Holder’s Conversion Limitations. The Company shall not affect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the conversion, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon: (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates or Attribution Parties, and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 7(c) vi, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section 7(c) vi. applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder. 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 rules and regulations promulgated thereunder. Upon the written or oral request of a 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 7(c) vi, 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 7(c) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 7(c) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 9 contracts

Samples: Convertible Security Agreement (Inspire Veterinary Partners, Inc.), Convertible Security Agreement (Inspire Veterinary Partners, Inc.), Note Purchase Agreement (Inspire Veterinary Partners, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of principal and/or interest of this Note, and a Holder shall not have the right to convert any ~~portion~~ principal and/or interest of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~Notes) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated ~~thereunder~~thereunder .. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two (2) Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(e), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(e) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note.~~Note ..

Appears in 6 contracts

Samples: Convertible Security Agreement (Force Protection Video Equipment Corp.), Convertible Security Agreement (Force Protection Video Equipment Corp.), Convertible Security Agreement (Force Protection Video Equipment Corp.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert ~~any portion of~~ this Note, pursuant to Section 4 or otherwise, to the extent that after giving effect to such issuance after conversion as set forth on the ~~conversion~~applicable Notice of Conversion, the Holder (together with the Holder’s 's Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s 's Affiliates (such Persons, “"Attribution Parties”")) ), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below), provided the foregoing Beneficial Ownership Limitation will not apply in connection with a conversion conditioned on the occurrence of a Fundamental Change. For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which ~~are~~ would be issuable ~~upon:~~ upon (i) conversion of the remaining, ~~unconverted principal amount~~ nonconverted portion of this Note beneficially owned by the Holder or any of its Affiliates or Attribution ~~Parties,~~ Parties and (ii) exercise or conversion of the unexercised or ~~unconverted~~ nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein ~~(including, without limitation, any other Notes or the Warrants)~~ beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(h), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section ~~7(c~~4(h) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which ~~principal amount~~ portion of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder's determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Note is convertible, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for conversion of this Note that are not in compliance with the Beneficial Ownership Limitation, provided this limitation of liability shall not apply if the Holder has detrimentally relied on outstanding share information provided by the Company or the Transfer Agent. 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 rules and regulations promulgated thereunder. For purposes of this Section 4(h), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company's most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, by the Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The “"Beneficial Ownership Limitation” " shall be ~~4.99~~19.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note held by the Holder~~Note. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(h), provided that the Beneficial Ownership Limitation in no event exceeds ~~9.99~~19.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of this Note held by the Holder and the ~~Beneficial Ownership Limitation~~ provisions of this Section ~~7(c~~4(h) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The ~~Beneficial Ownership Limitation~~ provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(h) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained ~~herein~~ 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 Note. Notwithstanding the foregoing, in addition to the Beneficial Ownership Limitation, in the event that the Conversion Price is lower than the Minimum Price, the Conversion Amount shall also be subject to the Share Cap.

Appears in 5 contracts

Samples: 25% Senior Secured Convertible Promissory Note and Security Agreement (Kiromic Biopharma, Inc.), 25% Senior Secured Convertible Promissory Note and Security Agreement (Kiromic Biopharma, Inc.), 25% Senior Secured Convertible Promissory Note and Security Agreement (Kiromic Biopharma, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this ~~Note~~Debenture, and a Holder shall not have the right to convert any portion of this ~~Note~~Debenture, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this ~~Note~~ Debenture beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes~~ Debentures or the Warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this ~~Note~~ Debenture is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this ~~Note~~ Debenture is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Debenture may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Debenture is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 ~~Note~~Debenture, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this ~~Note~~ Debenture held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note~~Debenture.

Appears in 5 contracts

Samples: Convertible Security Agreement (Legend Oil & Gas, Ltd.), Convertible Security Agreement (Aspen Group, Inc.), Securities Purchase Agreement (Legend Oil & Gas, Ltd.)

Holder’s Conversion Limitations. ~~The Company shall not affect any conversion of~~ Except as set forth in this ~~Note~~Section 4(h), ~~and~~ a Holder shall not have the right to convert any portion of this ~~Note~~Note and this Note shall not be automatically converted, to the extent that after giving effect to ~~the~~ such conversion, ~~the~~ such Holder (together with ~~the~~ such Holder’s Affiliates, ~~and~~ any other Persons acting as a group ~~together~~ together, and any other Persons whose beneficial ownership of Common Stock would be aggregated with ~~the Holder or any of~~ the Holder’s ~~Affiliates~~ and the other Attribution Parties for purposes of Section 13(d) of the Exchange Act (such Persons, “Attribution Parties”)) would beneficially own in excess of 19.99% (the “Beneficial Ownership ~~Limitation (as defined below)~~Limitation”) of the shares of Common Stock outstanding immediately after giving effect to such conversion. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by ~~the Holder~~ such Person and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which the determination of such ~~determination~~ sentence is being made, but shall exclude ~~the number of~~ shares of Common Stock which ~~are~~ would be issuable ~~upon:~~ upon (i) ~~conversion~~ exercise of the remaining, unconverted ~~principal amount~~ portion of this Note beneficially owned by ~~the Holder or any of~~ such Person and its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such Person and its Affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained ~~herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its Affiliates or Attribution Parties~~herein. ~~Except as set forth in the preceding sentence, for~~ For purposes of this Section ~~7(c~~4(h), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (1) vithe Company’s most recent Form 10-K, ~~beneficial ownership shall be calculated in accordance~~ Proxy Statement, Form 10-Q, Current Report on Form 8-K or other public filing with ~~Section 13(d~~the Commission, as the case may be, (2) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section 7(c) vi. applies, the determination of whether this Note is convertible (in relation to other securities owned a more recent public announcement by the ~~Holder together with~~ Company or (3) any ~~Affiliates and Attribution Parties) and~~ other notice by the Company or the Company’s transfer agent setting forth the number of ~~which principal amount~~ shares of ~~this Note is convertible shall be in the sole discretion of the Holder~~Common Stock outstanding. ~~In addition~~For any reason at any time, ~~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 rules and regulations promulgated thereunder. Upon~~ upon the written or oral request of a Holder, where such request indicates that it is being made pursuant to this Section 4(h), the Company shall within one (1) Trading Day confirm orally and in writing to ~~the~~ such 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 Note, by ~~the~~ a Holder or and its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported. ~~The “Beneficial Ownership Limitation” shall be 4.99%~~ Upon delivery of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon a written notice to the Company, a Holder may from time to time increase or decrease the Beneficial Ownership Limitation ~~provisions of this Section 7(c) vi,~~ to any other percentage as specified in such notice; 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 7(c(i) ~~vi shall continue to apply. Any~~ any such increase in the Beneficial Ownership Limitation will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the ~~Company~~Company and (ii) any such increase or decrease will apply only to such Holder and not to any other holder of this Note. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms hereof in excess of the Beneficial Ownership Limitaion shall not be deemed to be beneficially owned by a Holder for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the Exchange Act. No prior inability to convert this Note pursuant to this Section 4(h) shall have any effect on the applicability of the provisions of this Section 4(h) with respect to any subsequent determination of whether this Note may be converted. The ~~Beneficial Ownership Limitation~~ provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(h) vi to the extent necessary to correct this paragraph (or any portion ~~hereof)~~ of this paragraph which may be defective or inconsistent with the intended ~~Beneficial Ownership Limitation~~ beneficial ownership limitation contained ~~herein~~ in this Section 4(h) 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 Note.

Appears in 5 contracts

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(e) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this Section 4(e) and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(e), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the SEC, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase ~~or decrease~~ the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(e) ~~vi, provided that the Beneficial Ownership Limitation in no event exceeds~~ to 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 conversion of this Note held by the ~~Holder and~~ Holder. In all events, the ~~Beneficial Ownership Limitation~~ provisions of this Section ~~7(c~~4(e) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Holder may also decrease the Beneficial Ownership Limitation provisions of this ~~paragraph~~ Section 4(e) solely with respect to the Holder’s Note at any time, which decrease shall be effectively immediately upon delivery of notice to the Company. The Beneficial Ownership Limitation provisions of this Section 4(e) shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(e) vi to correct ~~this paragraph (or~~ any portion ~~hereof)~~ which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this ~~paragraph~~ Section 4(d) shall apply to a successor holder of this Note.

Appears in 5 contracts

Samples: Convertible Security Agreement (60 Degrees Pharmaceuticals, Inc.), Convertible Security Agreement (60 Degrees Pharmaceuticals, Inc.), Convertible Security Agreement (60 Degrees Pharmaceuticals, Inc.)

Holder’s Conversion Limitations. ~~The Company shall not affect any conversion of~~ Except as set forth in this ~~Note~~Section 4(h), ~~and~~ a Holder shall not have the right to convert any portion of this ~~Note~~Note and this Note shall not be automatically converted, to the extent that after giving effect to ~~the~~ such conversion, ~~the~~ such Holder (together with ~~the~~ such Holder’s Affiliates, ~~and~~ any other Persons acting as a group ~~together~~ together, and any other Persons whose beneficial ownership of Common Stock would be aggregated with ~~the Holder or any of~~ the Holder’s ~~Affiliates~~ and the other Attribution Parties for purposes of Section 13(d) of the Exchange Act (such Persons, “Attribution Parties”)) would beneficially own in excess of 9.99% (the “Beneficial Ownership ~~Limitation (as defined below)~~Limitation”) of the shares of Common Stock outstanding immediately after giving effect to such conversion. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by ~~the Holder~~ such Person and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which the determination of such ~~determination~~ sentence is being made, but shall exclude ~~the number of~~ shares of Common Stock which ~~are~~ would be issuable ~~upon:~~ upon (i) ~~conversion~~ exercise of the remaining, unconverted ~~principal amount~~ portion of this Note beneficially owned by ~~the Holder or any of~~ such Person and its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such Person and its Affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained ~~herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its Affiliates or Attribution Parties~~herein. ~~Except as set forth in the preceding sentence, for~~ For purposes of this Section ~~7(c~~4(h), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (1) vithe Company’s most recent Form 10-K, ~~beneficial ownership shall be calculated in accordance~~ Proxy Statement, Form 10-Q, Current Report on Form 8-K or other public filing with ~~Section 13(d~~the Commission, as the case may be, (2) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section 7(c) vi. applies, the determination of whether this Note is convertible (in relation to other securities owned a more recent public announcement by the ~~Holder together with~~ Company or (3) any ~~Affiliates and Attribution Parties) and~~ other notice by the Company or the Company’s transfer agent setting forth the number of ~~which principal amount~~ shares of ~~this Note is convertible shall be in the sole discretion of the Holder~~Common Stock outstanding. ~~In addition~~For any reason at any time, ~~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 rules and regulations promulgated thereunder. Upon~~ upon the written or oral request of a Holder, where such request indicates that it is being made pursuant to this Section 4(h), the Company shall within one (1) Trading Day confirm orally and in writing to ~~the~~ such 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 Note, by ~~the~~ a Holder or and its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported. ~~The “Beneficial Ownership Limitation” shall be 4.99%~~ Upon delivery of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon a written notice to the Company, a Holder may from time to time increase or decrease the Beneficial Ownership Limitation ~~provisions of this Section 7(c) vi,~~ to any other percentage as specified in such notice; 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 7(c(i) ~~vi shall continue to apply. Any~~ any such increase in the Beneficial Ownership Limitation will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the ~~Company~~Company and (ii) any such increase or decrease will apply only to such Holder and not to any other holder of this Note. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms hereof in excess of the Beneficial Ownership Limitaion shall not be deemed to be beneficially owned by a Holder for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the Exchange Act. No prior inability to convert this Note pursuant to this Section 4(h) shall have any effect on the applicability of the provisions of this Section 4(h) with respect to any subsequent determination of whether this Note may be converted. The ~~Beneficial Ownership Limitation~~ provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(h) vi to the extent necessary to correct this paragraph (or any portion ~~hereof)~~ of this paragraph which may be defective or inconsistent with the intended ~~Beneficial Ownership Limitation~~ beneficial ownership limitation contained ~~herein~~ in this Section 4(h) 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 Note.

