Common use of Ownership Cap and Exercise Restriction Clause in Contracts

Ownership Cap and Exercise Restriction. The Issuer shall not effect any exercise of this Warrant, and a Holder shall not have the right to convert any portion of this Warrant, to the extent that, after giving effect to the conversion set forth on the applicable Notice of Exercise, such Holder would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of this Section 7, 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 applies, the determination of whether the Warrant is exercisable and of how many shares of Warrant are exercised shall be in the sole discretion of such Holder, and the submission of a Notice of Exercise shall be deemed to be such Holder’s determination of whether the shares of this Warrant may be exercised and how many shares of the Warrant are exercisable, in each case subject to such aggregate percentage limitations. To ensure compliance with this restriction, each Holder will be deemed to represent to the Issuer each time it delivers a Notice of Exercise that such Notice of Exercise has not violated the restrictions set forth in this paragraph. 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, in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (A) the Issuer’s most recent Form 10-QSB or Form 10-KSB, as the case may be, (B) a more recent public announcement by the Issuer or (C) a more recent notice by the Issuer or the Issuer’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Issuer shall within two (2) Trading Days confirm orally and in writing to 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 Issuer by such Holder 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 Warrant held by the applicable Holder. The Beneficial Ownership Limitation provisions of this Section 7 may be waived by a Holder, at the election of such Holder, upon not less than 61 days’ prior notice to the Issuer. 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 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of Warrant.

Ownership Cap and Exercise Restriction. The Issuer shall not effect any exercise of this Warrant, and a Holder shall not have the right to convert exercise any portion of this Warrant, to the extent that, after giving effect to the conversion exercise set forth on the applicable Notice of Exercise, such Holder would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of this Section 7, 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 applies, the determination of whether the Warrant is exercisable and of how many shares of Warrant are exercised shall be in the sole discretion of such Holder, and the submission of a Notice of Exercise shall be deemed to be such Holder’s determination of whether the shares of this Warrant may be exercised and how many shares of the Warrant are exercisable, in each case subject to such aggregate percentage limitations. To ensure compliance with this restriction, each Holder will be deemed to represent to the Issuer each time it delivers a Notice of Exercise that such Notice of Exercise has not violated the restrictions set forth in this paragraph. 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, in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (A) the Issuer’s most recent Form 10-QSB or Form 10-KSB, as the case may be, (B) a more recent public announcement by the Issuer or (C) a more recent notice by the Issuer or the Issuer’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Issuer shall within two (2) Trading Days confirm orally and in writing to 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 Issuer by such Holder 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 Warrant held by the applicable Holder. The Beneficial Ownership Limitation provisions of this Section 7 may be waived by a Holder, at the election of such Holder, upon not less than 61 days’ prior notice to the IssuerIssuer (“Limitation Notice”); provided however, that if less than 61 days remains on the Warrant’s Term, the Beneficial Ownership Limitation provisions of this Section 7 shall remain in full force and effect until such time as the Holder submits a Limitation Notice to the Company, which such Limitation Notice may be provided at any time during such period and which shall be effective as of the date of such Limitation Notice for such number of shares as specified therein. 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 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of Warrant.