Common use of Limitation on Number of Shares Clause in Contracts

Limitation on Number of Shares. (i) Notwithstanding anything to the contrary contained herein, the number of Anti-Dilution Shares and MDP Shares that may be acquired by any Investor shall not exceed a number that, when added to the total number of shares of Common Stock deemed beneficially owned by such Investor (other than by virtue of the ownership of securities or rights to acquire securities (including this Section 7.1) that have limitations on the Investor's right to convert, exercise or purchase similar to the limitation set forth herein), together with all shares of Common Stock deemed beneficially owned (other than by virtue of the ownership of securities or rights to acquire securities that have limitations on the right to convert, exercise or purchase similar to the limitation set forth herein) by the holder's "affiliates" (as defined in Rule 144) ("Aggregation Parties") that would be aggregated for purposes of determining whether a group under Section 13(d) of the Securities Exchange Act of 1934 as amended, exists, would exceed 9.99% of the total issued and outstanding shares of the Common Stock (the "Restricted Ownership Percentage"). Each holder shall have the right (w) at any time and from time to time to reduce its Restricted Ownership Percentage immediately upon notice to the Company and (x) (subject to waiver) at any time and from time to time, to increase its Restricted Ownership Percentage immediately in the event of the announcement as pending or planned, of a change of control transaction (including without limitation a transaction that would result in a transfer of more than 50% of the Company's voting power or equity, or a transaction that would result in a person or "group" being deemed the beneficial owner of 50% or more of the Company's voting power or equity). (ii) Each Investor covenants at all times on each day (each such day being referred to as a "Covenant Day") as follows: During the balance of such Covenant Day and the succeeding sixty-one (61) days (the balance of such Covenant Day and the succeeding 61 days being referred to as the "Covenant Period") such Investor will not acquire shares of Common Stock pursuant to any right (including pursuant to this Section 7.1) existing at the commencement of the Covenant Period to the extent the number of shares so acquired by such Investor and its Aggregation Parties (ignoring all dispositions) would exceed: (x) the Restricted Ownership Percentage of the total number of shares of Common Stock outstanding at the commencement of the Covenant Period, minus (y) the number of shares of Common Stock actually owned by such Investor and its Aggregation Parties at the commencement of the Covenant Period. A new and independent covenant will be deemed to be given by the Investor as of each moment of each Covenant Day. No covenant will terminate, diminish or modify any other covenant. The Investor agrees to comply with each such covenant. This Section 7.1(d)(ii) controls in the case of any conflict with any other provision of this Agreement or any agreement entered into in connection herewith.

Limitation on Number of Shares. (i) Notwithstanding anything herein to the contrary contained hereincontrary, except as provided otherwise in this Section 4.16, the number of Anti-Dilution Shares and MDP Additional Shares that may be acquired by issued to any Investor Purchaser under this Section 4.16 shall not exceed a number be limited to the extent necessary to insure that, when added to following such issuance, the total number of shares of Common Stock deemed then beneficially owned by such Investor (Purchaser and its Affiliates and any other than by virtue of the persons or entities whose beneficial ownership of securities or rights to acquire securities (including this Section 7.1) that have limitations on the Investor's right to convert, exercise or purchase similar to the limitation set forth herein), together with all shares of Common Stock deemed would be aggregated with such Purchaser’s for purposes of Section 13(d) of the Exchange Act (including shares held by any “group” of which the holder is a member, but excluding shares beneficially owned (other than by virtue of the ownership of securities or rights to acquire securities that have limitations on the right to convert, exercise or purchase similar to the limitation set forth herein) by the holder's "affiliates" (as defined in Rule 144) ("Aggregation Parties") that would be aggregated for purposes of determining whether a group under Section 13(d) of the Securities Exchange Act of 1934 as amended, exists, would exceed 9.99% of the total issued and outstanding shares of the Common Stock (the "Restricted Ownership Percentage"). Each holder shall have the right (w) at any time and from time to time to reduce its Restricted Ownership Percentage immediately upon notice to the Company and (x) (subject to waiver) at any time and from time to time, to increase its Restricted Ownership Percentage immediately in the event of the announcement as pending or planned, of a change of control transaction herein (including without limitation a transaction that would result in a transfer of more than 50the Warrants)), does not exceed 9.9% of the Company's voting power or equity, or a transaction that would result in a person or "group" being deemed the beneficial owner of 50% or more of the Company's voting power or equity). (ii) Each Investor covenants at all times on each day (each such day being referred to as a "Covenant Day") as follows: During the balance of such Covenant Day and the succeeding sixty-one (61) days (the balance of such Covenant Day and the succeeding 61 days being referred to as the "Covenant Period") such Investor will not acquire shares of Common Stock pursuant to any right (including pursuant to this Section 7.1) existing at the commencement of the Covenant Period to the extent the number of shares so acquired by such Investor and its Aggregation Parties (ignoring all dispositions) would exceed: (x) the Restricted Ownership Percentage of the total number of shares of Common Stock outstanding at the commencement of the Covenant PeriodCompany then issued and outstanding (the “Beneficial Ownership Limitation”). For purposes