Appears in 4 contracts

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of principal and/or interest of this Note, and a Holder shall not have the right to convert any ~~portion~~ principal and/or interest of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~Notes) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(e) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(e), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two (2) Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than sixty-one (61) days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(e), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(e) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(e) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 4 contracts

Samples: Convertible Security Agreement (Giga Tronics Inc), Convertible Security Agreement (Giga Tronics Inc), Share Exchange Agreement (Giga Tronics Inc)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this ~~Note~~Debenture, and a Holder shall not have the right to convert any portion of this ~~Note~~Debenture, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this ~~Note~~ Debenture beneficially owned by the Holder or any of its Affiliates or Attribution ~~Parties,~~ Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes~~ Debentures or the Warrants) beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this ~~Note~~ Debenture is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which principal amount of this ~~Note~~ Debenture is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Debenture may be converted (in relation to other securities owned by the Holder together with any Affiliates or Attribution Parties) and which principal amount of this Debenture is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 ~~Note~~Debenture, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture held by the Holder. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this ~~Note~~ Debenture held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note~~Debenture.

Appears in 3 contracts

Samples: Securities Purchase Agreement (Rennova Health, Inc.), Securities Exchange Agreement (Microbot Medical Inc.), Securities Purchase Agreement (Rennova Health, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this ~~Note~~Debenture, and a Holder shall not have the right to convert any portion of this ~~Note~~Debenture, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this ~~Note~~ Debenture beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes~~ Debentures or the Warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this ~~Note~~ Debenture is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this ~~Note~~ Debenture is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Debenture may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Debenture is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated ~~thereunder~~thereunder . For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 ~~Note~~Debenture, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this ~~Note~~ Debenture held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note~~Debenture .

Appears in 3 contracts

Samples: Convertible Security Agreement (Anpath Group, Inc.), Convertible Security Agreement (Anpath Group, Inc.), Convertible Security Agreement (Future Healthcare of America)

Holder’s Conversion Limitations. ~~The Company~~ Borrower shall not ~~affect~~ effect any conversion of this ~~Note~~Debenture, and a Holder shall not have the right to convert any portion of this ~~Note~~Debenture, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this ~~Note~~ Debenture beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of ~~the Company~~ Borrower subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes~~ Debentures or the Warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with ~~Section 13(d) of the Exchange Act and~~ the rules and ~~regulations promulgated thereunder~~policies of the TSX Venture Exchange. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this ~~Note~~ Debenture is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this ~~Note~~ Debenture is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Debenture may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Debenture is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to Borrower each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and Borrower shall have no obligation 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)~~ the rules of the ~~Exchange Act and~~ TSX Venture Exchange. For purposes of this Section 4(d), in determining the ~~rules and regulations promulgated thereunder~~number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) Borrower’s most recent periodic or annual report filed with the TSX Venture Exchange, as the case may be, (ii) a more recent public announcement by Borrower, or (iii) a more recent written notice by Borrower or Borrower’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, ~~the Company~~ Borrower shall within ~~one~~ three Trading ~~Day~~ Days 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~~Borrower, including this ~~Note~~Debenture, 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 ~~4.99~~9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture held by the Holder. The Holder may decrease the Beneficial Ownership Limitation at any time and the Holder, upon not less than 61 days’ prior notice to ~~the Company~~Borrower, may increase ~~or decrease~~ the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this ~~Note~~ Debenture held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ will not be effective until the 61st day after such notice is delivered to ~~the Company~~Borrower. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note~~Debenture.

Appears in 3 contracts

Samples: Securities Purchase Agreement (Western Magnesium Corp.), Securities Purchase Agreement (Western Magnesium Corp.), Securities Purchase Agreement (Western Magnesium Corp.)

Holder’s Conversion Limitations. The Company shall not affect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Conversion Notice, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~Notes) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~5(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~5(e) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Conversion Notice shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Conversion Notice that such Conversion Notice has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 5(e), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the SEC, if any, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one Trading Day~~ two Business Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase ~~or decrease~~ the Beneficial Ownership Limitation provisions of this Section ~~7(c~~5(e) ~~vi, 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~~ solely with respect to the ~~issuance of shares of Common Stock upon conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 7(c) vi shall continue to apply~~Holder’s Note. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Holder may also decrease the Beneficial Ownership Limitation provisions of this Section 5(e) solely with respect to the Holder’s Note at any time, which decrease shall be effective immediately upon delivery of notice to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~5(e) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 3 contracts

Samples: Promissory Note (Red Cat Holdings, Inc.), Convertible Note Agreement (Unusual Machines, Inc.), Promissory Note (Red Cat Holdings, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the conversion set forth on the applicable notice of conversion, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which ~~are~~ would be issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note and any outstanding Convertible Interest beneficially owned by the Holder or any of its Affiliates or Attribution ~~Parties,~~ Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or ~~the~~ Warrants) beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~3(f), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~3(f) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which principal amount of this Note and outstanding Convertible Interest is convertible shall be in the sole discretion of the Holder, and the submission of a notice of conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates or Attribution Parties) and which principal amount of this Note and outstanding Convertible Interest is convertible, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 3(f), 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 (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company, or (C) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request (which may be via email) of a Holder, the Company shall within ~~one~~ three Trading ~~Day~~ Days 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 Note, 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 ~~4.99%~~ [4.99%/9.99%] of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note held by the Holder~~Note. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~3(f), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~3(f) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~3(f) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 2 contracts

Samples: Subordinated Secured Convertible Note (SKYX Platforms Corp.), Subordinated Secured Convertible Note (SKYX Platforms Corp.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Conversion Notice, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates or Attribution ~~Parties,~~ Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~3(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~3(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates or Attribution Parties) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 3(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a 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 Note, 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 ~~4.99~~9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 7(c) vi, 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 7(c) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~3(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note. The Holder of this Note shall have the option to opt-out of this Section 3(d) by providing notice in writing to the Company that Section 3(d) of this Note shall not apply to such Holder, which election by such Holder will be effective as of the date of this Amendment.” e. Section 4 of each of the Notes is hereby deleted in its entirety and replaced with the following:

Appears in 2 contracts

Samples: Secured Convertible Notes Amendment (Applied Dna Sciences Inc), Secured Convertible Notes

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this ~~Note~~Debenture, and a Holder shall not have the right to convert any portion of this ~~Note~~Debenture, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon: (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates or Attribution Parties, and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 7(c) vi, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~2(c)(ix) ~~vi.~~ applies, the determination of whether this ~~Note~~ Debenture is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this ~~Note~~ Debenture is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Debenture may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Debenture is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 2(c)(ix), in determining the number of outstanding Common Shares, the Holder may rely on the number of outstanding Common Shares as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the SEC, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of Common Shares outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two (2) Trading ~~Day~~ Days confirm orally and in writing to the Holder the number of ~~shares of~~ Common ~~Stock~~ Shares then outstanding. In any case, the number of outstanding ~~shares of~~ Common ~~Stock~~ Shares shall be determined after giving effect to the conversion or exercise of securities of the Company, including this ~~Note~~Debenture, by the Holder or its Affiliates since the date as of which such number of outstanding ~~shares of~~ Common ~~Stock~~ Shares was reported. The “Beneficial Ownership Limitation” shall be ~~4.99~~all of the following: (i) 4.9% of the number of ~~shares of the~~ Common ~~Stock~~ Shares outstanding immediately after giving effect to the issuance of ~~shares of~~ Common ~~Stock issuable~~ Shares upon conversion of this ~~Note~~ Debenture held by the ~~Holder~~Holder calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder; (ii) 9.9% of the number of Common Shares outstanding immediately after giving effect to the issuance of Common Shares upon conversion of this Debenture held by the Holder calculated in accordance with Sections 102 and 102.1 of Part XX of the Securities Act (Ontario); and (iii) 19.9% of the number of Common Shares outstanding immediately after giving effect to the issuance of Common Shares upon conversion of this Debenture held by the Holder calculated in accordance with the definition of “Beneficial Ownership” in Section 1.1(e) of the Shareholder Rights Plan Agreement of the Company dated as of November 25, 2011, as amended or amended and restated from time to time. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease (provided that, in no case may the Holder decrease the Beneficial Ownership Limitation below 4.9%) the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~2(c)(ix), provided that the Beneficial Ownership Limitation in no event exceeds ~~9.99~~19.9% of the number of ~~shares of the~~ Common ~~Stock~~ Shares outstanding immediately after giving effect to the issuance of ~~shares of~~ Common ~~Stock~~ Shares upon conversion of this ~~Note~~ Debenture held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~2(c)(ix) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~2(c)(ix) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note~~Debenture.

Appears in 2 contracts

Samples: Convertible Security Agreement (Tanzanian Royalty Exploration Corp), Securities Purchase Agreement (Tanzanian Royalty Exploration Corp)

Appears in 2 contracts

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(e) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(e), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the SEC, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase ~~or decrease~~ the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(e) visolely with respect to the Holder’s Note, 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 conversion of this Note held by the Holder and the ~~Beneficial Ownership Limitation~~ provisions of this Section ~~7(c~~4(e) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Holder may also decrease the Beneficial Ownership Limitation provisions of this Section 4(e) solely with respect to the Holder’s Note at any time, which decrease shall be effectively immediately upon delivery of notice to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(e) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 2 contracts

Samples: Convertible Security Agreement (Esports Entertainment Group, Inc.), Convertible Security Agreement (Esports Entertainment Group, Inc.)

Appears in 2 contracts

Holder’s Conversion Limitations. The Company shall not affect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Conversion Notice, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~Notes) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~5(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~5(e) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Conversion Notice shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Conversion Notice that such Conversion Notice has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 5(e), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the SEC, if any, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one Trading Day~~ two Business Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase ~~or decrease~~ the Beneficial Ownership Limitation provisions of this Section ~~7(c~~5(e) visolely with respect to the Holder’s Note, ~~provided that the Beneficial Ownership Limitation~~ up to but not in ~~no event exceeds~~ excess of 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the ~~Holder and the Beneficial Ownership Limitation provisions of this Section 7(c) vi shall continue to apply~~Holder. Any such increase ~~in the Beneficial Ownership Limitation~~ will not be effective until the 61st day after such notice is delivered to the Company. The Holder may also decrease the Beneficial Ownership Limitation provisions of this Section 5(e) solely with respect to the Holder’s Note at any time, which decrease shall be effective immediately upon delivery of notice to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~5(e) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 2 contracts

Samples: Convertible Promissory Note (Red Cat Holdings, Inc.), Promissory Note (Unusual Machines, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of principal and/or interest of this Note, and a Holder shall not have the right to convert any ~~portion~~ principal and/or interest of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~Notes) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure {00788291.DOCX;2 } compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated ~~thereunder~~thereunder .. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(e), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(e) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note.~~Note ..

Appears in 2 contracts

Samples: Convertible Security Agreement (Force Protection Video Equipment Corp.), Convertible Security Agreement (Force Protection Video Equipment Corp.)

