13(d) of (i) Securities the Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. To The Holder, upon not less than 61 days’ prior notice to the extent Company, may increase or decrease the beneficial ownership limitations provision of this Section, provided that the beneficial ownership limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section shall continue to apply. Any such increase or decrease will not be effective until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this Section 4 applies (and without limiting any rights the Company may otherwise have), the Company may rely on the Holder’s determination paragraph shall apply to a successor holder of whether this Warrant is exercisable pursuant to the terms hereof, the Company shall have no obligation whatsoever to verify or confirm the accuracy of such determination, and the submission of an Exercise Notice by the Holder shall be deemed to be the Holder’s representation that this Warrant is exercisable pursuant to the terms hereof. The Company shall have no liability to any person if the Holder’s determination of whether this Warrant is exercisable pursuant to the terms hereof is incorrectWarrant.

Exercise Limitation. In no event The Company shall not effect the exercise of this Warrant and the Holder be permitted shall not have the right to exercise this Warrant, or part thereof, if, upon to the extent that after giving effect to such exercise, the Holder (together with the Holder’s affiliates) would beneficially own in excess of 9.99% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such Holder and its affiliates shall include the Holder number of shares of Common Stock issuable upon exercise of this Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (other than shares which may be deemed i) exercise of the remaining, unexercised portion of this Warrant beneficially owned except for being by such Holder and its affiliates and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such Holder and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on exercise conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 413(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”). For purposes of this Warrant, would exceed 4.99% in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Form 10-Q or Form 10-K, as the case may be, filed with the SEC on the date thereof, (y) a more recent public announcement by the Company or (z) any other notice by the Company or its transfer agent setting forth the number of shares of Common Stock then issued outstanding. By written notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that (i) any such increase will not be effective until the sixty-fifth (65st) day after such notice is delivered to the Company, and (ii) any such increase or decrease will apply only to the Holder and not to any other holder of Warrants. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this paragraph to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation and comply with any rules of the Nasdaq Stock Market. Notwithstanding any of the limitations set forth in this paragraph, this Warrant shall be fully exercisable in connection with a Liquidation Event (as defined below); provided further that this sentence shall not be given effect to the extent it could conflict with the rules of The Nasdaq Stock Market or any similar rule of any stock exchange on which the Common Stock is listed at the relevant time. In accordance with such listing standards, this restriction will apply at any time when the Warrant is outstanding, it being regardless of whether the intent Company then has a class of securities listed on The Nasdaq Stock Market. For purposes herein, “Liquidation Event” shall mean the consummation of any of the following transactions: (a) a merger or consolidation in which the Company is not the surviving entity (other than a merger or consolidation with a wholly-owned subsidiary, a reincorporation or continuation of the Company and in a different jurisdiction, or other transaction in which there is no substantial change in the Holder that the Holder not be deemed at any time to have the power to vote or dispose of greater than 4.99% stockholders of the number Company), (b) the sale of all or substantially all of the assets of the Company, or (c) the acquisition of all of the outstanding shares of Common Stock issued and outstanding at any time. Nothing contained herein shall be deemed to restrict the right of the Holder to exercise this Warrant at such time as such exercise will not violate the provisions of this Section 4. As used herein, beneficial ownership shall be determined in accordance with Section 13(d) of (i) Securities Exchange Act of 1934, as amended, and the rules thereunder. To the extent that the limitation contained in this Section 4 applies (and without limiting any rights the Company may otherwise have), the Company may rely on the Holder’s determination by a single stockholder and its affiliates as a result of whether this Warrant is exercisable pursuant to the terms hereof, the Company shall have no obligation whatsoever to verify a tender offer or confirm the accuracy of such determination, and the submission of an Exercise Notice by the Holder shall be deemed to be the Holder’s representation that this Warrant is exercisable pursuant to the terms hereof. The Company shall have no liability to any person if the Holder’s determination of whether this Warrant is exercisable pursuant to the terms hereof is incorrectsimilar transaction.

Exercise Limitation. (a) In no event shall the Holder be permitted to exercise this Warrant, or part thereof, if, upon such exercise, the number of shares of Common Stock beneficially owned by the Holder (other than shares which may be deemed beneficially owned except for being subject to a limitation on exercise or exercise analogous to the limitation contained in this Section 4), would exceed 4.99% of the number of shares of Common Stock then issued and outstanding, it being the intent of the Company and the Holder that the Holder not be deemed at any time to have the power to vote or dispose of greater than 4.99% of the number of shares of Common Stock issued and outstanding at any time. Nothing contained herein shall be deemed to restrict the right of the Holder to exercise this Warrant at such time as such exercise will not violate the provisions of this Section 4. As used herein, beneficial ownership shall be determined in accordance with Section 13(d) of (i) Securities the Exchange Act of 1934, as amended, and the rules thereunderAct. To the extent that the limitation contained in this Section 4 applies (and without limiting any rights the Company may otherwise have), the Company may rely on the Holder’s determination of whether this Warrant is exercisable pursuant to the terms hereof, the Company shall have no obligation whatsoever to verify or confirm the accuracy of such determination, and the submission of an Exercise Notice by the Holder shall be deemed to be the Holder’s representation that this Warrant is exercisable pursuant to the terms hereof, the Company may rely on the Holder’s representation that this Warrant is exercisable pursuant to the terms hereof, and the Company shall have no obligation whatsoever to verify or confirm the accuracy of such representation. The Company shall have no liability to any person if the Holder’s determination of whether this Warrant is exercisable pursuant to the terms hereof is incorrect.

Exercise Limitation. In no event Notwithstanding any provisions herein to the contrary, the Warrantholder shall the Holder not be permitted entitled to exercise this Warrant, or part thereof, ifthe Warrants for a number of shares of Common Stock in excess of that number of shares of Common Stock which, upon giving effect to such exercise, would cause the aggregate number of shares of Common Stock beneficially owned by such Warrantholder to exceed 9.99% of the outstanding shares of Common Stock following such exercise. For purposes of the foregoing proviso, the aggregate number of shares of Common Stock beneficially owned by the Holder Warrantholder shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which determination of such proviso is being made, but shall exclude the shares of Common Stock which would be issuable upon (other than shares which may be deemed i) exercise of the remaining, unexercised Warrants beneficially owned except for being by the Warrantholder and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by the Warrantholder subject to a limitation on exercise conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this Section 41(c)(vi), would exceed 4.99% beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended. The Warrantholder may waive the foregoing limitation by written notice to the Company upon not less than 61 days prior written notice (such waiver taking effect only upon the expiration of such 61 day notice period and applying only to the Warrantholder and not to any other holder of Warrants). For purposes of this Section 1(c)(vi), in determining the number of outstanding shares of Common Stock, the Warrantholder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-Q or Form 10-K, as the case may be, filed with the Securities and Exchange Commission on the date thereof, (2) a more recent public announcement by the Company as to the number of shares of Common Stock outstanding, or (3) any other notice by the Company or its transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written request of the Warrantholder, the Company shall within three trading days confirm in writing or by electronic mail to the Warrantholder the number of shares of Common Stock then issued and outstanding. In any case, it being the intent of the Company and the Holder that the Holder not be deemed at any time to have the power to vote or dispose of greater than 4.99% of the number of outstanding shares of Common Stock issued and outstanding at any time. Nothing contained herein shall be deemed to restrict the right of the Holder to exercise this Warrant at such time as such exercise will not violate the provisions of this Section 4. As used herein, beneficial ownership shall be determined in accordance with Section 13(d) of (i) Securities Exchange Act of 1934, as amended, and the rules thereunder. To the extent that the limitation contained in this Section 4 applies (and without limiting any rights the Company may otherwise have), the Company may rely on the Holder’s determination of whether this Warrant is exercisable pursuant after giving effect to the terms hereofconversion or exercise of securities of the Company, including the Company shall have no obligation whatsoever to verify or confirm the accuracy of such determinationWarrants, and the submission of an Exercise Notice by the Holder shall be deemed to be Warrantholder since the Holder’s representation that this Warrant is exercisable pursuant to the terms hereof. The Company shall have no liability to any person if the Holder’s determination date as of whether this Warrant is exercisable pursuant to the terms hereof is incorrectwhich such number of outstanding shares of Common Stock was reported.