hereof, minus (y“group” has the meaning set forth in Section 13(d) of the Exchange Act and applicable regulations of the Securities and Exchange Commission, and the percentage held by the holder shall be determined in a manner consistent with the provisions of Section 13(d) of the Exchange Act. If by way of any adjustment required by this Section 4.16 any Purchaser would otherwise be entitled to receive a number of shares of Common Stock actually owned such that the total number of such shares held by such Investor and its Aggregation Parties at the commencement Purchaser as of the Covenant Period. A new and independent covenant will be deemed date of such adjustment would equal or exceed the Beneficial Ownership Limitation, then the Company shall not issue Additional Shares as required by this Section 4.16 only to the extent necessary to avoid causing the aforesaid limitation to be given exceeded. With respect to such Additional Shares which may not be issued to such Purchaser on the Delivery Date due to the limitation contained in this paragraph (“Excess Shares”), the Delivery Date for such Excess Shares, or any portion thereof from time to time as specified by such Purchaser, shall be extended to such date which is ten (10) days following delivery of written notice to the Investor Company from such Purchaser stating that the Excess Shares (or such portion thereof), are no longer subject to the limitation contained in this paragraph since such Excess Shares (or portion thereof) may be issued without violating the Beneficial Ownership Limitation. (ii) In the event that the Company would be obligated to issue an amount of Additional Shares and Additional Warrants which, when aggregated with all Shares and Warrants issued, would constitute a breach of the Company’s obligations under the rules or regulations of the Company’s Trading Market as of each moment of each Covenant Day. No covenant will terminatethey apply to the Company, diminish or modify any other covenantprincipal securities exchange or market upon which the Common Stock is or becomes traded (the “Cap Regulations”), the Company shall not be obligated to issue any such Additional Shares or Additional Warrants. The Investor agrees to comply with each such covenant. This Section 7.1(d)(ii) controls in Instead, the case of any conflict with any other provision Company shall immediately seek shareholder approval of this Agreement transaction (with voting in accordance with the Cap Regulations and other applicable law) if such approval would, under the Cap Regulations, permit the Company to issue such Additional Shares and Additional Warrants without violation of the Cap Regulations. If such shareholder approval will not afford a cure of the breach of the Cap Regulations, or any agreement entered into in connection herewithif such shareholder approval is not obtained within eighty (80) days, then the Company shall promptly pay cash to each Purchaser cash equal to such Purchaser’s Adjustment Amount which cannot be satisfied with Additional Shares and Additional Warrants.

Limitation on Number of Shares. (i) Notwithstanding anything to the contrary contained herein, the number of Anti-Dilution Shares and MDP Shares shares of Common Stock that may be acquired by any Investor pursuant to this Section 7.1 shall not exceed a number that, when added to the total number of shares of Common Stock deemed beneficially owned by such Investor (other than by virtue of the ownership of securities or rights to acquire securities (including this Section 7.1) that have limitations on the Investor's right to convert, exercise or purchase similar to the limitation set forth herein), together with all shares of Common Stock deemed beneficially owned (other than by virtue of the ownership of securities or rights to acquire securities that have limitations on the right to convert, exercise or purchase similar to the limitation set forth herein) by the holder's "affiliatesAFFILIATES" (as defined in Rule 144144 of the Act) ("Aggregation PartiesAGGREGATION PARTIES") that would be aggregated for purposes of determining whether a group under Section 13(d) of the Securities Exchange Act of 1934 as amended, exists, would exceed 9.999.9% of the total issued and outstanding shares of the Common Stock (the "Restricted Ownership PercentageRESTRICTED OWNERSHIP PERCENTAGE"). Each holder shall have the right (w) at any time and from time to time to reduce its Restricted Ownership Percentage immediately upon notice to the Company Corporation and (x) (subject to waiver) at any time and from time to time, to increase its Restricted Ownership Percentage immediately in the event of the announcement as pending or planned, of a change of control transaction (including without limitation a transaction that would result in a transfer of more than 50% of the Company's voting power or equity, or a transaction that would result in a person or "group" being deemed the beneficial owner of 50% or more of the Company's voting power or equity). (ii) Each Investor covenants at all times on each day (each such day being referred to as a "Covenant Day") as follows: During the balance of such Covenant Day and the succeeding sixty-one (61) days (the balance of such Covenant Day and the succeeding 61 days being referred to as the "Covenant Period") such Investor will not acquire shares of Common Stock pursuant to any right (including pursuant to this Section 7.1) existing at the commencement of the Covenant Period to the extent the number of shares so acquired by such Investor and its Aggregation Parties (ignoring all dispositions) would exceed: (x) the Restricted Ownership Percentage of the total number of shares of Common Stock outstanding at the commencement of the Covenant Period, minus (y) the number of shares of Common Stock actually owned by such Investor and its Aggregation Parties at the commencement of the Covenant Period. A new and independent covenant will be deemed to be given by the Investor as of each moment of each Covenant Day. No covenant will terminate, diminish or modify any other covenant. The Investor agrees to comply with each such covenant. This Section 7.1(d)(ii) controls in the case of any conflict with any other provision of this Agreement or any agreement entered into in connection herewith.