Holder’s Conversion Limitations. The ~~Company~~ Borrower shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s ~~Affiliates~~affiliates (as such term is defined in Rule 405 under the Securities Act of 1933) (an “Affiliate”), and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the ~~Company~~ Borrower, in both cases which are subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Borrower each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Borrower shall have no obligation 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 Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Borrower’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Borrower, or (iii) a more recent written notice by the Borrower or the Borrower’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the ~~Company~~ Borrower shall within ~~one Trading Day~~ two business days 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~~Borrower, including this Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the ~~Company~~Borrower, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the ~~Company~~Borrower. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 2 contracts

Samples: Note Amendment Agreement, Note Amendment Agreement (Authentidate Holding Corp)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of principal and/or interest of this Note, and a Holder shall not have the right to convert any ~~portion~~ principal and/or interest of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~Notes) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated ~~thereunder~~thereunder .. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(e), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(e) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note.~~Note ..

Appears in 2 contracts

Samples: Convertible Security Agreement (Force Protection Video Equipment Corp.), Convertible Security Agreement (XLI Technologies, Inc.)

Holder’s Conversion Limitations. ~~The Company~~ Except with respect to a Mandatory Conversion, as set forth above, the Corporation shall not ~~affect~~ effectuate any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) ~~exercise or~~ conversion of the ~~unexercised or~~ unconverted portion of any other securities of the ~~Company~~ Corporation, which are subject to a limitation on conversion ~~or exercise~~ analogous to the limitation contained herein (including, without limitation, any other Notes or the ~~Warrants~~Class B Preferred Stock) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Corporation each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Corporation shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Corporation’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Corporation, or (iii) a more recent written 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 a Holder, the ~~Company~~ Corporation shall within ~~one~~ two Trading ~~Day~~ Days 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~~Corporation, including this Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder~~. The Holder~~, ~~upon~~ provided, however, that a Holder may, at any time, by written notice to the ~~Company~~Corporation, ~~may increase or decrease~~ waive the ~~Beneficial Ownership Limitation~~ preceding provisions of this ~~Section 7(c) vi~~paragraph, 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 7(c) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation but any such waiver will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company, nor will any such waiver affect any other Holder. The rights and obligations of the Holders are several and not joint and that no action taken by a Holder pursuant to the Notes shall be deemed to create a group or create a presumption that the Holders are in any way acting in concert. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 2 contracts

Samples: Share Exchange Agreement (DPW Holdings, Inc.), Share Exchange Agreement (Avalanche International, Corp.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes ~~or the Warrants)~~ beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(e) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this Section 4(e) and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(e), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the SEC, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase ~~or decrease~~ the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(e) ~~vi, provided that the Beneficial Ownership Limitation in no event exceeds~~ to 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 conversion of this Note held by the ~~Holder and~~ Holder. In all events, the ~~Beneficial Ownership Limitation~~ provisions of this Section ~~7(c~~4(e) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Holder may also decrease the Beneficial Ownership Limitation provisions of this ~~paragraph~~ Section 4(e) solely with respect to the Holder’s Note at any time, which decrease shall be effective immediately upon delivery of notice to the Company. The Beneficial Ownership Limitation provisions of this Section 4(e) shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(e) vi to correct ~~this paragraph (or~~ any portion ~~hereof)~~ which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this ~~paragraph~~ Section 4(d) shall apply to a successor holder of this Note.

Appears in 2 contracts

Samples: Convertible Security Agreement (Thoughtful Media Group Inc.), Convertible Note (Thoughtful Media Group Inc.)

Holder’s Conversion Limitations. ~~The Company~~ Borrower shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s 's Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder~~’s Affiliates (such Persons, “Attribution Parties”)~~'s Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of ~~the Company~~ Borrower subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder's determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to Borrower each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and Borrower shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) Borrower's most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by Borrower, or (iii) a more recent written notice by Borrower or Borrower's transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, ~~the Company~~ Borrower shall within ~~one~~ two Trading ~~Day~~ Days 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~~Borrower, including this Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder may decrease the Beneficial Ownership Limitation at any time and the Holder, upon not less than 61 days' prior notice to ~~the Company~~Borrower, may increase ~~or decrease~~ the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ will not be effective until the ~~61st~~ 61'1 day after such notice is delivered to ~~the Company~~Borrower. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note. The limitation contained in this paragraph shall apply only from and after the occurrence of a Going Public Event.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Accelerated Pharma, Inc.), Securities Purchase Agreement (Accelerated Pharma, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of principal and/or interest of this Note, and a Holder shall not have the right to convert any ~~portion~~ principal and/or interest of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~Notes) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(e), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(e), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(e) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 2 contracts

Samples: Securities Purchase Agreement (CannaVEST Corp.), Securities Purchase Agreement (CannaVEST Corp.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of principal and/or interest of this ~~Note~~Debenture, and a Holder shall not have the right to convert any ~~portion~~ principal and/or interest of this ~~Note~~Debenture, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this ~~Note~~ Debenture beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes~~ Debentures or the Warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this ~~Note~~ Debenture is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this ~~Note~~ Debenture is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Debenture may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Debenture is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(e), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 ~~Note~~Debenture, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(e), 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 conversion of this ~~Note~~ Debenture held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(e) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note~~Debenture.

Appears in 1 contract

Samples: Exchange Agreement (Notis Global, Inc.)

Appears in 1 contract

Samples: 25% Senior Secured Convertible Promissory Note and Security Agreement (Kiromic Biopharma, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this ~~Note~~Debenture, and a Holder shall not have the right to convert any portion of this ~~Note~~Debenture, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of ~~shares of Common Stock~~ Ordinary Shares beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of ~~shares of Common Stock~~ Ordinary Shares issuable upon conversion of this ~~Note~~ Debenture with respect to which such determination is being made, but shall exclude the number of ~~shares of Common Stock~~ Ordinary Shares which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this ~~Note~~ Debenture beneficially owned by the Holder or any of its Affiliates or Attribution ~~Parties,~~ Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes~~ Debentures or the Warrants) beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this ~~Note~~ Debenture is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which principal amount of this ~~Note~~ Debenture is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Debenture may be converted (in relation to other securities owned by the Holder together with any Affiliates or Attribution Parties) and which principal amount of this Debenture is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding Ordinary Shares, the Holder may rely on the number of outstanding Ordinary Shares as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of Ordinary Shares outstanding. Upon the written or oral request of a Holder, the Company shall within one Trading Day confirm orally and in writing to the Holder the number of ~~shares of Common Stock~~ Ordinary Shares then outstanding. In any case, the number of outstanding ~~shares of Common Stock~~ Ordinary Shares shall be determined after giving effect to the conversion or exercise of securities of the Company, including this ~~Note~~Debenture, by the Holder or its Affiliates since the date as of which such number of outstanding ~~shares of Common Stock~~ Ordinary Shares was reported. The “Beneficial Ownership Limitation” shall be ~~4.99~~9.99% of the number of ~~shares of the Common Stock~~ Ordinary Shares outstanding immediately after giving effect to the issuance of ~~shares of Common Stock~~ Ordinary Shares issuable upon conversion of this ~~Note~~ Debenture held by the Holder. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of ~~shares of the Common Stock~~ Ordinary Shares outstanding immediately after giving effect to the issuance of ~~shares of Common Stock~~ Ordinary Shares upon conversion of this ~~Note~~ Debenture held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note~~Debenture.

Appears in 1 contract

Samples: Securities Purchase Agreement (Safe-T Group Ltd.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s 's Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder~~’s Affiliates (such Persons, “Attribution Parties”)~~'s Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the ~~Company~~ Company, where for (i) and (ii), such conversion or exercise is subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder's determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this Section 4(d) and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company's most recent periodic or annual report filed with the SEC, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company's Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days' prior notice to the Company, may increase ~~or decrease~~ the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) ~~vi, provided that the Beneficial Ownership Limitation in no event exceeds~~ to 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 conversion of this Note held by the ~~Holder and~~ Holder. In all events, the ~~Beneficial Ownership Limitation~~ provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Holder may also decrease the Beneficial Ownership Limitation provisions of this ~~paragraph~~ Section 4(d) solely with respect to the Holder's Note at any time, which decrease shall be effectively immediately upon delivery of notice to the Company. The Beneficial Ownership Limitation provisions of this Section 4(d) shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct ~~this paragraph (or~~ any portion ~~hereof)~~ which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this ~~paragraph~~ Section 4(d) shall apply to a successor holder of this Note.

Appears in 1 contract

Samples: Securities Purchase Agreement (Live Current Media Inc.)

Holder’s Conversion Limitations. The ~~Company shall not affect any conversion of this Note, and a~~ Holder shall not have the right to convert any ~~portion~~ principal and/or interest of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes~~ promissory notes or the ~~Warrants~~warrants as further defined in the securities purchase agreement dated July ____, 2016) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(e), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(e), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(e) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 1 contract

Samples: Convertible Security Agreement (Ems Find, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any ~~other Notes or~~ portion of the ~~Warrants~~Notes) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the SEC, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase ~~or decrease~~ the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) visolely with respect to the Holder’s Note, 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 conversion of this Note held by the Holder and the ~~Beneficial Ownership Limitation~~ provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Holder may also decrease the Beneficial Ownership Limitation provisions of this Section 4(d) solely with respect to the Holder’s Note at any time, which decrease shall be effectively immediately upon delivery of notice to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this ~~paragraph~~ Section 4(d) shall apply to a successor ~~holder~~ Holder of this Note.

Appears in 1 contract

Samples: Convertible Security Agreement (Inuvo, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this Note, and a the Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~2(k), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~2(k) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 2(k), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by Company or Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two (2) Trading ~~Day~~ Days 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 Note, by the Company or 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 ~~4.99~~9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder may decrease the Beneficial Ownership Limitation at any time and the Holder, upon not less than 61 days’ prior notice to the Company, and may increase ~~or decrease~~ the Beneficial Ownership Limitation ~~provisions of this Section 7(c) vi,~~ 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~2(k) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~2(k) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 1 contract

Samples: Secured Convertible Note (Genius Brands International, Inc.)

Holder’s Conversion Limitations. ~~The Company~~ Borrower shall not ~~affect~~ effect any conversion of this ~~Note, and a Holder shall not have the right~~ Note pursuant to ~~convert any portion~~ Section 4(a) of this Note, to the extent that after giving effect to the conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of ~~shares of Common Stock beneficially~~ Ordinary Shares owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of ~~shares of Common Stock~~ Ordinary Shares issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of ~~shares of Common Stock~~ Ordinary Shares which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of ~~the Company~~ Borrower subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(e) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal and interest amount of this Note is convertible shall be in the sole discretion of the ~~Holder~~Holder (in relation to other securities owned by the Holder together with any Affiliates) and which principal and interest amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. 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 rules and regulations promulgated thereunder. For purposes of this Section 4(e), in determining the number of outstanding Ordinary Shares, the Holder may rely on the number of outstanding Ordinary Shares as stated in the most recent of the following: (i) Borrower’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by Borrower, or (iii) a more recent written notice by Borrower or Borrower’s transfer agent setting forth the number of Ordinary Shares outstanding. Upon the written or oral request of a Holder, ~~the Company~~ Borrower shall within ~~one Trading Day~~ two Business Days confirm orally and in writing to the Holder the number of ~~shares of Common Stock~~ Ordinary Shares then outstanding. In any case, the number of outstanding ~~shares of Common Stock~~ Ordinary Shares shall be determined after giving effect to the conversion or exercise of securities of ~~the Company~~Borrower, including this Note, by the Holder or its Affiliates since the date as of which such number of outstanding ~~shares of Common Stock~~ Ordinary Shares was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 7(c) vi, 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~~ Ordinary Shares issuable upon conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 7(c) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the CompanyHolder. The Beneficial Ownership Limitation provisions of this ~~paragraph~~ Paragraph 4(e) shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(e) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note. In the event all or a portion of the Note may not be converted pursuant to Section 4(a) due to Equity Condition (b), then the amount that may be mandatorily converted without exceeding the Beneficial Ownership Limitation will be converted and the remaining unconverted portion of the Note will be converted by the Borrower promptly after such unconverted portion may be converted without exceeding the Beneficial Ownership Limitation.”