Exercise Limitation. In no event shall Notwithstanding anything to the Holder be permitted to exercise this Warrant, or part thereof, if, upon such exercisecontrary contained herein, the number of shares of Common Stock beneficially owned Warrant Shares that may be acquired by the Holder upon conversion of this Note (other than shares which may or otherwise in respect hereof) shall be deemed beneficially owned except for being subject to a limitation on exercise or exercise analogous limited to the limitation contained in this Section 4extent necessary to ensure that, following such conversion (or other issuance), would exceed 4.99% of the total number of shares of Common Stock then issued beneficially owned by such Holder and outstanding, it being its affiliates and any other persons whose beneficial ownership of Common Stock would be aggregated with the intent Holder's for purposes of Section 13(d) of the Company Securities and Exchange Act of 1934, as amended (the Holder that the Holder “Exchange Act”), does not be deemed at any time to have the power to vote or dispose of greater than exceed 4.99% of the total number of issued and outstanding shares of Common Stock issued and outstanding at any time(including for such purpose the shares of Common Stock issuable upon such conversion). Nothing contained herein shall be deemed to restrict the right of the Holder to exercise this Warrant at For such time as such exercise will not violate the provisions of this Section 4. As used hereinpurposes, beneficial ownership shall be determined in accordance with Section 13(d) of (i) Securities the Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. To The Holder, upon not less than 61 days’ prior notice to the extent Company, may increase or decrease the beneficial ownership limitations provision of this Section, provided that the beneficial ownership limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section shall continue to apply. Any such increase or decrease will not be effective until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this Section 4 applies (and without limiting any rights the Company may otherwise have), the Company may rely on the Holder’s determination paragraph shall apply to a successor holder of whether this Warrant is exercisable pursuant to the terms hereof, the Company shall have no obligation whatsoever to verify or confirm the accuracy of such determination, and the submission of an Exercise Notice by the Holder shall be deemed to be the Holder’s representation that this Warrant is exercisable pursuant to the terms hereof. The Company shall have no liability to any person if the Holder’s determination of whether this Warrant is exercisable pursuant to the terms hereof is incorrect.d)

Exercise Limitation. In no event shall Notwithstanding any provisions herein to the contrary, the Holder shall not be permitted entitled to exercise this Warrant, or part thereof, ifWarrant for a number of Warrant Shares in excess of that number of Warrant Shares which, upon giving effect to such exercise, would cause the aggregate number of shares of Common Stock beneficially owned by the Holder (other than to exceed 9.99% of the outstanding shares which may be deemed of the Common Stock following such exercise. For purposes of the foregoing proviso, the aggregate number of shares of Common Stock beneficially owned except for by the Holder shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which determination of such proviso is being made, but shall exclude the shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrants beneficially owned by the Holder and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by the Holder subject to a limitation on exercise conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this Section 42.5, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act. Notwithstanding the foregoing, the Holder may waive the foregoing limitation, or increase or decrease the foregoing limitation to any other percentage, by written notice to the Company; provided that a waiver by the Holder of the foregoing limitation or a request to increase such limitation requires not less than 61 days prior written notice (with such waiver of the foregoing limitation or request to increase such limitation taking effect only upon the expiration of such 61 day notice period and applying only to the Holder and not to any other holder of Warrants sold pursuant to the Purchase Agreement). For purposes of this Section 2.5, would exceed 4.99% in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent quarterly report on Form 10-Q or annual report on Form 10-K, as the case may be, filed with the SEC on the date thereof, (y) a more recent public announcement by the Company or (z) any other notice by the Company or its transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written request of the Holder, the Company shall within three (3) Business Days confirm in writing or by electronic mail to the Holder the number of shares of Common Stock then issued and outstanding. In any case, it being the intent of the Company and the Holder that the Holder not be deemed at any time to have the power to vote or dispose of greater than 4.99% of the number of outstanding shares of Common Stock issued and outstanding at any time. Nothing contained herein shall be deemed to restrict the right of the Holder to exercise this Warrant at such time as such exercise will not violate the provisions of this Section 4. As used herein, beneficial ownership shall be determined in accordance with Section 13(d) of (i) Securities Exchange Act of 1934, as amended, and the rules thereunder. To the extent that the limitation contained in this Section 4 applies (and without limiting any rights the Company may otherwise have), the Company may rely on the Holder’s determination of whether this Warrant is exercisable pursuant after giving effect to the terms hereofconversion or exercise of securities of the Company, the Company shall have no obligation whatsoever to verify or confirm the accuracy of such determinationincluding this Warrant, and the submission of an Exercise Notice by the Holder shall be deemed to be since the Holder’s representation that this Warrant is exercisable pursuant to the terms hereof. The Company shall have no liability to any person if the Holder’s determination date as of whether this Warrant is exercisable pursuant to the terms hereof is incorrectwhich such number of outstanding shares of Common Stock was reported.

Exercise Limitation. In no event shall the Holder be permitted to exercise this Warrant, or part thereof, if, upon such exercise, the number of shares of Common Stock beneficially owned by the Holder (other than shares which may be deemed beneficially owned except for being subject to a limitation on exercise or exercise analogous to the limitation contained in this Section 4), would exceed 4.99% of the number of shares of Common Stock then issued and outstanding, it being the intent of the Company and the Holder that the Holder not be deemed at any time to have the power to vote or dispose of greater than 4.99% of the number of shares of Common Stock issued and outstanding at any time. Nothing contained herein shall be deemed to restrict the right of the Holder to exercise this Warrant at such time as such exercise will not violate the provisions of this Section 4. As used herein, beneficial ownership shall be determined in accordance with Section 13(d) of (i) Securities Exchange Act of 1934, as amended, and the rules thereunder. To the extent that the limitation contained in this Section 4 applies (and without limiting any rights the Company may otherwise have), the Company may rely on the Holder’s determination of whether this Warrant is exercisable pursuant to the terms hereof, the Company shall have no obligation whatsoever to verify or confirm the accuracy of such determination, and the submission of an Exercise Notice by the Holder shall be deemed to be the Holder’s representation that this Warrant is exercisable pursuant to the terms hereof. The Company shall have no liability to any person if the Holder’s determination of whether this Warrant is exercisable pursuant to the terms hereof is incorrect. The holders of Common Stock are to be deemed third-party beneficiaries of the limitations hereby and, accordingly, this Section 4 may not be amended without the consent of the holders of a majority of the shares of Common Stock then outstanding; provided, however, that the Holder shall have the right, upon sixty (60) days’ prior written notice to the Company, to waive the provisions of this Section 4 in the event that either a Fundamental Change or Liquidation Event (each, as defined in the Notes) is announced or occurs, without obtaining such consent.

