Common use of Reported Outstanding Share Number Clause in Contracts

Reported Outstanding Share Number. If the Company receives a Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this Section 1(e), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. For any reason at any time, upon the written request of the Holder, the Company shall within five (5) Trading Days confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and any other Attribution Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. Upon delivery of a written notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage to any other percentage (not in excess of 19.99% of the issued and outstanding shares of Common Stock immediately after giving effect to the issuance of the shares of Common Stock issuable upon exercise of this Warrant if exceeding that limit would result in a change of control under NYSE Listed Company Manual Section 312.03(c) or any successor rule) as specified in such notice; provided that (i) any such increase in the Maximum Percentage will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to the Holder and the other Attribution Parties and not to any other holder of Warrants that is not an Attribution Party of the Holder. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the 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 exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 1(e) to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 1(e) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Reported Outstanding Share Number. If the Company receives a an Notice of Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Notice of Exercise Notice would otherwise cause the such Holder’s beneficial ownershipor deemed ownership under clause (x) or clause (y) above, as determined pursuant to this Section 1(e)1.7, to exceed the Maximum Percentage, the such Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. For any reason at any time, upon the written request of the Holder, the Company shall within five (5) Trading Days confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. In any case, the number to be delivered pursuant to such Notice of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and any other Attribution Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess SharesExercise. Upon delivery of a written notice to the Company, the Holder may from time to time increase (with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease the Maximum Percentage of such Holder to any other percentage (not in excess of 19.999.99% of the issued and outstanding shares of Common Stock immediately after giving effect to the issuance of the shares of Common Stock issuable upon exercise of this Warrant if exceeding that limit would result in a change of control under NYSE Listed Company Manual Section 312.03(c) or any successor rule) as specified in such the notice; provided that (i) any such increase in the Maximum Percentage will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to the Holder and the other its Attribution Parties Parties, and not to any other holder of Warrants that is not an a warrant. As used herein, “Attribution Party Parties” means, collectively, the following Persons and entities: (i) any investment vehicle, including any funds, feeder funds or managed accounts, currently, or from time to time after the date hereof, directly or indirectly managed or advised by Xxxxxx’s investment manager or any of its affiliates or principals, (ii) any direct or indirect affiliates of Holder or any of the Holder. For purposes of clarityforegoing, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not (iii) any Person acting or who would be deemed to be beneficially owned by acting as a Section 13(d) group together with Xxxxxx and any of the Holder for foregoing and (iv) any purpose including other Persons whose beneficial ownership of the Common Stock would be aggregated with Holder’s and the other Attribution Parties for purposes of Section 13(d) or Rule 16a-1(a)(1) of the Exchange Act. No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 1(e) to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 1(e) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Reported Outstanding Share Number. If the Company receives a Exercise Conversion Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Conversion Notice would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this Section 1(e3(d), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares shares of Common Stock to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction SharesConversion Notice. For any reason at any time, upon the written or oral request of the Holder, the Company shall within five one (51) Trading Days Business Day confirm orally and in writing or by electronic mail 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 WarrantNote, by the Holder and any other Attribution Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of shares of Common Stock to the Holder upon exercise conversion of this Warrant Note results in the Holder and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. Upon delivery of a written notice to the Company, the Holder may from time to time increase (with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease the Maximum Percentage to any other percentage (not in excess of 19.999.99% of the issued and outstanding shares of Common Stock immediately after giving effect to the issuance of the shares of Common Stock issuable upon exercise of this Warrant if exceeding that limit would result in a change of control under NYSE Listed Company Manual Section 312.03(c) or any successor rule) as specified in such notice; provided that (i) any such increase in the Maximum Percentage will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to the Holder and the other Attribution Parties and not to any other holder of Warrants Notes that is not an Attribution Party of the Holder. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant Note in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the 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 exercise convert this Warrant Note pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisabilityconvertibility. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 1(e3(d) to the extent necessary to correct this paragraph (or any portion of this paragraph paragraph) which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 1(e3(d) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this WarrantNote. Further, notwithstanding anything in this Note to the contrary, under no circumstances shall the Company be obligated to issue or the Holder entitled to receive, an aggregate number of shares of Common Stock that would exceed 19.9% of the total number of shares of Common Stock issued and outstanding as of the date of this Note (the “Maximum Issuance”); provided, that to the extent the aggregate number of shares of Common Stock would exceed the Maximum Issuance, the Company shall issue and deliver to Holder a number of shares of Common Stock up to the Maximum Issuance and the unconverted Principal of this Note shall remain outstanding.