Limitation on Number of Shares. (i) Notwithstanding anything to the contrary contained hereinIf by way of any adjustment required by this Section 7.1, the number of Anti-Dilution Shares and MDP Shares that may be acquired by any Investor shall not exceed would receive a number that, when added to the total number of shares of Common Stock deemed beneficially owned by such Investor (other than by virtue that the total number of the ownership of securities or rights to acquire securities (including this Section 7.1) that have limitations on the Investor's right to convert, exercise or purchase similar to the limitation set forth herein), together with all such shares of Common Stock deemed beneficially owned (other than by virtue within the meaning of the ownership of securities or rights to acquire securities that have limitations on the right to convert, exercise or purchase similar to the limitation set forth herein) by the holder's "affiliates" (as defined in Rule 144) ("Aggregation Parties") that would be aggregated for purposes of determining whether a group under Section 13(d) of the Securities Exchange Act 0000 Xxx) by the Investor as of 1934 as amended, exists, the date of such adjustment would exceed 9.99be greater than 9.90% but less than 13.0% of the total issued and outstanding shares of the Common Stock (the "Restricted Ownership Percentage"). Each holder shall have the right (w) at any time and from time to time to reduce its Restricted Ownership Percentage immediately upon notice to the Company and (x) (subject to waiver) at any time and from time to time, to increase its Restricted Ownership Percentage immediately in the event of the announcement as pending or planned, of a change of control transaction (including without limitation a transaction that would result in a transfer of more than 50% of the Company's voting power or equity, or a transaction that then the Company shall not effect the adjustment required by this Section to the extent necessary to avoid causing the aforesaid limitation to be exceeded until 120 days following the date such adjustment would result in a person or "group" being deemed the beneficial owner of 50% or more of the Company's voting power or equity)have otherwise been made. (ii) Each Investor covenants at all times on each day (each such day being referred to as a "Covenant Day") as follows: During the balance If by way of such Covenant Day and the succeeding sixty-one (61) days (the balance of such Covenant Day and the succeeding 61 days being referred to as the "Covenant Period") such Investor will not acquire shares of Common Stock pursuant to any right (including pursuant to adjustment required by this Section 7.1) existing at , the commencement of the Covenant Period to the extent the number of shares so acquired by such Investor and its Aggregation Parties (ignoring all dispositions) would exceed: (x) the Restricted Ownership Percentage of the total receive a number of shares of Common Stock outstanding at such that the commencement of the Covenant Period, minus (y) the total number of such shares of Common Stock actually owned by such Investor and its Aggregation Parties at the commencement of the Covenant Period. A new and independent covenant will be deemed to be given held by the Investor as of each moment the date of each Covenant Daysuch adjustment would equal or exceed 13.0% of the total outstanding Common Stock of the Company, then the Company shall not effect the adjustment required by this Section to the extent necessary to avoid causing the aforesaid limitation to be exceeded until 180 days following the date such adjustment would have otherwise been made. (iii) In no event shall the Company issue to an Investor additional shares pursuant to an adjustment required by this Section 7.1 such that the total number of shares issued to such Investor (when added to the Warrant Shares actually received upon exercise of Warrants by such Investor) would exceed such Investor's "pro rata" share of 2,861,361 shares of Common Stock (the "allocation") (subject to appropriate adjustment for stock splits or stock dividends). No covenant will terminateInstead, diminish or modify the Company shall redeem excess shares at 110% of the Per Share Purchase Price, as adjusted. At such time as an Investor owns neither any Shares that were originally acquired pursuant to this Agreement nor any Warrants, it shall notify the Company, who then shall notify the other covenantInvestors. The Investor agrees At such time, to comply with each the extent such covenantInvestor's allocation has not been exhausted, it shall be divided, pro rata, among the remaining Investors. This Section 7.1(d)(ii) controls in An Investor's pro rata share shall be the case portion determined by dividing its aggregate Purchase Price by the total Purchase Price of any conflict with any other provision of all Investors holding shares at the time the pro rata share is being determined. Each Investor's initial allocation is listed on the signature page for such Investor. Only shares acquired pursuant to this Agreement or any agreement entered into upon exercise of Warrants will be included in connection herewithdetermining whether the limitations would be exceeded for purposes of this Section 7.1(d)(iii). (iv) The time periods in paragraphs (i) (120 days) and (ii) (180 days) above shall be extended one (1) day for each day, prior to the time that sales under Rule 144(k) would be permitted, that sales under the Registration Statement contemplated by the Registration Rights Agreement may not be made.