Exercise Limitation. In no event Notwithstanding any provisions herein to the contrary, from and after the time that the Company has ceased to qualify as a “foreign private issuer” (as that term is defined in the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”)), the Warrantholder shall the Holder not be permitted entitled to exercise this Warrant, or part thereof, ifWarrants for a number of Shares in excess of that number of Shares which, upon giving effect to such exercise, would cause the aggregate number of shares of Common Stock Shares deemed beneficially owned by the Holder (other than shares which may be deemed Warrantholder to exceed 9.99% of the outstanding Shares following such exercise. For purposes of the foregoing proviso, the aggregate number of Shares beneficially owned except for by the Warrantholder shall include the number of Shares issuable upon exercise of this Warrant with respect to which determination of such proviso is being made, but shall exclude the Shares which would be issuable upon (i) exercise of the remaining, unexercised Warrants beneficially owned by the Warrantholder and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by the Warrantholder subject to a limitation on exercise conversion or exercise analogous to the limitation contained herein. Except as set forth in this Section 4)the preceding sentence, would exceed 4.99% of the number of shares of Common Stock then issued and outstanding, it being the intent of the Company and the Holder that the Holder not be deemed at any time to have the power to vote or dispose of greater than 4.99% of the number of shares of Common Stock issued and outstanding at any time. Nothing contained herein shall be deemed to restrict the right of the Holder to exercise this Warrant at such time as such exercise will not violate the provisions for purposes of this Section 4. As used herein2.16, beneficial ownership shall be determined calculated in accordance with Section 13(d) of the Exchange Act. Notwithstanding the foregoing, the Warrantholder may waive the foregoing limitation, or increase or decrease the foregoing limitation to any other percentage, by written notice to the Company; provided that a waiver by the Warrantholder of the foregoing limitation or a request to increase such limitation requires not less than 61 days prior written notice (i) Securities Exchange Act with such waiver of 1934, as amended, the foregoing limitation or request to increase such limitation taking effect only upon the expiration of such 61 day notice period and applying only to the rules thereunderWarrantholder and not to any other holder of Warrants). To the extent that the limitation contained in For purposes of this Section 4 applies (and without limiting any rights 2.16, in determining the Company may otherwise have)number of outstanding Shares, the Company Warrantholder may rely on the Holdernumber of outstanding Shares as reflected in (x) the Company’s determination most recent periodic report filed with the SEC on the date thereof, (y) a more recent public announcement by the Company or (z) any other notice by the Company or its transfer agent setting forth the number of whether this Warrant is exercisable pursuant to Shares outstanding. Upon the terms hereofwritten request of the Warrantholder, the Company shall have no obligation whatsoever use commercially reasonable efforts to verify within confirm in writing or confirm by electronic mail to the accuracy Warrantholder the number of Shares then outstanding within three (3) Business Days after written request by such determinationWarrantholder. In any case, and the submission number of an Exercise Notice outstanding Shares shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder shall be deemed to be Warrantholder since the Holder’s representation that this Warrant is exercisable pursuant to the terms hereof. The Company shall have no liability to any person if the Holder’s determination date as of whether this Warrant is exercisable pursuant to the terms hereof is incorrectwhich such number of outstanding Shares was reported.

Exercise Limitation. In no event Notwithstanding any provisions herein to the contrary, from and after the earlier of a Listing or a U.S. IPO (each, as defined in the Securities Purchase Agreement), so long as the Company does not qualify as a “foreign private issuer” (as that term is defined in the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”)), the Warrantholder shall the Holder not be permitted entitled to exercise this Warrant, or part thereof, ifWarrant for a number of Shares in excess of that number of Shares which, upon giving effect to such exercise, would cause the aggregate number of shares of Common Stock Shares deemed beneficially owned by the Holder (other than shares which may be deemed Warrantholder to exceed 9.99% of the outstanding Shares following such exercise. For purposes of the foregoing proviso, the aggregate number of Shares beneficially owned except for by the Warrantholder shall include the number of Shares issuable upon exercise of this Warrant with respect to which determination of such proviso is being made, but shall exclude the Shares which would be issuable upon (i) exercise of the remaining, unexercised Warrants beneficially owned by the Warrantholder and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by the Warrantholder subject to a limitation on exercise conversion or exercise analogous to the limitation contained herein. Except as set forth in this Section 4)the preceding sentence, would exceed 4.99% of the number of shares of Common Stock then issued and outstanding, it being the intent of the Company and the Holder that the Holder not be deemed at any time to have the power to vote or dispose of greater than 4.99% of the number of shares of Common Stock issued and outstanding at any time. Nothing contained herein shall be deemed to restrict the right of the Holder to exercise this Warrant at such time as such exercise will not violate the provisions for purposes of this Section 4. As used herein4.6, beneficial ownership shall be determined calculated in accordance with Section 13(d) of the Exchange Act. Notwithstanding the foregoing, the Warrantholder may waive the foregoing limitation, or increase or decrease the foregoing limitation to any other percentage, by written notice to the Company; provided that a waiver by the Warrantholder of the foregoing limitation or a request to increase such limitation requires not less than 61 days prior written notice (i) Securities Exchange Act with such waiver of 1934, as amended, the foregoing limitation or request to increase such limitation taking effect only upon the expiration of such 61 day notice period and applying only to the rules thereunderWarrantholder and not to any other holder of Warrants). To the extent that the limitation contained in For purposes of this Section 4 applies (and without limiting any rights 4.6, in determining the Company may otherwise have)number of outstanding Shares, the Company Warrantholder may rely on the Holdernumber of outstanding Shares as reflected in (x) the Company’s determination disclosure of whether this Warrant is exercisable its total number of voting rights and capital pursuant to Disclosure Guidance and Transparency Rule 5.6, (y) a more recent public announcement by the terms hereofCompany or (z) any other notice by the Company or its registrar setting forth the number of Shares outstanding. Upon the written request of the Warrantholder, the Company shall have no obligation whatsoever use commercially reasonable efforts to verify confirm in writing or confirm by electronic mail to the accuracy Warrantholder the number of Shares then outstanding within three (3) Business Days after written request by such determinationWarrantholder. In any case, and the submission number of an Exercise Notice outstanding Shares shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder shall be deemed to be Warrantholder since the Holder’s representation that this Warrant is exercisable pursuant to the terms hereof. The Company shall have no liability to any person if the Holder’s determination date as of whether this Warrant is exercisable pursuant to the terms hereof is incorrectwhich such number of outstanding Shares was reported.