Appears in 1 contract

Samples: Omnibus Amendment Agreement (MaxQ AI Ltd.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of principal and/or interest of this Note, and a Holder shall not have the right to convert any ~~portion~~ principal and/or interest of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 1 contract

Samples: Securities Purchase Agreement (Corphousing Group Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this ~~Note~~Debenture, and a Holder shall not have the right to convert any portion of this ~~Note~~Debenture, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this ~~Note~~ Debenture beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes~~ Debentures or the Warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this ~~Note~~ Debenture is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this ~~Note~~ Debenture is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Debenture may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Debenture is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this Section 4(d) and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two (2) Trading ~~Day~~ Days 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 ~~Note~~Debenture, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture held by the Holder. The Holder, upon not less than sixty-one (61) days’ prior written notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d); provided, ~~provided~~ that the Beneficial Ownership Limitation in no event ~~exceeds~~ shall exceed 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 conversion of this ~~Note held by the Holder~~ Debenture and the ~~Beneficial Ownership Limitation~~ provisions of this Section ~~7(c~~4(d) vi shall continue to ~~apply~~apply with respect to such increased or decreased Beneficial Ownership Limitation, as the case may be. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this ~~paragraph~~ Section 4(d) shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this ~~paragraph~~ Section 4(d) shall apply to a successor holder of this ~~Note~~Debenture.

Appears in 1 contract

Samples: Subordination Agreement (Staffing 360 Solutions, Inc.)

Holder’s Conversion Limitations. The ~~Company shall not affect any conversion of this Note, and a~~ Holder shall not have the right to convert any ~~portion~~ principal and/or interest of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes~~ promissory notes or the ~~Warrants~~warrants as further defined in the securities purchase agreement dated July 21, 2016) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(e), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(e), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(e) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 1 contract

Samples: Convertible Security Agreement (Ems Find, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of principal and/or interest of this Note, and a Holder shall not have the right to convert any ~~portion~~ principal and/or interest of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~Notes) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure {00769147.DOCX;1 } compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated ~~thereunder~~thereunder .. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(e), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(e) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note.~~Note ..

Appears in 1 contract

Samples: Convertible Security Agreement (Force Protection Video Equipment Corp.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of principal and/or interest of this Note, and a Holder shall not have the right to convert any ~~portion~~ principal and/or interest of this Note, to the extent ~~that~~ that, after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock ~~which~~ that are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~Notes) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(e) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two (2) Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior written notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(e) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 1 contract

Samples: Subordination Agreement (NXT-Id, Inc.)

Holder’s Conversion Limitations. 1 The Company shall not ~~affect~~ effect any conversion of this ~~Note~~Debenture, and a Holder shall not have the right to convert any portion of this ~~Note~~Debenture, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this ~~Note~~ Debenture beneficially owned by the Holder or any of its Affiliates or Attribution ~~Parties,~~ Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~Debentures) beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this ~~Note~~ Debenture is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which principal amount of this ~~Note~~ Debenture is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Debenture may be converted (in relation to other securities owned by the Holder together with any Affiliates or Attribution Parties) and which principal amount of this Debenture is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a 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 ~~Note~~Debenture, by the Holder or its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported. 1 Holder to advise whether it would like to include a Beneficial Ownership Cap and what percentage that cap should be. Otherwise, this section will be deleted. The “Beneficial Ownership Limitation” shall be ~~4.99%~~ [4.99%][9.99%][19.99%]2 To be elected by the Holder on such Holder’s signature page to the Purchase Agreement of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture held by the Holder. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), provided that the Beneficial Ownership Limitation in no event exceeds ~~9.99%~~ [9.99%][19.99%] of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of this ~~Note~~ Debenture held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note.~~Debenture

Appears in 1 contract

Samples: Convertible Security Agreement (Apollo Endosurgery, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s 's Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder~~’s Affiliates (such Persons, “Attribution Parties”)~~'s Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein ~~(including, without limitation, any other Notes or the Warrants)~~ beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder's determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company's most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company's transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days' prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 1 contract

Samples: Securities Purchase Agreement (Nac Global Technologies, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of principal and/or interest of this Note, and a Holder shall not have the right to convert any ~~portion~~ principal and/or interest of this Note, to the extent ~~that~~ that, after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock ~~which~~ that are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~Notes) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(e) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two (2) Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior written notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(e) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note. In connection with the conversion of this Note and any other notes that are issued in connection with the Exchange Agreement, until and unless the Company has received the necessary shareholder approval in accordance with the Nasdaq’s corporate governance listing rules, the Company shall not be required to issue in the aggregate more than 19.99% of the number of shares of Common Stock of the Company issued and outstanding immediately prior to the date hereof, and in no event shall the Company be required to pay any penalties or fees of any kind due to the operation of the provisions contained in this Section 4(d).

Appears in 1 contract

Samples: Subordination Agreement (NXT-Id, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent ~~that~~ that, after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock ~~which~~ that are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein ~~(including, without limitation, any other Notes or the Warrants)~~ beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two (2) Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior written notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note. In no event shall the Beneficial Ownership Limitation extend or otherwise modify the Maturity Date, whereupon all remaining principal and interest due hereunder shall be due and payable by the Company.

Appears in 1 contract

Samples: Senior Secured Convertible Promissory Note (Dolphin Entertainment, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this ~~Note~~Debenture, and a Holder shall not have the right to convert any portion of this ~~Note~~Debenture, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this ~~Note~~ Debenture beneficially owned by the Holder or any of its Affiliates or Attribution ~~Parties,~~ Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes~~ Debentures or the Warrants) beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this ~~Note~~ Debenture is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which principal amount of this ~~Note~~ Debenture is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Debenture may be converted (in relation to other securities owned by the Holder together with any Affiliates or Attribution Parties) and which principal amount of this Debenture is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this Section 4(d) and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a 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 ~~Note~~Debenture, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture held by the Holder. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this ~~Note~~ Debenture held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this ~~paragraph~~ Section 4(d) shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this ~~paragraph~~ Section 4(d) shall apply to a successor holder of this ~~Note~~Debenture.

Appears in 1 contract

Samples: Securities Amendment Agreement (Emmaus Life Sciences, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~Notes) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the SEC, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase ~~or decrease~~ the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) visolely with respect to the Holder’s Note, 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 conversion of this Note held by the Holder and the ~~Beneficial Ownership Limitation~~ provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Holder may also decrease the Beneficial Ownership Limitation provisions of this Section 4(d) solely with respect to the Holder’s Note at any time, which decrease shall be effectively immediately upon delivery of notice to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 1 contract

Samples: Convertible Security Agreement (Sigma Labs, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 7(c) vi, 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 7(c) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this ~~paragraph~~ Section 4(d) shall apply to a successor holder of this Note.

Appears in 1 contract

Samples: Securities Purchase Agreement (American Resources Corp)

Holder’s Conversion Limitations. The ~~Company~~ Borrower shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to such issuance after conversion as set forth on the ~~conversion~~applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons~~Affiliates), ~~“Attribution Parties”))~~ would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which ~~are~~ would be issuable ~~upon:~~ upon (i) conversion of the remaining, ~~unconverted principal amount~~ nonconverted portion of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or ~~unconverted~~ nonconverted portion of any other securities of the ~~Company~~ Borrower (including, without limitation, any other Common Stock Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein ~~(including, without limitation, any other Notes or the Warrants)~~ beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this ~~Section 7(c) vi~~Section, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Borrower is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section ~~7(c) vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which ~~principal amount~~ portion of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates) and of which portion of this Note is convertible, in each case subject to the Beneficial Ownership Limitation, and the Borrower shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section, in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Borrower’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Borrower or (C) a more recent written notice by the Borrower or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the ~~Company~~ Borrower shall within ~~one~~ two Trading ~~Day~~ Days 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~~Borrower, including this Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note held by the Holder~~Note. The Holder, upon not less than 61 days’ prior notice to the ~~Company~~Borrower, may increase or decrease the Beneficial Ownership Limitation provisions of this ~~Section 7(c) vi~~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 conversion of this Note held by the Holder and the ~~Beneficial Ownership Limitation~~ provisions of this Section ~~7(c) vi~~ shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the ~~Company~~Borrower. The ~~Beneficial Ownership Limitation~~ provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c) vi~~ to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained ~~herein~~ 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 Note.” (g) A new Section 1.8 of the Notes is hereby added as follows:

Appears in 1 contract

Samples: Promissory Note (Fluoropharma Medical, Inc.)

Holder’s Conversion Limitations. (i) The Company shall not ~~affect~~ be obligated to issue any shares of Common Stock pursuant to the terms of this Note, and the Holder shall not have the right to receive pursuant to the terms of this Note any shares of Common Stock, if the issuance of such shares of Common Stock, when aggregated with the shares of Common Stock underlying that certain $600,000 Convertible Promissory Note (“Note A”) issued to the original Holder pursuant to that certain Exchange Agreement dated of even date herewith by and between the Company and the original holder, would exceed 3,249,219 shares of Common Stock (the “Exchange Cap”), except that such limitation shall not apply in the event that the Company obtains the approval of its stockholders as required by the applicable rules of the NYSE American for issuances of Common Stock in excess of such amount. In the event that the Holder shall sell or otherwise transfer any of the Note, the transferee shall be allocated a pro rata portion of the Exchange Cap, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap allocated to such transferee. (ii) The Company shall not effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder~~’s Affiliates~~'s Affiliates (as defined below), and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder~~’s Affiliates (such Persons, “Attribution Parties”)~~'s Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein ~~(including, without limitation, any other Notes or the Warrants)~~ beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~2(f)(ii), beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~2(f)(ii) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder's determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 2(f)(ii), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company's most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company's transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one Trading Day~~ two (2) business days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 7(c) vi, 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 7(c) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~2(f)(ii) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note. “Affiliate” means, as to any person, any other person (a) that directly or indirectly through one or more intermediaries controls or is controlled by, or is under direct or indirect common control with, the subject person, (b) that directly or indirectly beneficially owns or holds ten percent (10%) or more of any class of voting equity of the subject person, or (c) ten percent (10%) or more of the voting equity of which is directly or indirectly beneficially owned or held by the subject person. For the purposes of this definition, “control” when used with respect to any person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, through representation on such person’s board of directors or other management committee or group, by contract or otherwise.

Appears in 1 contract

Samples: Convertible Promissory Note (Digital Power Corp)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates or Attribution Parties, and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~Notes) beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates or Attribution Parties) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within one (1) 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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~~ Holder of this Note.