Limitation on Number of Shares. (i) Notwithstanding anything to the contrary contained hereinIf by way of any adjustment required by this Section 7.1, the number of Anti-Dilution Shares and MDP Shares that may be acquired by any Investor shall not exceed would receive a number that, when added to the total number of shares of Common Stock deemed beneficially owned by such Investor (other than by virtue that the total number of the ownership of securities or rights to acquire securities (including this Section 7.1) that have limitations on the Investor's right to convert, exercise or purchase similar to the limitation set forth herein), together with all such shares of Common Stock deemed beneficially owned (other than by virtue within the meaning of the ownership of securities or rights to acquire securities that have limitations on the right to convert, exercise or purchase similar to the limitation set forth herein) by the holder's "affiliates" (as defined in Rule 144) ("Aggregation Parties") that would be aggregated for purposes of determining whether a group under Section 13(d) of the Securities Exchange Act 0000 Xxx) by the Investor as of 1934 as amended, exists, the date of such adjustment would exceed 9.99be greater than 9.90% of the total issued and outstanding shares of the Common Stock (of the "Restricted Ownership Percentage")Company, then the Company shall not effect the adjustment required by this Section to the extent necessary to avoid causing the aforesaid limitation to be exceeded and shall agree to effect such adjustment at the earliest possible time when such adjustment would not exceed the aforementioned limitations. Each holder shall have This limitation may not be amended except with the right (w) at any time and from time to time to reduce its Restricted Ownership Percentage immediately upon notice to consent of the stockholders of the Company and (x) (subject to waiver) at any time and from time to time, to increase its Restricted Ownership Percentage immediately in the event they are intended third-party beneficiaries of the announcement as pending or planned, of a change of control transaction (including without limitation a transaction that would result in a transfer of more than 50% of the Company's voting power or equity, or a transaction that would result in a person or "group" being deemed the beneficial owner of 50% or more of the Company's voting power or equity)this provision. (ii) Each In no event shall the Company issue to an Investor covenants at all times on each day (each such day being referred to as a "Covenant Day") as follows: During the balance of such Covenant Day and the succeeding sixty-one (61) days (the balance of such Covenant Day and the succeeding 61 days being referred to as the "Covenant Period") such Investor will not acquire additional shares of Common Stock pursuant to any right (including pursuant to an adjustment required by this Section 7.1) existing at the commencement of the Covenant Period to the extent the number of shares so acquired by 7.1 such Investor and its Aggregation Parties (ignoring all dispositions) would exceed: (x) the Restricted Ownership Percentage of that the total number of shares issued to such Investor (when added to the Warrant Shares actually received upon exercise of Common Stock outstanding Warrants by such Investor) would exceed such Investor's "pro rata" share of the Shares acquired through this Purchase Agreement (the "allocation") (subject to appropriate adjustment for stock splits or stock dividends). Instead, the Company shall redeem excess shares at 110% of the Per Share Purchase Price, as adjusted. At such time as an Investor owns neither any Shares that were originally acquired pursuant to this Agreement nor any Warrants, it shall notify the Company, who shall then notify the other Investors. At such time, to the extent such Investor's allocation has not been exhausted, it shall be divided pro rata, among the remaining Investors. An Investor's pro rata share shall be the portion determined by dividing its aggregate Purchase Price by the total Purchase Price of all Investors holding shares at the commencement of time the Covenant Period, minus (y) pro rata share is being determined. Each Investor's initial allocation is listed on the number of shares of Common Stock actually owned by signature page for such Investor and its Aggregation Parties at the commencement of the Covenant PeriodInvestor. A new and independent covenant will be deemed Only Shares acquired pursuant to be given by the Investor as of each moment of each Covenant Day. No covenant will terminate, diminish or modify any other covenant. The Investor agrees to comply with each such covenant. This Section 7.1(d)(ii) controls in the case of any conflict with any other provision of this Agreement or any agreement entered into upon exercise of Warrants will be included in connection herewithdetermining whether the limitations would be exceeded for purposes of this Section 7.1(d)(iii).