Exercise Limitation. In no event shall Notwithstanding anything to the Holder be permitted to exercise this Warrant, or part thereof, if, upon such exercisecontrary contained herein, the number of shares of Common Stock beneficially owned Warrant Shares that may be acquired by the Holder upon conversion of this Note (other than shares which may or otherwise in respect hereof) shall be deemed beneficially owned except for being subject to a limitation on exercise or exercise analogous limited to the limitation contained in this Section 4extent necessary to ensure that, following such conversion (or other issuance), would exceed 4.99% of the total number of shares of Common Stock then issued beneficially owned by such Holder and outstanding, it being its affiliates and any other persons whose beneficial ownership of Common Stock would be aggregated with the intent Holder's for purposes of Section 13(d) of the Company Securities and Exchange Act of 1934, as amended (the Holder that the Holder “Exchange Act”), does not be deemed at any time to have the power to vote or dispose of greater than exceed 4.99% of the total number of issued and outstanding shares of Common Stock issued and outstanding at any time. Nothing contained herein shall be deemed to restrict (including for such purpose the right shares of the Holder to exercise this Warrant at Common Stock issuable upon such time as conversion).For such exercise will not violate the provisions of this Section 4. As used hereinpurposes, beneficial ownership shall be determined in accordance with Section 13(d) of (i) Securities the Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. To .The Holder, upon not less than 61 days’ prior notice to the extent Company, may increase or decrease the beneficial ownership limitations provision of this Section, provided that the beneficial ownership limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section shall continue to apply.Any such increase or decrease will not be effective until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this Section 4 applies (and without limiting any rights the Company may otherwise have), the Company may rely on the Holder’s determination paragraph shall apply to a successor holder of whether this Warrant is exercisable pursuant to the terms hereof, the Company shall have no obligation whatsoever to verify or confirm the accuracy of such determination, and the submission of an Exercise Notice by the Holder shall be deemed to be the Holder’s representation that this Warrant is exercisable pursuant to the terms hereof. The Company shall have no liability to any person if the Holder’s determination of whether this Warrant is exercisable pursuant to the terms hereof is incorrect.d)

Exercise Limitation. In no event The Corporation shall the Holder be permitted to not effect any exercise of this Warrant, and the Holder shall not have the right to exercise any portion of this Warrant, pursuant to Section 2(a) or part thereofotherwise, ifto the extent that after giving effect to such issuance after exercise as set forth on the applicable Notice of Exercise, upon such exercisethe Holder (together with the Holder’s affiliates, and any other person or entity acting as a group together with the Holder or any of the Holder’s affiliates), as set forth on the applicable Notice of Exercise, would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the preceding sentence, the number of shares of Common Stock beneficially owned by the Holder (other than shares which may be deemed beneficially owned except for being subject to a limitation on exercise or exercise analogous to the limitation contained in this Section 4), would exceed 4.99% of and its affiliates shall include the number of shares of Common Stock then issued and outstandingissuable upon exercise of this Warrant with respect to which such determination is being made, it being the intent of the Company and the Holder that the Holder not be deemed at any time to have the power to vote or dispose of greater than 4.99% of but shall exclude the number of shares of Common Stock issued which would be issuable upon (1) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of its affiliates and outstanding at (2) exercise, conversion, or exchange of the unexercised, unconverted, or non-exchanged portion of any time. Nothing other securities of the Corporation (including, without limitation, any other warrants) subject to a limitation on conversion, exercise, or exchange analogous to the limitation contained herein shall be deemed to restrict the right of beneficially owned by the Holder to exercise this Warrant at such time or any of its affiliates. Except as such exercise will not violate set forth in the provisions preceding sentence, for purposes of this Section 4. As used herein2(b), beneficial ownership shall be determined calculated in accordance with Section 13(d) of (i) the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations promulgated thereunder, and the determination of whether a person or entity is an “affiliate” of the Holder shall also be made in accordance with the Exchange Act, the Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations under such acts. To the extent that the limitation contained in this Section 4 applies (and without limiting any rights the Company may otherwise have)2(b) applies, the Company may rely on determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any affiliates) and of which a portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether this Warrant is exercisable pursuant (in relation to other securities owned by the terms hereofHolder together with any affiliates) and of which portion of this Warrant is exercisable, in each case subject to such aggregate percentage limitation, and the Company Corporation shall have no obligation whatsoever to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the submission rules and regulations promulgated thereunder. For purposes of an Exercise Notice this Section 2(b), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Corporation’s most recent Form 10-Q report or Form 10-K report, as the case may be, (y) a more recent public announcement by the Corporation, or (z) any other notice by the Corporation or the Corporation’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of the Holder, the Corporation shall within one trading day confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Corporation, including this Warrant, by the Holder or its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be deemed 4.99% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(b) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant. Notwithstanding the provisions of the immediately preceding paragraph, the Holder’s representation that , upon not less than sixty-one days’ prior written notice to the Corporation, may elect (1) to change the Beneficial Ownership Limitation to 9.9% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant is exercisable pursuant or (2) to eliminate the terms hereof. The Company shall have no liability to any person if the Holder’s determination of whether this Warrant is exercisable pursuant to the terms hereof is incorrectBeneficial Ownership Limitation in its entirety.