Appears in 1 contract

Samples: Securities Purchase Agreement (Attis Industries Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, pursuant to Section 3 or otherwise, to the extent that after giving effect to such issuance after conversion as set forth on the ~~conversion~~applicable Conversion Notice, the Holder (together with the Holder’s ~~Affiliates~~affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons~~affiliates), ~~“Attribution Parties”))~~ would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its ~~Affiliates and Attribution Parties~~ affiliates shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which ~~are~~ would be issuable ~~upon:~~ upon (i) conversion of the remaining, ~~unconverted principal amount~~ nonconverted portion of this Note beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties,~~ affiliates and (ii) exercise or conversion of the unexercised or ~~unconverted~~ nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents (as defined below)) subject to a limitation on conversion or exercise analogous to the limitation contained herein ~~(including, without limitation, any other Notes or the Warrants)~~ beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~3(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section ~~7(c~~3(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~affiliates) and of which ~~principal amount~~ portion of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Conversion Notice shall be deemed to be the Holder’s determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any affiliates) and of which portion of this Note is convertible, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 3(d), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, by the Holder or its ~~Affiliates~~ affiliates since the date as of which such number of outstanding shares of Common Stock was reported. The “"Beneficial Ownership Limitation” " shall be 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note held by the Holder~~Note. The Holder, upon not less than 61 days’ prior notice to the Company, may increase ~~or decrease~~ the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~3(d). The Holder may, ~~provided that~~ at any time, decrease 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 7(c) vi shall continue to applyLimitation, effective immediately. Any increase ~~in the Beneficial Ownership Limitation~~ will not be effective until the 61st day after such notice is delivered to the Company. The ~~Beneficial Ownership Limitation~~ provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~3(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained ~~herein~~ 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 Note.

Appears in 1 contract

Samples: Convertible Promissory Note (NaturalNano, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(e) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(e), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(e), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(e) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(e) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 1 contract

Samples: Exchange Agreement (Electronic Cigarettes International Group, Ltd.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this ~~Note~~Debenture, and a Holder shall not have the right to convert any portion of this ~~Note~~Debenture, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this ~~Note~~ Debenture beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~Debentures) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this ~~Note~~ Debenture is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this ~~Note~~ Debenture is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Debenture may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Debenture is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 ~~Note~~Debenture, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this ~~Note~~ Debenture held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note~~Debenture.

Appears in 1 contract

Samples: Securities Purchase Agreement (Recovery Energy, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, pursuant to Section 3 or otherwise, to the extent that after giving effect to such issuance after conversion as set forth on the ~~conversion~~applicable Conversion Notice, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons~~Affiliates), ~~“Attribution Parties”))~~ would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which ~~are~~ would be issuable ~~upon:~~ upon (i) conversion of the remaining, ~~unconverted principal amount~~ nonconverted portion of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or ~~unconverted~~ nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein ~~(including, without limitation, any other Notes or the Warrants)~~ beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~3(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section ~~7(c~~3(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which ~~principal amount~~ portion of this Note is convertible shall be in the sole discretion of the Holder, and the submission of an Conversion Notice shall be deemed to be the Holder’s determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates) and of which portion of this Note is convertible, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 3(d), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note held by the Holder~~Note. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 7(c) vi, 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 7(c) vi shall continue to apply3(d). Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The ~~Beneficial Ownership Limitation~~ provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~3(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained ~~herein~~ 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 Note.

Appears in 1 contract

Samples: Promissory Note (Biozone Pharmaceuticals, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this ~~Section 7(c) vi~~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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~ shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c) vi~~ to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 1 contract

Samples: Convertible Security Agreement (Avant Diagnostics, Inc)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of the Principal Amount and/or interest of this Note, and a the Holder shall not have the right to convert any ~~portion~~ Principal Amount and/or interest of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Conversion Notice, the Holder (together with the Holder’s Affiliates, as such term is defined below, and any ~~other Persons~~ persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or the ~~Warrants~~Warrant) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~2.5, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c) vi.~~ 2.5 applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~affiliates) and of which ~~principal amount~~ the Principal Amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which the Principal Amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Conversion Notice that such Conversion Notice has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one Trading Day~~ two trading days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~2.5, 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~ 2.5 shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c) vi~~ 2.5 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note. The term “Affiliate” has the meaning ascribed to it in Rule 501 promulgated under the Securities Act.

Appears in 1 contract

Samples: Note Exchange Agreement (Cell Source, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this ~~Note~~Debenture, and a Holder shall not have the right to convert any portion of this ~~Note~~Debenture, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this ~~Note~~ Debenture beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~Debentures) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this ~~Note~~ Debenture is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this ~~Note~~ Debenture is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Debenture may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Debenture is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 ~~Note~~Debenture, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this ~~Note~~ Debenture held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note~~Debenture.

Appears in 1 contract

Samples: Securities Purchase Agreement (Eyes on the Go, Inc.)

Holder’s Conversion Limitations. ~~The Company shall not affect any conversion of this Note~~Notwithstanding anything herein to the contrary, ~~and~~ a Holder shall ~~not~~ have ~~the~~ no right to convert ~~any portion~~ its Securities into shares of ~~this Note~~Common Stock, pursuant to Section 9.01(a) hereof or otherwise, to the extent ~~that~~ that, after giving effect to the issuance of Common Stock upon such conversion, ~~the~~ such Holder (together with ~~the~~ such Holder’s ~~Affiliates,~~ Affiliates and any other Persons acting as a group together with ~~the~~ such Holder or any of ~~the~~ such Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own Common Stock in excess of the Beneficial Ownership ~~Limitation (as defined below)~~Limitation. For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon: (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates or Attribution Parties, and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 7(c) vi, beneficial ownership shall be ~~calculated~~ determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~9.01(h) ~~vi.~~ applies, the determination of whether ~~this Note is~~ the Securities of any Holder are convertible (in relation to other securities owned by ~~the~~ such Holder ~~together with~~ or any ~~Affiliates and Attribution Parties~~of such Holder’s Affiliates) and of which ~~principal amount~~ portion of ~~this Note is~~ the Securities of any Holder are convertible shall be in the sole discretion of such Holder, and the submission of a notice of conversion in accordance with Section 9.01(c) shall be deemed to be such Holder’s determination of whether its Securities are convertible (in relation to other securities owned by such Holder or any of such Holder’s Affiliates) and of which portion of its Securities are convertible, in each case subject to the Beneficial Ownership Limitation, and neither the Company nor the Conversion Agent shall have any obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 9.01(h), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (i) the Company’s most recent periodic or annual report filed with the SEC, (ii) a more recent public announcement by the Company or (iii) a more recent written notice by the Company or the transfer agent of the Common Stock setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one Trading Day~~ two Business Days confirm orally and in writing to ~~the~~ such 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 7(c) vi, 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 7(c) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 7(c) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 1 contract

Samples: First Supplemental Indenture (Flotek Industries Inc/Cn/)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s ~~Affiliates~~affiliates, and any ~~other Persons~~ persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~Notes) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~3(c), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~3(C) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 3(c), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, by the Holder or its ~~Affiliates~~ affiliates since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be ~~4.99~~9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~3(c), provided that the Beneficial Ownership Limitation in no event exceeds ~~9.99~~19.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~3(c) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c) vi~~ 3(c to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 1 contract

Samples: Note Purchase Agreement (Cereplast Inc)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this ~~Note~~Debenture, and a Holder shall not have the right to convert any portion of this ~~Note~~Debenture, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this ~~Note~~ Debenture beneficially owned by the Holder or any of its Affiliates or Attribution ~~Parties,~~ Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~Debentures) beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this ~~Note~~ Debenture is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which principal amount of this ~~Note~~ Debenture is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Debenture may be converted (in relation to other securities owned by the Holder together with any Affiliates or Attribution Parties) and which principal amount of this Debenture is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 ~~Note~~Debenture, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture held by the Holder. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this ~~Note~~ Debenture held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note~~Debenture.

Appears in 1 contract

Samples: Convertible Security Agreement (Soupman, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of principal and/or interest of this Note, and a Holder shall not have the right to convert any ~~portion~~ principal and/or interest of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~Notes) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated ~~thereunder~~thereunder .. For purposes of this Section 4(d), in determining the number of {00788291.DOCX;2 } outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(e), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(e) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note.~~Note ..

Appears in 1 contract

Samples: Convertible Security Agreement (Force Protection Video Equipment Corp.)

Holder’s Conversion Limitations. The ~~Company shall not affect any conversion of this Note, and a~~ Holder shall not have the right to convert any ~~portion~~ principal and/or interest of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes~~ promissory notes or the ~~Warrants~~warrants as further defined in the securities purchase agreement dated June 9, 2016) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(e), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(e), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(e) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 1 contract

Samples: Securities Purchase Agreement (Cachet Financial Solutions, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this ~~Note~~Debenture, and a Holder shall not have the right to convert any portion of this ~~Note~~Debenture, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this ~~Note~~ Debenture beneficially owned by the Holder or any of its Affiliates or Attribution ~~Parties,~~ Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes~~ Debentures or the Warrants) beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this ~~Note~~ Debenture is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which principal amount of this ~~Note~~ Debenture is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Debenture may be converted (in relation to other securities owned by the Holder together with any Affiliates or Attribution Parties) and which principal amount of this Debenture is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a 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 ~~Note~~Debenture, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture held by the Holder. The Holder, upon written notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this ~~Note~~ Debenture held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such written notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note~~Debenture.

Appears in 1 contract

Samples: Convertible Security Agreement (SOCIAL REALITY, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this ~~Note~~Debenture, and a Holder shall not have the right to convert any portion of this ~~Note~~Debenture, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted ~~principal amount~~ Principal Amount of this ~~Note~~ Debenture beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, any other Debentures or the Warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein ~~(including, without limitation, any other Notes or the Warrants)~~ beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this ~~Note~~ Debenture is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which ~~principal amount~~ Principal Amount of this ~~Note~~ Debenture is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Debenture may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which Principal Amount of this Debenture is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days confirm orally ~~and~~ or in ~~writing~~ writing, at the request of the Holder, 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 ~~Note~~Debenture, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this ~~Note~~ Debenture held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note~~Debenture.

Appears in 1 contract

Samples: Securities Purchase Agreement (Ads in Motion, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 7(c) vi, 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 7(c) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 7(c) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 1 contract

Samples: Convertible Security Agreement (Avant Diagnostics, Inc)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this ~~Note~~Debenture, and a Holder shall not have the right to convert any portion of this ~~Note~~Debenture, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this ~~Note~~ Debenture beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes~~ Debentures or the Warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this ~~Note~~ Debenture is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this ~~Note~~ Debenture is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Debenture may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Debenture is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated ~~thereunder~~thereunder . For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 ~~Note~~Debenture, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture held by the Holder. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this ~~Note~~ Debenture held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any such increase in to the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note~~Debenture .

Appears in 1 contract

Samples: Convertible Security Agreement (UAS Drone Corp.)

Appears in 1 contract

Samples: Convertible Security Agreement (Stevia First Corp.)