Limitation on Number of Shares. (i) Notwithstanding Additionally, notwithstanding anything set forth in this Section 5 to the contrary contained hereincontrary, in no event shall any holder of Series C Preferred Stock, prior to earlier to occur of the number Mandatory Conversion Date or the date of Anti-Dilution Shares and MDP Shares that may the consummation or closing of a Fundamental Change, be acquired by any Investor shall not exceed a number that, when added entitled to convert Series C Preferred Stock into shares of Common Stock to the total extent that (x) the number of shares of the Corporation's Common Stock deemed beneficially owned by such Investor holder and its affiliates (other than by virtue of the ownership of securities or rights to acquire securities (including this Section 7.1) that have limitations on the Investor's right to convert, exercise or purchase similar to the limitation set forth herein), together with all shares of Common Stock which may be deemed beneficially owned (other than by virtue of through the ownership of securities or rights to acquire securities that have limitations on the right to convert, exercise or purchase similar to the limitation set forth herein) by the holder's "affiliates" (as defined in Rule 144) ("Aggregation Parties") that would be aggregated for purposes of determining whether a group under Section 13(d) unconverted portion of the Securities Exchange Act of 1934 as amended, exists, would exceed 9.99% of the total issued and outstanding shares of the Common Series C Preferred Stock (the "Restricted Ownership Percentage"). Each holder shall have the right (w) at any time and from time to time to reduce its Restricted Ownership Percentage immediately upon notice to the Company and (x) (subject to waiver) at any time and from time to time, to increase its Restricted Ownership Percentage immediately in the event of the announcement as pending or planned, of a change of control transaction (including without limitation a transaction that would result in a transfer of more than 50% of the Company's voting power or equity, or a transaction that would result in a person or "group" being deemed the beneficial owner of 50% or more of the Company's voting power or equity). (ii) Each Investor covenants at all times on each day (each such day being referred to as a "Covenant Day") as follows: During the balance of such Covenant Day and the succeeding sixty-one (61) days (the balance of such Covenant Day and the succeeding 61 days being referred to as the "Covenant Period") such Investor will not acquire shares of Common Stock pursuant to any right (including pursuant to this Section 7.1) existing at the commencement of the Covenant Period to the extent the number of shares so acquired held by such Investor and its Aggregation Parties (ignoring all dispositionsholder) would exceed: (x) the Restricted Ownership Percentage of the total number of shares of Common Stock outstanding at the commencement of the Covenant Period, minus plus (y) the number of shares of Common Stock actually owned issuable upon such conversion would result in beneficial ownership by such Investor the holder and its Aggregation Parties at the commencement affiliates of more than 4.9% of the Covenant Periodshares of Common Stock then outstanding. A new For purposes of this Section 5(d), beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and independent covenant Regulation 13D and 13G promulgated thereunder, except as otherwise provided in clause (x) of this Section 5(d). Each holder shall, upon delivering to the Corporation a notice of election to convert shares of Series C Preferred Stock in accordance with Section 5(i) hereof, be required to provide the Corporation with a certification in form and substance reasonably satisfactory to the Corporation, that the conversion of the Series C Preferred Stock being converted will be deemed not result in such holder and its affiliates beneficially holding more than 4.9%, determined as heretofore provided, of the outstanding shares of Common Stock on such Conversion Date. If the holder cannot make such certification, the shares of Series C Preferred Stock to be given by converted shall not be convertible. Notwithstanding the Investor foregoing, upon the Mandatory Conversion Date or upon the consummation or closing of a Fundamental Change, all such shares of Series C Preferred Stock then outstanding shall be converted into Common Stock in accordance with Section 5(c) or 5(g), as of each moment of each Covenant Day. No covenant will terminate, diminish or modify any other covenant. The Investor agrees to comply with each such covenant. This Section 7.1(d)(ii) controls in the case of any conflict with any other provision of this Agreement or any agreement entered into in connection herewithapplicable.