Exercise Limitation. In no event The Holder shall the Holder not be permitted entitled to take any delivery of shares of Common Stock upon exercise of this Warrant, if held by Baupost Group Securities, L.L.C. (together with its affiliates, “Baupost”), to the extent (but only to the extent) that, after such receipt of any shares of Common Stock upon exercise, the Holder’s Section 13 Percentage would exceed 37.5%. The Holder shall not be entitled to take any delivery of shares of Common Stock upon exercise of this Warrant, if held by UBS X’Xxxxxx (as defined below), to the extent (but only to the extent) that, after such receipt of any shares of Common Stock upon exercise, the Holder’s Section 13 Percentage would exceed 9.99%. “UBS X’Xxxxxx” means each fund, investor, entity or part account that is managed, sponsored or advised by UBS X’Xxxxxx LLC. The Holder shall not be entitled to take any delivery of shares of Common Stock upon exercise of this Warrant, if held by other than Baupost or UBS X’Xxxxxx, to the extent (but only to the extent) that, after such receipt of any shares of Common Stock upon exercise, the Holder’s Section 13 Percentage would exceed 19.99%. In addition, a Holder at its option may elect a limit to the Section 13 Percentage for such Holder (but not as to any other Holder) that is less than or equal to the percentages set forth in the first three sentences of this Section 2.5 then applicable to such Holder upon written notice delivered to the Company at least 61 days prior to the date of effectiveness of such beneficial ownership limit, specifying the Section 13 Percentage limit that shall apply to such Holder (such beneficial ownership limit, an “Individual Holder Beneficial Ownership Limit”). Any purported delivery hereunder shall be void and have no effect to the extent (but only to the extent) that, after such delivery, the Section 13 Percentage of such Holder would exceed 9.99%, 19.99% or 37.5%, as applicable, or any then-applicable Individual Holder Beneficial Ownership Limit. If any delivery owed to the Holder (including, for this purpose, any holder of a beneficial interest therein) hereunder is not made, in whole or in part, as a result of this provision, the Company’s obligation to make such delivery shall not be extinguished and the Company shall make such delivery as promptly as practicable after, but in no event later than one Business Day after, the Holder gives notice to the Company that, after such delivery, its Section 13 Percentage would not exceed 19.99%, or 9.99% if the Holder is UBS X’Xxxxxx, or 37.5% if the Holder is Baupost, and any Individual Holder Beneficial Ownership Limit applicable to such Holder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, Baupost, UBS X’Xxxxxx or the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Form 10-Q or Form 10-K, as the case may be, filed with the SEC on the date thereof, if, upon such exercise, (y) a more recent public announcement by the Company; or (z) any other notice by the Company or its transfer agent setting forth the number of shares of Common Stock beneficially owned outstanding. Upon the written request of Baupost, UBS X’Xxxxxx or other Holder, the Company shall within three Business Days confirm in writing or by the electronic mail to Baupost, UBS X’Xxxxxx or other Holder (other than shares which may be deemed beneficially owned except for being subject to a limitation on exercise or exercise analogous to the limitation contained in this Section 4), would exceed 4.99% of the number of shares of Common Stock then issued outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by Baupost, UBS X’Xxxxxx or other Holder since the date as of which such number of outstanding shares of Common Stock was reported. The provisions of this paragraph shall be construed and outstandingimplemented in a manner otherwise than in strict conformity with the terms of this paragraph to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. Notwithstanding any of the limitations set forth in this paragraph, it being this Warrant shall be fully exercisable in connection with a Fundamental Change (as defined below). If a transaction or event that constitutes a Fundamental Change occurs prior to the intent close of business on the Stockholder Approval Deadline, or if the Company is a party to a consolidation, merger, binding share exchange, or transfer or lease of all or substantially all of its assets, pursuant to which the Common Stock would be converted into cash, securities or other assets, the Holder may exchange all or a portion of this Warrant for the Fundamental Change Amount (as defined below) by surrender of this Warrant at the principal office of the Company and together with the Holder that the Holder not be deemed properly endorsed Notice of Exercise at any time from or after the effective date of the transaction until 35 Trading Days (as defined below) after the effective date of such transaction. Upon any such exchange of any portion of this Warrant, the Company shall pay to have the power Holders, in respect of such portion, on the third Business Day after such surrender, cash equal to vote or dispose the product of greater than 4.99% of (i) the number of shares of Common Stock issued and outstanding at any time. Nothing contained herein shall be deemed to restrict the right purchaseable upon exchange of all of the Holder to exercise this Warrant at such time as such exercise will not violate or, if only a portion of the provisions Warrant is being exchanged, the portion of this Section 4. As used herein, beneficial ownership shall be determined in accordance with Section 13(dthe Warrant being exchanged multiplied by (ii) the sum of (ix) Securities Exchange Act of 1934, as amended, and the rules thereunder. To the extent that the limitation contained in this Section 4 applies (and without limiting any rights the Company may otherwise have), the Company may rely on the Holder’s determination of whether this Warrant is exercisable pursuant to the terms hereof, the Company shall have no obligation whatsoever to verify or confirm the accuracy of such determination, and the submission of an Exercise Notice cash per share received by the Holder shall be deemed to be holders of Common Stock in such Fundamental Change minus (y) the Holder’s representation that this Warrant is exercisable pursuant to Exercise Price (the terms hereof“Fundamental Change Amount”). The Company shall have no liability to any person if the Holder’s determination of whether this Warrant is exercisable pursuant to the terms hereof is incorrect.For purposes herein:

Exercise Limitation. In no event shall the Holder be permitted to exercise this Warrant, or part thereof, if, upon such exercise, the number of shares of Common Stock beneficially owned by the Holder (other than shares which may be deemed beneficially owned except for being subject to a limitation on exercise or exercise analogous to the limitation contained in this Section 4), would exceed 4.99% of the number of shares of Common Stock then issued and outstanding, it being the intent of the Company and the Holder that the Holder not be deemed at any time to have the power to vote or dispose of greater than 4.99% of the number of shares of Common Stock issued and outstanding at any time. Nothing contained herein shall be deemed to restrict the right of the Holder to exercise this Warrant at such time as such exercise will not violate the provisions of this Section 4. As used herein, beneficial ownership shall be determined in accordance with Section 13(d) of (i) Securities Exchange Act of 1934, as amended, and the rules thereunder. To the extent that the limitation contained in this Section 4 applies (and without limiting any rights the Company may otherwise have), the Company may rely on the Holder’s determination of whether this Warrant is exercisable pursuant to the terms hereof, the Company shall have no obligation whatsoever to verify or confirm the accuracy of such determination, and the submission of an Exercise Notice by the Holder shall be deemed to be the Holder’s representation that this Warrant is exercisable pursuant to the terms hereof. The Company shall have no liability to any person if the Holder’s determination of whether this Warrant is exercisable pursuant to the terms hereof is incorrect. The holders of Common Stock are to be deemed third-party beneficiaries of the limitation imposed hereby and, accordingly, this Section 4 may not be amended without the consent of the holders of a majority of the shares of Common Stock then outstanding; provided, however, that the Holder shall have the right, upon sixty (60) days’ prior written notice to the Company, to waive the provisions of this Section 4 in the event that either a Fundamental Change or Liquidation Event (each, as defined in the Notes) is announced or occurs, without obtaining such consent.

Exercise Limitation. In no event shall the Holder be permitted to exercise this Warrant, or part thereof, if, upon such exercise, the number of shares of Common Stock beneficially owned by the Holder (other than shares which may be deemed beneficially owned except for being subject to a limitation on exercise or exercise analogous to the limitation contained in this Section 4), would exceed 4.994.9% of the number of shares of Common Stock then issued and outstanding, it being the intent of the Company and the Holder that the Holder not be deemed at any time to have the power to vote or dispose of greater than 4.994.9% of the number of shares of Common Stock issued and outstanding at any time. Nothing contained herein shall be deemed to restrict the right of the Holder to exercise this Warrant at such a time as such exercise will not violate the provisions of this Section 4. As used herein, beneficial ownership shall be determined in accordance with Section 13(d) of (i) Securities the Exchange Act of 1934, as amended, and the rules thereunderAct. To the extent that the limitation contained in this Section 4 applies (and without limiting any rights the Company may otherwise have), the Company may rely on the Holder’s determination of whether this Warrant is exercisable pursuant to the terms hereof, the Company shall have no obligation whatsoever to verify or confirm the accuracy of such determination, and the submission of an Exercise Notice by the Holder shall be deemed to be the Holder’s representation that this Warrant is exercisable pursuant to the terms hereof, the Company may rely on the Holder’s representation that this Warrant is exercisable pursuant to the terms hereof, and the Company shall have no obligation whatsoever to verify or confirm the accuracy of such representation. The Company shall have no liability to any person if the Holder’s determination of whether this Warrant is exercisable pursuant to the terms hereof is incorrect. The holders of Common Stock are to be deemed third-party beneficiaries of the limitation imposed hereby and, accordingly, this Section 4 may not be amended without the consent of the holders of a majority of the shares of Common Stock then outstanding; provided, however, that the Holder shall have the right, upon sixty (60) days’ prior written notice to the Company, to waive the provisions of this Section 4, without obtaining such consent.