Holder’s Conversion Limitations. ~~The Company shall not affect any conversion of~~ Except as set forth in this ~~Note~~Section 4(h), ~~and~~ a Holder shall not have the right to convert any portion of this ~~Note~~Note and this Note shall not be automatically converted, to the extent that after giving effect to ~~the~~ such conversion, ~~the~~ such Holder (together with ~~the~~ such Holder’s Affiliates, ~~and~~ any other Persons acting as a group ~~together~~ together, and any other Persons whose beneficial ownership of Common Stock would be aggregated with ~~the Holder or any of~~ the Holder’s ~~Affiliates~~ and the other Attribution Parties for purposes of Section 13(d) of the Exchange Act (such Persons, “Attribution Parties”)) would beneficially own in excess of 9.99% (the “Beneficial Ownership ~~Limitation (as defined below)~~Limitation”) of the shares of Common Stock outstanding immediately after giving effect to such conversion. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by ~~the Holder~~ such Person and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which the determination of such ~~determination~~ sentence is being made, but shall exclude ~~the number of~~ shares of Common Stock which ~~are~~ would be issuable ~~upon:~~ upon (i) ~~conversion~~ exercise of the remaining, unconverted ~~principal amount~~ portion of this Note beneficially owned by ~~the Holder or any of~~ such Person and its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such Person and its Affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained ~~herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its Affiliates or Attribution Parties~~herein. ~~Except as set forth in the preceding sentence, for~~ For purposes of this Section ~~7(c~~4(h), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (1) vithe Company’s most recent Form 10-K, ~~beneficial ownership shall be calculated in accordance~~ Proxy Statement, Form 10-Q, Current Report on Form 8-K or other public filing with ~~Section 13(d~~the Commission, as the case may be, (2) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section 7(c) vi. applies, the determination of whether this Note is convertible (in relation to other securities owned a more recent public announcement by the ~~Holder together with~~ Company or (3) any ~~Affiliates and Attribution Parties) and~~ other notice by the Company or the Company’s transfer agent setting forth the number of ~~which principal amount~~ shares of ~~this Note is convertible shall be in the sole discretion of the Holder~~Common Stock outstanding. ~~In addition~~For any reason at any time, ~~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 rules and regulations promulgated thereunder. Upon~~ upon the written or oral request of a Holder, where such request indicates that it is being made pursuant to this Section 4(h), the Company shall within one (1) Trading Day confirm orally and in writing to ~~the~~ such 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 Note, by ~~the~~ a Holder or and its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported. ~~The “Beneficial Ownership Limitation” shall be 4.99%~~ Upon delivery of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon a written notice to the Company, a Holder may from time to time increase or decrease the Beneficial Ownership Limitation ~~provisions of this Section 7(c) vi,~~ to any other percentage as specified in such notice; 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 7(c(i) ~~vi shall continue to apply. Any~~ any such increase in the Beneficial Ownership Limitation will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the ~~Company~~Company and (ii) any such increase or decrease will apply only to such Holder and not to any other holder of this Note. ~~The~~ For purposes of clarity, the shares of Common Stock issuable pursuant to the terms hereof in excess of the Beneficial Ownership Limitation shall not be deemed to be beneficially owned by a Holder for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the Exchange Act. No prior inability to convert this Note pursuant to this Section 4(h) shall have any effect on the applicability of the provisions of this Section 4(h) with respect to any subsequent determination of whether this Note may be converted. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(h) vi to the extent necessary to correct this paragraph (or any portion ~~hereof)~~ of this paragraph which may be defective or inconsistent with the intended ~~Beneficial Ownership Limitation~~ beneficial ownership limitation contained ~~herein~~ in this Section 4(h) 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 Note.

Appears in 1 contract

Samples: 25% Senior Secured Convertible Promissory Note and Security Agreement (Kiromic Biopharma, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(e) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(e), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(e), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(e) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(e) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The holders of Common Stock shall be third party beneficiaries of this paragraph and the Company may not waive this paragraph without the consent of holders of a majority of its Common Stock. The limitations contained in this paragraph shall apply to a successor holder of this Note.

Appears in 1 contract

Samples: Exchange Agreement (Electronic Cigarettes International Group, Ltd.)

Appears in 1 contract

Samples: 25% Senior Secured Convertible Promissory Note and Security Agreement (Kiromic Biopharma, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this ~~Note~~Debenture, and a Holder shall not have the right to convert any portion of this ~~Note~~Debenture, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s ~~Affiliates,~~ affiliates,and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its ~~Affiliates and Attribution Parties~~ affiliates shall include the number of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this ~~Note~~ Debenture beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties,~~ affiliates and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein ~~(including, without limitation, any other Notes or the Warrants)~~ beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this ~~Note~~ Debenture is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~affiliates) and of which principal amount of this ~~Note~~ Debenture is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Debenture may be converted (in relation to other securities owned by the Holder together with any affiliates) and which principal amount of this Debenture is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 ~~Note~~Debenture, by the Holder or its ~~Affiliates~~ affiliates since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be ~~4.99~~9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture held by the Holder. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 7(c) vi, 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 7(c) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note~~Debenture.

Appears in 1 contract

Samples: 10% Convertible Debenture (Blue Calypso, Inc.)

Holder’s Conversion Limitations. ~~The Company~~ Borrower shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of ~~the Company~~ Borrower subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to Borrower each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and Borrower shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) Borrower’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by Borrower, or (iii) a more recent written notice by Borrower or Borrower’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, ~~the Company~~ Borrower shall within ~~one~~ two Trading ~~Day~~ Days 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~~Borrower, including this Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder may decrease the Beneficial Ownership Limitation at any time and the Holder, upon not less than 61 days’ prior notice to ~~the Company~~Borrower, may increase ~~or decrease~~ the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ will not be effective until the ~~61st~~ 61’ day after such notice is delivered to ~~the Company~~Borrower. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note. The limitation contained in this paragraph shall apply only from and after the occurrence of a Going Public Event.

Appears in 1 contract

Samples: Securities Purchase Agreement (Accelerated Pharma, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this ~~Note~~Debenture, and a Holder shall not have the right to convert any portion of this ~~Note~~Debenture, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this ~~Note~~ Debenture beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes~~ Debentures or the Warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this ~~Note~~ Debenture is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this ~~Note~~ Debenture is convertible shall be in the sole discretion of the Holder~~. In addition~~, and the submission of a ~~determination as to any group status as contemplated above~~ Notice of Conversion shall be ~~determined~~ deemed to be the Holder’s determination of whether this Debenture may be converted (in ~~accordance~~ relation to other securities owned by the Holder together with ~~Section 13(d~~any Affiliates) and which principal amount of this Debenture is convertible, in each case subject to the ~~Exchange Act~~ Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and ~~the rules and regulations promulgated thereunder. Upon the written or oral request of a Holder,~~ the Company shall ~~within one Trading Day~~ have no obligation to verify or confirm ~~orally and in writing to~~ the ~~Holder the number~~ accuracy 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 7(c) vi, 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 7(c) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 7(c) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.13

Appears in 1 contract

Samples: Convertible Security Agreement (Jayhawk Energy, Inc.)

Holder’s Conversion Limitations. The Company shall not affect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the conversion, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon: (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates or Attribution Parties, and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~notes) beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(c)(vii), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(c)(vii) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder. 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 rules and regulations promulgated thereunder. For purposes of this Section 4(c)(vii), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company, or (C) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(c)(vii), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(c)(vii) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(c)(vii) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 1 contract

Samples: Convertible Security Agreement (Vivakor, Inc.)

Holder’s Conversion Limitations. The Company shall not affect any conversion of this Amended Note, and a Holder shall not have the right to convert any portion of this Amended Note, to the extent that after giving effect to the conversion, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of this Amended Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon: (i) conversion of the remaining, unconverted principal amount of this Amended Note beneficially owned by the Holder or any of its Affiliates or Attribution Parties, and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~notes) beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(c)(vii), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(c)(vii) ~~vi.~~ applies, the determination of whether this Amended Note is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which principal amount of this Amended Note is convertible shall be in the sole discretion of the Holder. 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 rules and regulations promulgated thereunder. For purposes of this Section 4(c)(vii), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company, or (C) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a 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 Amended Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Amended Note held by the Holder. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(c)(vii), 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 conversion of this Amended Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(c)(vii) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(c)(vii) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Amended Note.

Appears in 1 contract

Samples: Convertible Security Agreement (Vivakor, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of principal and/or interest of this Note, and a Holder shall not have the right to convert any ~~portion~~ principal and/or interest of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~Notes) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two (2) Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than sixty-one (61) days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 1 contract

Samples: Securities Purchase Agreement (Delcath Systems, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of principal and/or interest of this Note, and a Holder shall not have the right to convert any ~~portion~~ principal and/or interest of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~Notes) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations {00757963.DOCX;3 } promulgated ~~thereunder~~thereunder .. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(e), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(e) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note.~~Note ..

Appears in 1 contract

Samples: Convertible Security Agreement (Force Protection Video Equipment Corp.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this ~~Note~~Debenture, and a Holder shall not have the right to convert any portion of this ~~Note~~Debenture, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this ~~Note~~ Debenture beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes~~ Debentures or the Warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this ~~Note~~ Debenture is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this ~~Note~~ Debenture is convertible shall be in the sole discretion of the Holder~~. In addition~~, and the submission of a ~~determination as to any group status as contemplated above~~ Notice of Conversion shall be ~~determined~~ deemed to be the Holder’s determination of whether this Debenture may be converted (in ~~accordance~~ relation to other securities owned by the Holder together with ~~Section 13(d~~any Affiliates) and which principal amount of this Debenture is convertible, in each case subject to the ~~Exchange Act~~ Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation to verify or confirm the accuracy of such determination. and the rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 ~~Note~~Debenture, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this ~~Note~~ Debenture held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note~~Debenture.

Appears in 1 contract

Samples: Securities Purchase Agreement (Legend Oil & Gas, Ltd.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this ~~Note~~Debenture, and a Holder shall not have the right to convert any portion of this ~~Note~~Debenture, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this ~~Note~~ Debenture beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein ~~(including, without limitation, any other Notes or the Warrants)~~ beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this ~~Note~~ Debenture is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this ~~Note~~ Debenture is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Debenture may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Debenture is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, including without limitation, information and reports posted on the OTC Disclosure and News Service, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 ~~Note~~Debenture, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this ~~Note~~ Debenture held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note~~Debenture.

Appears in 1 contract

Samples: Convertible Debenture Purchase Agreement (Diamond Technology Enterprises Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s ~~Affiliates~~affiliates, and any ~~other Persons~~ persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~Notes) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~3(c), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~3(C) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 3(c), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, by the Holder or its ~~Affiliates~~ affiliates since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be ~~4.99~~9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~3(c), provided that the Beneficial Ownership Limitation in no event exceeds ~~9.99~~19.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~3(c) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~3(c) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 1 contract

Samples: Exchange Agreement (Cereplast Inc)

Holder’s Conversion Limitations. (i) The Company shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). , except to the extent that the Holder already owns in excess of the Beneficial Ownership Limitation as of the Conversion Date. (ii) For purposes of the foregoing ~~sentence~~sub-section, the number of ~~shares of Common Stock~~ Shares beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of ~~shares of Common Stock~~ Shares issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of ~~shares of Common Stock~~ Shares which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted ~~principal amount of this Note~~ Principal Amount beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or ~~the Warrants~~Warrants or Options) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. . (iii) To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which ~~principal amount of this Note~~ Principal Amount is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which Principal Amount is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. (iv) For purposes of this Section 4(d), in determining the number of outstanding Shares, the Holder may rely on the number of outstanding Shares as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of Shares outstanding. Upon the ~~written or oral~~ request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days confirm ~~orally and~~ in writing to the Holder the number of ~~shares of Common Stock~~ Shares then outstanding. In any case, the number of outstanding ~~shares of Common Stock~~ Shares shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Note, by the Holder or its Affiliates since the date as of which such number of outstanding ~~shares of Common Stock~~ Shares was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 7(c) vi, 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 7(c) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 7(c) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 1 contract

Samples: Securities Purchase Agreement (Ipsidy Inc.)