Reported Outstanding Share Number. If the Company Corporation receives a Exercise Notice of Conversion from the a Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company Corporation shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice of Conversion would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this Section 1(e6(c), to exceed the Maximum PercentageBeneficial Ownership Limitation, the Holder must notify the Company Corporation of a reduced number of Warrant Shares shares of Series C Preferred Stock to be purchased converted pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction SharesConversion. For any reason at any time, upon the written or oral request of the Holder, the Company Corporation shall within five one (51) Trading Days Business Day confirm orally and in writing or by electronic mail 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 any actual conversion or exercise of securities of the CompanyCorporation, including this Warrantshares of Series C Preferred Stock, by the such Holder and any other or its Attribution Party Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise conversion of this Warrant shares of Series C Preferred Stock results in the Holder and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage Beneficial Ownership Limitation of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares of Common Stock so issued by which the Holder’s and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage Beneficial Ownership Limitation (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company Corporation shall return to the Holder the exercise price paid by number of shares of Series C Preferred Stock corresponding to such excess. The “Beneficial Ownership Limitation” shall be 4.99% (or such other percentage (not to exceed 19.99%) that the Holder for the Excess Shares. Upon delivery of a has elected by written notice to the Company, Company prior to the Holder may from time to time increase date of this Certificate of Designation in respect of Series C Preferred Stock or decrease the Maximum Percentage to any warrant or other percentage (not in excess of 19.99% of the issued and outstanding security convertible into or exercisable for shares of Common Stock) of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of the shares of Common Stock issuable pursuant to such Notice of Conversion (to the extent permitted pursuant to this Section 6(c)). A Holder may, upon exercise of this Warrant if exceeding that limit would result in a change of control under NYSE Listed Company Manual Section 312.03(c) providing written notice to the Corporation, elect to increase or any successor rule) as specified in such noticedecrease the Beneficial Ownership Limitation (not to exceed 19.99%); provided that (i) any such increase in the Maximum Percentage will not be effective until the sixty-first (61st) day after delivery of such notice is delivered to the Company Corporation, (ii) the Holder may elect, upon delivery of written notice to the Corporation, not to have the right to increase the Beneficial Ownership Limitation from and after such time as may be specified in such notice, and any such election shall be irrevocable (and, if the Holder has made such irrevocable election prior to the date of this Certificate of Designation in respect of Series C Preferred Stock or any warrant or other security convertible into or exercisable for shares of Common Stock, then the Holder shall not have the right to increase the Beneficial Ownership Limitation at any time), and (iiiii) any such increase or decrease will apply only to the Holder and the other Attribution Parties and not to any other holder of Warrants Series C Preferred Stock that is not an Attribution Party of the Holder. For purposes of clarity, the shares of Common Stock issuable pursuant to upon conversion of the terms of this Warrant Series C Preferred Stock in excess of the Maximum Percentage Beneficial Ownership Limitation shall not be deemed to be beneficially owned by the Holder for any purpose including included for purposes of Section 13(d) or Rule 16a-1(a)(1) of the Exchange Act. No prior inability to exercise this Warrant convert shares of Series C Preferred Stock pursuant to this paragraph Section 6(c) shall have any effect on the applicability of the provisions of this paragraph Section 6(c) with respect to any subsequent determination of exercisabilityconversion. The provisions of this paragraph Section 6(c) shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 1(e6(c) to the extent necessary to correct this paragraph Section 6(c) or any portion of this paragraph Section 6(c) which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 1(e6(c) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph Section 6(c) may not be waived and shall apply to a successor holder of this WarrantSeries C Preferred Stock.