Exercise Limitation. In no event shall the Holder be permitted to exercise this Warrant, or part thereof, if, upon such exercise, the number of shares of Common Stock beneficially owned by the Holder (other than shares which may be deemed beneficially owned except for being subject to a limitation on exercise or exercise analogous to the limitation contained in this Section 4), would exceed 4.99% of the number of shares of Common Stock then issued and outstanding, it being the intent of the Company and the Holder that the Holder not be deemed at any time to have the power to vote or dispose of greater than 4.99% of the number of shares of Common Stock issued and outstanding at any time. Nothing contained herein shall be deemed to restrict the right of the Holder to exercise this Warrant at such time as such exercise will not violate the provisions of this Section 4. As used herein, beneficial ownership shall be determined in accordance with Section 13(d) of (i) Securities the Exchange Act of 1934, as amended, and the rules thereunderAct. To the extent that the limitation contained in this Section 4 applies (and without limiting any rights the Company may otherwise have), the Company may rely on the Holder’s determination of whether this Warrant is exercisable pursuant to the terms hereof, the Company shall have no obligation whatsoever to verify or confirm the accuracy of such determination, and the submission of an Exercise Notice by the Holder shall be deemed to be the Holder’s representation that this Warrant is exercisable pursuant to the terms hereof, the Company may rely on the Holder’s representation that this Warrant is exercisable pursuant to the terms hereof, and the Company shall have no obligation whatsoever to verify or confirm the accuracy of such representation. The Company shall have no liability to any person if the Holder’s determination of whether this Warrant is exercisable pursuant to the terms hereof is incorrect. The holders of Common Stock are to be deemed third-party beneficiaries of the limitation imposed hereby and, accordingly, this Section 4 may not be amended without the consent of the holders of a majority of the shares of Common Stock then outstanding; provided, however, that the Holder shall have the right, upon sixty (60) days’ prior written notice to the Company, to waive the provisions of this Section 4, without obtaining such consent.

Exercise Limitation. In no event shall the a Holder be permitted to exercise this Warrant, or part thereofhereof, if, upon such exercise, the number of shares of Common Stock beneficially owned by the Holder (other than shares which may would otherwise be deemed beneficially owned except for being subject to a limitation on exercise conversion or exercise analogous to the limitation contained in this Section 45), would exceed 4.99% of the number of shares of Common Stock then issued and outstanding, it being ; provided that the intent foregoing limitation shall not apply with respect to the original Holder hereof who received this Warrant upon the closing of the Company and the Holder that the Holder not be deemed at any time to have the power to vote or dispose of greater than 4.99% of the number of shares of Common Stock issued and outstanding at any time. Nothing contained herein shall be deemed to restrict the right of the Holder to exercise this Warrant at such time as such exercise will not violate the provisions of this Section 4Merger. As used herein, beneficial ownership shall be determined in accordance with Section 13(d) of (i) the Securities Exchange Act of 1934, as amended, and the rules thereunder. To the extent that the limitation contained in this Section 4 applies (and without limiting any rights the Company may otherwise have)5 applies, the Company may rely on the Holder’s determination of whether this Warrant is exercisable pursuant to the terms hereof, the Company shall have no obligation whatsoever to verify or confirm the accuracy of such determination, and the submission of an Exercise Notice by the Holder shall be deemed to be the Holder’s representation that this Warrant is exercisable pursuant to the terms hereofhereof and the Company shall be entitled to rely on such representation without making any further inquiry as to whether this Section 5 applies. Nothing contained herein shall be deemed to restrict the right of a Holder to exercise this Warrant, or part thereof, at such time as such exercise will not violate the provisions of this Section 5. The limitations contained in this Section 5 shall cease to apply (x) upon sixty (60) days’ prior written notice from the Holder to the Company, or (y) immediately upon written notice from the Holder to the Company shall have no liability at any time after the public announcement or other disclosure of the (i) sale, conveyance or disposition of all or substantially all of the assets of the Company; (ii) effectuation of a transaction or series of transactions in which more than 50% of the voting power of the Company is disposed of (other than as a direct result of normal, uncoordinated trading activities in the Common Stock generally); (iii) the consolidation, merger or other business combination of the Company with or into any other entity, immediately following which the prior stockholders of the Company fail to own, directly or indirectly, at least 50% of the voting equity of the surviving entity; or (d) a transaction or series of transactions in which any person if or entity Person or “group” (as such term is used in Sections 13(d) and 14(d) of the Holder’s determination Exchange Act) acquires more than 50% of whether the voting equity of the Company (any of the foregoing transactions in this Warrant is exercisable pursuant to the terms hereof is incorrectSection 5(y) (i) - (iv), a “Change of Control”).

Exercise Limitation. In no event shall Notwithstanding anything to the Holder be permitted to exercise this Warrant, or part thereof, if, upon such exercisecontrary contained herein, the number of shares of Common Stock beneficially owned that may be acquired by the Holder upon any exercise of this Warrant (other than shares which may or otherwise in respect hereof) shall be deemed beneficially owned except for being subject to a limitation on exercise or exercise analogous limited to the limitation contained in this Section 4extent necessary to ensure that, following such exercise (or other issuance), would exceed 4.99% of the total number of shares of Common Stock then beneficially owned by such Holder and its affiliates and any other persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), does not exceed 4.999% (the “Maximum Percentage”) of the total number of issued and outstanding, it being the intent of the Company and the Holder that the Holder not be deemed at any time to have the power to vote or dispose of greater than 4.99% of the number of outstanding shares of Common Stock issued and outstanding at any time(including for such purpose the shares of Common Stock issuable upon such exercise). Nothing contained herein shall be deemed to restrict the right of the Holder to exercise this Warrant at For such time as such exercise will not violate the provisions of this Section 4. As used hereinpurposes, “beneficial ownership ownership” shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. The Company’s obligation to issue shares of Common Stock in excess of the limitation referred to in this Section 12 shall be suspended (and shall not terminate or expire notwithstanding any contrary provisions hereof) until such time, if any, as such shares of Common Stock may be issued in compliance with such limitation, but in no event later than the Expiration Date. By written notice to the Company, the Holder may waive the provisions of this Section 12 or increase or decrease the Maximum Percentage to any other percentage specified in such notice, but (i) Securities Exchange Act of 1934, as amendedany such waiver or increase will not be effective until the 61st day after such notice is delivered to the Company, and the rules thereunder. To the extent that the limitation contained in this Section 4 applies (and without limiting ii) any rights the Company may otherwise have), the Company may rely on the Holder’s determination of whether this Warrant is exercisable pursuant such waiver or increase or decrease will apply only to the terms hereof, the Company shall have no obligation whatsoever to verify or confirm the accuracy of such determination, Holder and the submission of an Exercise Notice by the Holder shall be deemed to be the Holder’s representation that this Warrant is exercisable pursuant to the terms hereof. The Company shall have no liability not to any person if the Holder’s determination other holder of whether this Warrant is exercisable pursuant to the terms hereof is incorrectWarrants.