Holder’s Conversion Limitations. (a) The Company shall not ~~affect~~ effect any conversion of this Note, and a the Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion submitted by the Holder, the Holder (together with the Holder’s ~~Affiliates,~~ Affiliates (as defined below) and any ~~other~~ Persons (as defined below) acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of ~~Common Stock~~ common stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of ~~Common Stock~~ common stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of ~~Common Stock~~ common stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount and interest of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes~~ convertible securities or ~~the Warrants~~warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~3, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1933, as amended (the “ Exchange Act ”), and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c) vi.~~ 3 applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount and/or interest of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount and interest of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this Section 3 and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 3, in determining the number of outstanding shares of common stock, the Holder may rely on the number of outstanding shares of common stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report, as the case may be, filed with the Securities and Exchange Commission (the “ Commission ”), (ii) a more recent public announcement by the Company or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of common stock outstanding. Upon the written or oral request of a the Holder, the Company shall within ~~one Trading Day~~ two (2) trading days confirm orally and in writing to the Holder the number of shares of ~~Common Stock~~ common stock then outstanding. In any case, the number of outstanding shares of ~~Common Stock~~ common stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Note, by the Holder or its Affiliates since the date as of which such number of outstanding shares of ~~Common Stock~~ common stock was reported~~. The~~ . (b) For purposes of this Note, the “Beneficial Ownership Limitation” shall be ~~4.99~~9.99% of the number of shares of ~~the Common Stock~~ common stock outstanding immediately after giving effect to the issuance of shares of ~~Common Stock~~ common stock issuable upon conversion of this ~~Note held by the Holder~~Note. The ~~Holder, upon notice to the Company, may increase or decrease the~~ Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~3 may be waived by the Holder, ~~provided that~~ at the ~~Beneficial Ownership Limitation in no event exceeds 9.99%~~ election of the ~~number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock~~ Holder, upon ~~conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 7(c~~not less than sixty one (61) ~~vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such~~ calendar days’ prior written notice ~~is delivered~~ to the Company. The ~~Beneficial Ownership Limitation~~ provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c) vi~~ 3 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained ~~herein~~ 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 Note. (c) For purposes of this Note, “

Appears in 1 contract

Samples: Subscription Agreement (Wizard World, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, ~~any other Notes or~~ the ~~Warrants~~Warrant (as that term is defined in Purchase Agreement) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(c), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(c) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. ~~In addition~~To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a ~~determination as~~ Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation to ~~any group status as contemplated~~ verify or confirm the accuracy of such above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 4(c), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 ~~4.99~~9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 7(c) vi, 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 7(c) vi shall continue to apply4(c). Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(c) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note. For purposes of this Section “Affiliate” means any person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a person, as such terms are used in and construed under Rule 405 under the Securities Act.

Appears in 1 contract

Samples: Secured Convertible Promissory Note (Brownie's Marine Group, Inc)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this ~~Note~~Debenture, and a Holder shall not have the right to convert any portion of this ~~Note~~Debenture, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this ~~Note~~ Debenture beneficially owned by the Holder or any of its Affiliates or Attribution ~~Parties,~~ Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes~~ Debentures or the ~~Warrants~~Preferred Stock) beneficially owned by the Holder or any of its Affiliates or Attribution ~~Parties.~~ Parties .. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this ~~Note~~ Debenture is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution ~~Parties~~Parties ) and of which principal amount of this ~~Note~~ Debenture is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Debenture may be converted (in relation to other securities owned by the Holder together with any Affiliates or Attribution Parties ) and which principal amount of this Debenture is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated ~~thereunder~~thereunder .. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 ~~Note~~Debenture, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture held by the Holder. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this ~~Note~~ Debenture held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note.~~Debenture ..

Appears in 1 contract

Samples: Convertible Security Agreement (Soupman, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates or Attribution ~~Parties,~~ Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. , it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates or Attribution Parties) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ three (3) Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 1 contract

Samples: Collateral Agency and Intercreditor Agreement (Property Solutions Acquisition Corp.)

Holder’s Conversion Limitations. The Company shall not affect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Conversion Notice, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~Notes) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(e) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Conversion Notice shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Conversion Notice that such Conversion Notice has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(e), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the SEC, if any, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one Trading Day~~ two Business Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase ~~or decrease~~ the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(e) ~~vi, 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~~ solely with respect to the ~~issuance of shares of Common Stock upon conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 7(c) vi shall continue to apply~~Holder’s Note. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Holder may also decrease the Beneficial Ownership Limitation provisions of this Section 4(e) solely with respect to the Holder’s Note at any time, which decrease shall be effective immediately upon delivery of notice to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(e) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 1 contract

Samples: Convertible Security Agreement (Unusual Machines, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this ~~Note~~Debenture, and a Holder shall not have the right to convert any portion of this ~~Note~~Debenture, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this ~~Note~~ Debenture beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, ~~any other Notes or~~ the ~~Warrants~~Warrant) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent ~~that~~ the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this ~~Note~~ Debenture is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this ~~Note~~ Debenture is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Debenture may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Debenture is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated ~~thereunder~~thereunder .. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 ~~Note~~Debenture, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this ~~Note~~ Debenture held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note.~~Debenture ..

Appears in 1 contract

Samples: Convertible Security Agreement (Dethrone Royalty Holdings, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of principal and/or interest of this Note, and a Holder shall not have the right to convert any ~~portion~~ principal and/or interest of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~Notes) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure {00757963.DOCX;3 } compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated ~~thereunder~~thereunder .. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(e), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(e) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note.~~Note ..

Appears in 1 contract

Samples: Convertible Security Agreement (Force Protection Video Equipment Corp.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this ~~Note~~Debenture, and a Holder shall not have the right to convert any portion of this ~~Note~~Debenture, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this ~~Note~~ Debenture beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes~~ Debentures or the Warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this ~~Note~~ Debenture is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this ~~Note~~ Debenture is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Debenture may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Debenture is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated ~~thereunder~~thereunder .. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 ~~Note~~Debenture, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), 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 conversion of this ~~Note~~ Debenture held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note.~~Debenture ..

Appears in 1 contract

Samples: Convertible Security Agreement (Jayhawk Energy, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of principal and/or interest of this Note, and a Holder shall not have the right to convert any ~~portion~~ principal and/or interest of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~Notes) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(e) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(e), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(e), provided that the Beneficial Ownership Limitation in no event exceeds ~~9.99~~19.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(e) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(e) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 1 contract

Samples: Subordinated Convertible Promissory Note (AMEDICA Corp)

Holder’s Conversion Limitations. ~~The Company~~ Borrower shall not affect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of ~~shares of Common Stock~~ Ordinary Shares beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of ~~shares of Common Stock~~ Ordinary Shares issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of ~~shares of Common Stock~~ Ordinary Shares which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of ~~the Company~~ Borrower subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to Borrower each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and Borrower shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding Ordinary Shares, the Holder may rely on the number of outstanding Ordinary Shares as stated in the most recent of the following: (i) Borrower’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by Borrower, or (iii) a more recent written notice by Borrower or Borrower’s transfer agent setting forth the number of Ordinary Shares outstanding. Upon the written or oral request of a Holder, ~~the Company~~ Borrower shall within ~~one~~ two Trading ~~Day~~ Days confirm orally and in writing to the Holder the number of ~~shares of Common Stock~~ Ordinary Shares then outstanding. In any case, the number of outstanding ~~shares of Common Stock~~ Ordinary Shares shall be determined after giving effect to the conversion or exercise of securities of ~~the Company~~Borrower, including this Note, by the Holder or its Affiliates since the date as of which such number of outstanding ~~shares of Common Stock~~ Ordinary Shares was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the number of shares of the ~~Common Stock~~ Ordinary Shares outstanding immediately after giving effect to the issuance of ~~shares of Common Stock~~ Ordinary Shares issuable upon conversion of this Note held by the Holder. The Holder may decrease the Beneficial Ownership Limitation at any time and the Holder, upon not less than 61 days’ prior notice to ~~the Company~~Borrower, may increase ~~or decrease~~ the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the ~~Common Stock~~ Ordinary Shares outstanding immediately after giving effect to the issuance of ~~shares of Common Stock~~ Ordinary Shares upon conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ will not be effective until the 61st day after such notice is delivered to ~~the Company~~Borrower. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 1 contract

Samples: Securities Purchase Agreement (PV Nano Cell, Ltd.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s 's Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder~~’s Affiliates (such Persons, “Attribution Parties”)~~'s Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(e) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder's determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(e), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company's most recent periodic or annual report filed with the SEC, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company's transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days' prior notice to the Company, may increase ~~or decrease~~ the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(e) visolely with respect to the Holder's Note, 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 conversion of this Note held by the Holder and the ~~Beneficial Ownership Limitation~~ provisions of this Section ~~7(c~~4(e) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Holder may also decrease the Beneficial Ownership Limitation provisions of this Section 4(e) solely with respect to the Holder's Note at any time, which decrease shall be effectively immediately upon delivery of notice to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(e) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 1 contract

Samples: Convertible Security Agreement (Esports Entertainment Group, Inc.)

Holder’s Conversion Limitations. The Company shall not affect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the conversion, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon: (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates or Attribution Parties, and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes or the Warrants~~Notes) beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(c)(vii), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(c)(vii) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder. 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 rules and regulations promulgated thereunder. For purposes of this Section 4(c)(vii), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company, or (C) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(c)(vii), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(c)(vii) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(c)(vii) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 1 contract

Samples: Convertible Security Agreement (Bruush Oral Care Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ issue any ~~conversion of this Note~~Warrant Securities, and a the Holder shall not have the right to ~~convert~~ purchase any ~~portion of this Note~~Warrant Securities hereunder, to the extent that after giving effect to ~~the conversion~~such issuance, the Holder (together with the Holder’s ~~Affiliates~~affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons~~affiliates, the “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of determining the Beneficial Ownership Limitation for the foregoing sentence, the number of shares of ~~Common Stock~~ Underlying Securities beneficially owned by the Holder and its ~~Affiliates and~~ Attribution Parties shall include the number of ~~shares of Common Stock~~ Warrant Securities issuable upon ~~conversion~~ exercise of this ~~Note~~ Warrant with respect to which such determination is being made, but shall exclude the number of ~~shares of Common Stock which are~~ Underlying Securities issuable ~~upon:~~ upon (i) ~~conversion~~ exercise of the ~~remaining, unconverted principal amount~~ unexercised portion of this ~~Note beneficially owned by the Holder or any of its Affiliates or Attribution Parties,~~ Warrant and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (~~including, without limitation,~~ including any ~~other~~ Notes or ~~the Warrants~~other warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~7(f), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~7(f) ~~vi.~~ applies, the determination of whether this ~~Note~~ Warrant is ~~convertible~~ exercisable (in relation to other securities owned by the Holder together with any ~~Affiliates and~~ Attribution Parties) and of which ~~principal amount~~ portion of this ~~Note~~ Warrant is ~~convertible~~ exercisable shall be in the sole discretion of the Holder, and the attempt by the Holder to exercise this Warrant shall be deemed to be the Holder’s determination of whether this Warrant may be exercised (in relation to other securities owned by the Holder together with any Attribution Parties) and which portion of this Warrant may be exercised, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers an Exercise Notice that such Exercise Notice has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 7(f), in determining the number of outstanding shares of Underlying Securities, the Holder may rely on the number of outstanding shares of Underlying Securities as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the SEC, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Underlying Securities outstanding. Upon the written or oral request of a the Holder, the Company shall within ~~one~~ two (2) Trading ~~Day~~ Days confirm orally and in writing to the Holder the number of shares of ~~Common Stock~~ Underlying Securities then outstanding. In any case, the number of outstanding shares of ~~Common Stock~~ Underlying Securities shall be determined after giving effect to the conversion or exercise of securities of the Company, including this ~~Note~~Warrant, by the Holder or its ~~Affiliates~~ Attribution Parties since the date as of which such number of outstanding shares of ~~Common Stock~~ Underlying Securities was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the number of shares of the ~~Common Stock~~ Underlying Securities outstanding immediately after giving effect to the issuance of ~~shares of Common Stock issuable upon conversion of this Note~~ all Underlying Securities to be held by the Holder. The Holder, upon not less than sixty-one (61) days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~7(f); provided, ~~provided~~ that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the ~~Common Stock~~ Underlying Securities outstanding immediately after giving effect to the issuance of shares of ~~Common Stock~~ Underlying Securities upon ~~conversion~~ exercise of this ~~Note~~ Warrant held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~7(f) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~7(f) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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~~ Holder of this ~~Note~~Warrant.