Exercise Limitation. In no event shall the a Holder be permitted to exercise this Warrant, or part thereofhereof, if, upon such exercise, the number of shares of Common Stock beneficially owned by the Holder (other than shares which may would otherwise be deemed beneficially owned except for being subject to a limitation on exercise conversion or exercise analogous to the limitation contained in this Section 45), would exceed 4.99% of the number of shares of Common Stock then issued and outstanding, it being the intent of the Company and the Holder that the Holder not be deemed at any time to have the power to vote or dispose of greater than 4.99% of the number of shares of Common Stock issued and outstanding at any time. Nothing contained herein shall be deemed to restrict the right of the Holder to exercise this Warrant at such time as such exercise will not violate the provisions of this Section 4. As used herein, beneficial ownership shall be determined in accordance with Section 13(d) of (i) the Securities Exchange Act of 1934, as amended, and the rules thereunder. To the extent that the limitation contained in this Section 4 applies (and without limiting any rights the Company may otherwise have)5 applies, the Company may rely on the Holder’s determination of whether this Warrant is exercisable pursuant to the terms hereof, the Company shall have no obligation whatsoever to verify or confirm the accuracy of such determination, and the submission of an Exercise Notice by the Holder shall be deemed to be the Holder’s representation that this Warrant is exercisable pursuant to the terms hereofhereof and the Company shall be entitled to rely on such representation without making any further inquiry as to whether this Section 5 applies. Nothing contained herein shall be deemed to restrict the right of a Holder to exercise this Warrant, or part thereof, at such time as such exercise will not violate the provisions of this Section 5. The limitations contained in this Section 5 shall cease to apply (x) upon sixty (60) days’ prior written notice from the Holder to the Company, or (y) immediately upon written notice from the Holder to the Company shall have no liability at any time after the public announcement or other disclosure of the (i) sale, conveyance or disposition of all or substantially all of the assets of the Company; (ii) effectuation of a transaction or series of transactions in which more than 50% of the voting power of the Company is disposed of (other than as a direct result of normal, uncoordinated trading activities in the Common Stock generally); (iii) the consolidation, merger or other business combination of the Company with or into any other entity, immediately following which the prior stockholders of the Company fail to own, directly or indirectly, at least 50% of the voting equity of the surviving entity; or (d) a transaction or series of transactions in which any person if or entity Person or “group” (as such term is used in Sections 13(d) and 14(d) of the Holder’s determination Exchange Act) acquires more than 50% of whether the voting equity of the Company (any of the foregoing transactions in this Warrant is exercisable pursuant to the terms hereof is incorrectSection 5(y) (i) - (iv), a “Change of Control”).

Exercise Limitation. In no event The Company shall the Holder be permitted to not effect any exercise of this Warrant, and the Holder shall not have the right to exercise any portion of this Warrant, pursuant to Section 2(a) or part thereofotherwise, ifto the extent that after giving effect to such issuance after exercise as set forth on the applicable Notice of Exercise, upon the Holder (together with the Holder’s affiliates, and any other person or entity acting as a group together with the Holder or any of the Holder’s affiliates), as set forth on the applicable Notice of Exercise, would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such exercisenotice is delivered to the Company. For purposes of the preceding sentence, the number of shares of the Company’s common stock (“Common Stock”) beneficially owned by the Holder and its affiliates shall include the number of shares of Common Stock beneficially owned by the Holder (other than shares issuable upon exercise of this Warrant with respect to which may be deemed beneficially owned except for such determination is being subject to a limitation on exercise or exercise analogous to the limitation contained in this Section 4)made, would exceed 4.99% of but shall exclude the number of shares of Common Stock then issued which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of its affiliates and outstanding(ii) exercise, it being conversion, or exchange of the intent unexercised, unconverted, or non-exchanged portion of any other securities of the Company and (including, without limitation, any other warrants) subject to a limitation on conversion, exercise, or exchange analogous to the limitation contained herein beneficially owned by the Holder that or any of its affiliates. Except as set forth in the Holder not be deemed at any time to have the power to vote or dispose of greater than 4.99% of the number of shares of Common Stock issued and outstanding at any time. Nothing contained herein shall be deemed to restrict the right of the Holder to exercise this Warrant at such time as such exercise will not violate the provisions preceding sentence, for purposes of this Section 4. As used herein2(b), beneficial ownership shall be determined calculated in accordance with Section 13(d) of (i) the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), and the rules and regulations promulgated thereunder, and the determination of whether a person or entity is an “affiliate” of the Holder shall also be made in accordance with the Exchange Act, the Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations under such acts. To the extent that the limitation contained in this Section 4 applies (and without limiting any rights the Company may otherwise have)2(b) applies, the Company may rely on determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any affiliates) and of which a portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether this Warrant is exercisable pursuant (in relation to other securities owned by the terms hereofHolder together with any affiliates) and of which portion of this Warrant is exercisable, in each case subject to such aggregate percentage limitation, and the Company shall have no obligation whatsoever to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the submission rules and regulations promulgated thereunder. Upon the written or oral request of an Exercise Notice the Holder, the Company shall within one trading day confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be deemed to be 4.99% of the Holder’s representation that this Warrant is exercisable pursuant number of shares of Common Stock outstanding immediately after giving effect to the terms hereofissuance of shares of Common Stock issuable upon exercise of this Warrant. The Company provisions of this paragraph shall have no liability to any person if the Holder’s determination of whether this Warrant is exercisable pursuant to be construed and implemented in a manner otherwise than in strict conformity with the terms hereof is incorrectof this Section 2(b) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.