Appears in 1 contract

Samples: Warrant Agreement (ReShape Lifesciences Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this ~~Note~~Debenture, and a Holder shall not have the right to convert any portion of this ~~Note~~Debenture, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this ~~Note~~ Debenture beneficially owned by the Holder or any of its Affiliates or Attribution ~~Parties,~~ Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes~~ Debentures or the Warrants) beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this ~~Note~~ Debenture is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which principal amount of this ~~Note~~ Debenture is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Debenture may be converted (in relation to other securities owned by the Holder together with any Affiliates or Attribution Parties) and which principal amount of this Debenture is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a 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 ~~Note~~Debenture, 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 ~~4.99~~19.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture held by the Holder. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 7(c) vi, 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 7(c) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 ~~Note~~Debenture.

Appears in 1 contract

Samples: Senior Secured Convertible Debt Agreement (Legacy Education Alliance, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of principal or interest of this Note, and a Holder shall not have the right to convert any ~~portion~~ principal or interest of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates~~ Affiliates) (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties or Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates or Attribution ~~Parties,~~ Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other ~~securities~~ Securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (~~including, without limitation,~~ including any other ~~Notes or the Warrants~~Notes) beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other ~~securities~~ Securities owned by the Holder together with any Affiliates ~~and~~ or Attribution Parties) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other Securities owned by the Holder together with any Affiliates or Attribution Parties) and which principal amount EXECUTION COPY of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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~~ Securities of the Company, including this Note, 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 ~~4.99~~9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder may increase the Beneficial Ownership Limitation at any time and the Holder, upon not less than 61 days prior notice to the ~~Company,~~ Company may increase ~~or decrease~~ the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d); provided, ~~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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company. Provided, further, to the extent that the Holder’s right to participate in any such conversion right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such conversion right to such extent (or beneficial ownership of such shares of Common Stock as a result of such conversion right to such extent) and such conversion right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation). The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 1 contract

Samples: Securities Purchase Agreement (Bergio International, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this ~~Note~~Debenture, and a Holder shall not have the right to convert any portion of this ~~Note~~Debenture, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this ~~Note~~ Debenture beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes~~ Debenture or the Warrants) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~7(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~7(d) ~~vi.~~ applies, the determination of whether this ~~Note~~ Debenture is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this ~~Note~~ Debenture is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Debenture may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Debenture is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 7(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 7(c) vi, 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 7(c) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 7(c) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.then

Appears in 1 contract

Samples: Amendment Agreement (Cord Blood America, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this Promissory Note, and ~~a Holder~~ the Lender shall not have the right to convert any portion of this Promissory Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the ~~Holder~~ Lender (together with the ~~Holder~~Lender’s Affiliates, and any other Persons acting as a group together with the ~~Holder~~ Lender or any of the ~~Holder~~Lender’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of ~~shares of~~ Common ~~Stock~~ Shares beneficially owned by the ~~Holder~~ Lender and its Affiliates and Attribution Parties shall include the number of ~~shares of~~ Common ~~Stock~~ Shares issuable upon conversion of this Promissory Note with respect to which such determination is being made, but shall exclude the number of ~~shares of~~ Common ~~Stock~~ Shares which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Promissory Note beneficially owned by the ~~Holder~~ Lender or any of its Affiliates or Attribution ~~Parties,~~ Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the ~~Holder~~ Lender or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~2.4, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c) vi.~~ 2.4 applies, the determination of whether this Promissory Note is convertible (in relation to other securities owned by the ~~Holder~~ Lender together with any Affiliates and Attribution Parties) and of which principal amount of this Promissory Note is convertible shall be in the sole discretion of the ~~Holder~~Lender, and the submission of a Notice of Conversion shall be deemed to be the Lender’s determination of whether this Promissory Note may be converted (in relation to other securities owned by the Lender together with any Affiliates or Attribution Parties) and which principal amount of this Promissory Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Lender will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 2.4, in determining the number of outstanding Common Shares, the Lender may rely on the number of outstanding Common Shares as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of Common Shares outstanding. Upon the written or oral request of ~~a Holder~~the Lender, the Company shall within one Trading Day confirm orally and in writing to the ~~Holder~~ Lender the number of ~~shares of~~ Common ~~Stock~~ Shares then outstanding. In any case, the number of outstanding ~~shares of~~ Common ~~Stock~~ Shares shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Promissory Note, by the ~~Holder~~ Lender or its Affiliates since the date as of which such number of outstanding ~~shares of~~ Common ~~Stock~~ Shares was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the number of ~~shares of the~~ Common ~~Stock~~ Shares outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Promissory Note held by the ~~Holder~~Lender. The ~~Holder~~Lender, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~2.4, provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of ~~shares of the~~ Common ~~Stock~~ Shares outstanding immediately after giving effect to the issuance of ~~shares of~~ Common ~~Stock~~ Shares upon conversion of this Promissory Note held by the ~~Holder~~ Lender and the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~ 2.4 shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c) vi~~ 2.4 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Promissory Note.

Appears in 1 contract

Samples: Convertible Secured Promissory Note Purchase Agreement (First Person Ltd.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of this ~~Note~~Debenture, and a Holder shall not have the right to convert any portion of this ~~Note~~Debenture, pursuant to Section 5 or otherwise, to the extent that after giving effect to such issuance after conversion as set forth on the ~~conversion~~applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (~~Affiliates, such other Persons, “Attribution Parties”)) ), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the ~~Holder and~~ Holder, its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of this ~~Note~~ Debenture with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which ~~are~~ would be issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted ~~principal amount~~ portion of this ~~Note~~ Debenture beneficially owned by the Holder or any of its Affiliates or Attribution ~~Parties,~~ Parties and (ii) exercise or conversion of the unexercised or ~~unconverted~~ nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein ~~(including, without limitation, any other Notes or the Warrants)~~ beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~10(m), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder~~. To the extent that the limitation contained in this Section 7(c) vi. applies~~, ~~the determination of whether this Note is convertible (in relation to other securities owned~~ it being acknowledged by the Holder ~~together~~ that the Company is not representing to the Holder that such calculation is in compliance with ~~any Affiliates and Attribution Parties~~Section 13(d) ~~and of which principal amount of this Note is convertible shall be in the sole discretion~~ of the ~~Holder~~Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. 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 rules and regulations promulgated thereunder. For purposes of this Section 10(m), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days confirm orally ~~and~~ or 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 ~~Note~~Debenture, by the Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this ~~Note held by the Holder~~Debenture. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c~~10(m) vi, 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 conversion of this Note held by the Holder and the ~~Beneficial Ownership Limitation~~ provisions of this Section ~~7(c~~10(m) vi shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The ~~Beneficial Ownership Limitation~~ provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~10(m) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained ~~herein~~ 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 ~~Note~~Debenture. 2. A Section 2e) is hereby added to each Warrant, to read as follows:

Appears in 1 contract

Samples: 10% Secured Convertible Debenture and Warrants (Amergent Hospitality Group, Inc)

Holder’s Conversion Limitations. The Company shall not affect any conversion of principal or interest of this Note, and a Holder shall not have the right to convert any ~~portion~~ principal or interest of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates~~ Affiliates) (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties or Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates or Attribution ~~Parties,~~ Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other ~~securities~~ Securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (~~including, without limitation,~~ including any other ~~Notes or the Warrants~~Notes) beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other ~~securities~~ Securities owned by the Holder together with any Affiliates ~~and~~ or Attribution Parties) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other Securities owned by the Holder together with any Affiliates or Attribution Parties) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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~~ Securities of the Company, including this Note, 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 ~~4.99~~9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder may increase the Beneficial Ownership Limitation at any time and the Holder, upon not less than 61 days prior notice to the ~~Company,~~ Company may increase ~~or decrease~~ the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(d); provided, ~~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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(d) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company. Provided, further, to the extent that the Holder’s right to participate in any such conversion right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such conversion right to such extent (or beneficial ownership of such shares of Common Stock as a result of such conversion right to such extent) and such conversion right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation). The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note. For the avoidance of doubt, in the event that any Note conversion will violate the Beneficial Ownership Limitation (the “Trigger Date”) , then the Holder, at its option and in addition to any other rights it has hereunder, may: (i) require the Company issue the Holder an additional right to acquire a warrant (the “New Warrant”) exercisable into 9.99% of the shares of Common Stock issuable upon exercise of all outstanding securities on the applicable Trigger Date (the “New Warrant Shares”). The New Warrant shall be of like tenor to the outstanding Warrants, mutatis mutandis, and an exercise price equal to the lowest price per share for which one share of Common Stock is at any time, directly or indirectly, issuable pursuant to any such outstanding Warrant. The New Warrant shall be exercisable into 9.99% of the shares of Common Stock issuable upon exercise of all outstanding Warrants as of Trigger Date; and (ii) negotiate in good faith with the Company in order to consider other approaches, such as putting the shares to be converted that are in excess of the Beneficial Ownership Limitation in a trust to be accessed by the Holder if, as, and when the Conversion Shares so held may be converted in accordance with the provisions of this Section 4(d).

Appears in 1 contract

Samples: Convertible Security Agreement (Fresh Vine Wine, Inc.)

Holder’s Conversion Limitations. The Company shall not ~~affect~~ effect any conversion of principal and/or interest of this Note, and a Holder shall not have the right to convert any ~~portion~~ principal and/or interest of this Note, to the extent that after giving effect to the ~~conversion~~conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any ~~other~~ Persons acting as a group together with the Holder or any of the Holder’s ~~Affiliates (such Persons, “Attribution Parties”)~~Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates ~~and Attribution Parties~~ shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable ~~upon:~~ upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates ~~or Attribution Parties,~~ and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other ~~Notes~~ promissory notes or the ~~Warrants~~warrants as further defined in the securities purchase agreement dated March 9, 2016) beneficially owned by the Holder or any of its ~~Affiliates or Attribution Parties~~Affiliates. Except as set forth in the preceding sentence, for purposes of this Section ~~7(c) vi~~4(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section ~~7(c~~4(d) ~~vi.~~ applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any ~~Affiliates and Attribution Parties~~Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation 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 rules and regulations promulgated thereunder. For purposes of this Section 4(e), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days 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 Note, 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 ~~4.99~~9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section ~~7(c) vi~~4(e), 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 conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section ~~7(c~~4(e) vi shall continue to apply. Any such increase ~~in the Beneficial Ownership Limitation~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~7(c~~4(d) vi to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.

Appears in 1 contract

Samples: Securities Purchase Agreement (Lifelogger Technologies Corp)

Common use of Holder’s Conversion Limitations Clause in Contracts