Exercise Limitation. In no event shall the a Holder be permitted to exercise this Warrant, or part thereofhereof, if, upon such exercise, the number of shares of Common Stock beneficially owned by the Holder (other than shares which may would otherwise be deemed beneficially owned except for being subject to a limitation on exercise conversion or exercise analogous to the limitation contained in this Section 45), would exceed 4.99% of the number of shares of Common Stock then issued and outstanding, it being the intent of the Company and the Holder that the Holder not be deemed at any time to have the power to vote or dispose of greater than 4.99% of the number of shares of Common Stock issued and outstanding at any time. Nothing contained herein shall be deemed to restrict the right of the Holder to exercise this Warrant at such time as such exercise will not violate the provisions of this Section 4. As used herein, beneficial ownership shall be determined in accordance with Section 13(d) of (i) the Securities Exchange Act of 1934, as amended, and the rules thereunder. To the extent that the limitation contained in this Section 4 applies (and without limiting any rights the Company may otherwise have)5 applies, the Company may rely on the Holder’s determination of whether this Warrant is exercisable pursuant to the terms hereof, the Company shall have no obligation whatsoever to verify or confirm the accuracy of such determination, and the submission of an Exercise Notice by the Holder shall be deemed to be the Holder’s representation that this Warrant is exercisable pursuant to the terms hereofhereof and the Company shall be entitled to rely on such representation without making any further inquiry as to whether this Section 5 applies. Nothing contained herein shall be deemed to restrict the right of a Holder to exercise this Warrant, or part thereof, at such time as such exercise will not violate the provisions of this Section 5. The limitations contained in this Section 5 shall cease to apply (x) upon sixty-one (61) days’ prior written notice from the Holder to the Company, or (y) immediately upon written notice from the Holder to the Company shall have no liability at any time after the public announcement or other disclosure of the (i) sale, conveyance or disposition of all or substantially all of the assets of the Company; (ii) effectuation of a transaction or series of transactions in which more than 50% of the voting power of the Company is disposed of (other than as a direct result of normal, uncoordinated trading activities in the Common Stock generally); (iii) the consolidation, merger or other business combination of the Company with or into any other entity, immediately following which the prior stockholders of the Company fail to own, directly or indirectly, at least 50% of the voting equity of the surviving entity; or (d) a transaction or series of transactions in which any person if or entity Person or “group” (as such term is used in Sections 13(d) and 14(d) of the Holder’s determination Exchange Act) acquires more than 50% of whether the voting equity of the Company (any of the foregoing transactions in this Warrant is exercisable pursuant to the terms hereof is incorrectSection 5(y) (i) – (iv), a “Change of Control”).

Exercise Limitation. In no event shall Notwithstanding anything to the Holder be permitted to exercise contrary in this Warrant, or part thereofto the extent, ifand only to the extent, that upon such exerciseany proposed exercise of this Warrant the issuance and delivery of shares of the Company’s Common Stock, taken together with the issuance of all shares of Common Stock and Series B Preferred pursuant to the Merger Agreement, would exceed the aggregate number of shares of Common Stock beneficially owned by which the Company may issue without breaching the Company’s obligations under the rules and regulations of the listing rules of the NASDAQ Capital Market (the restrictions set forth in this sentence, the “Beneficial Ownership Limitation”), subject to Section 1(a), in lieu of receiving shares of Common Stock upon exercise of this Warrant, the Holder may elect (other than shares which may be deemed beneficially owned except by delivery of written notice (the “Election Notice”) to the Company) to receive for being each one (1) share of Common Stock otherwise issuable under this Warrant one-tenth (1/10th) of a share of Series B Preferred. Upon receiving the Election Notice and subject to a limitation on Section 1(a), the Company will issue the appropriate number of shares of the Series B Preferred as Warrant Shares upon exercise or of this Warrant in accordance with the foregoing, it being understood that nothing herein shall entitle the Holder to exercise analogous the Warrant with respect to any Forfeited Shares (as defined in Schedule F to the limitation contained Merger Agreement). For these purposes, beneficial ownership and calculations of percentage ownership will be determined in this Section 4), would exceed 4.99% accordance with Rule 13d-3 under the Exchange Act. Notwithstanding any of the number foregoing to the contrary, the Beneficial Ownership Limitation shall not apply following the receipt of the stockholder approval contemplated by Rule 5635 of the NASDAQ listing rules with respect to the issuance of shares of Common Stock then issued and outstanding, it being the intent upon conversion of the Company and the Holder that the Holder not be deemed at any time to have the power to vote or dispose of greater than 4.99% Series B Preferred in excess of the number of shares of Common Stock issued and outstanding at any time. Nothing contained herein shall be deemed to restrict limitations imposed by such rule (the right of the Holder to exercise this Warrant at such time as such exercise will not violate the provisions of this Section 4. As used herein, beneficial ownership shall be determined in accordance with Section 13(d) of (i) Securities Exchange Act of 1934, as amended, and the rules thereunder. To the extent that the limitation contained in this Section 4 applies (and without limiting any rights the Company may otherwise have“Requisite Stockholder Approval”), the Company may rely on the Holder’s determination of whether this Warrant is exercisable pursuant to the terms hereof, the Company shall have no obligation whatsoever to verify or confirm the accuracy of such determination, and the submission of an Exercise Notice by the Holder shall be deemed to be the Holder’s representation that this Warrant is exercisable pursuant to the terms hereof. The Company shall have no liability to any person if the Holder’s determination of whether this Warrant is exercisable pursuant to the terms hereof is incorrect.

Exercise Limitation. In no event shall Notwithstanding anything to the Holder be permitted to exercise this Warrant, or part thereof, if, upon such exercisecontrary contained herein, the number of shares of Common Stock beneficially owned Warrant Shares that may be acquired by the Holder upon conversion of this Warrant (other than shares which may or otherwise in respect hereof) shall be deemed beneficially owned except for being subject to a limitation on exercise or exercise analogous limited to the limitation contained in this Section 4extent necessary to ensure that, following such conversion (or other issuance), would exceed 4.99% of the total number of shares of Common Stock then issued beneficially owned by such Holder and outstanding, it being its affiliates and any other persons whose beneficial ownership of Common Stock would be aggregated with the intent Holder's for purposes of Section 13(d) of the Company Securities and Exchange Act of 1934, as amended (the Holder that the Holder “Exchange Act”), does not be deemed at any time to have the power to vote or dispose of greater than exceed 4.99% of the total number of issued and outstanding shares of Common Stock issued and outstanding at any time(including for such purpose the shares of Common Stock issuable upon such conversion). Nothing contained herein shall be deemed to restrict the right of the Holder to exercise this Warrant at For such time as such exercise will not violate the provisions of this Section 4. As used hereinpurposes, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the beneficial ownership limitations provision of this Section; provided, however, Holder may increase or decrease the beneficial ownership limitations provision of this Section 2 c) immediately upon written notice to the Company in the event that (i) Securities Exchange Act the Warrant Shares issuable upon exercise of 1934, the Warrants are to be included in any registration statement as amended, provided in Section 5 below; or (ii) the Warrants are exercised in in connection with any of the fundamental transactions enumerated in Section 3 c) below. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the rules thereunderterms of this Section to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. To the extent that the limitation The limitations contained in this Section 4 applies (and without limiting any rights the Company may otherwise have), the Company may rely on the Holder’s determination paragraph shall apply to a successor holder of whether this Warrant is exercisable pursuant to the terms hereof, the Company shall have no obligation whatsoever to verify or confirm the accuracy of such determination, and the submission of an Exercise Notice by the Holder shall be deemed to be the Holder’s representation that this Warrant is exercisable pursuant to the terms hereof. The Company shall have no liability to any person if the Holder’s determination of whether this Warrant is exercisable pursuant to the terms hereof is incorrect.Warrant