Common use of Reported Outstanding Share Number Clause in Contracts

Reported Outstanding Share Number. If the Company receives an Notice of Exercise from 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 notify Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Notice of Exercise would otherwise cause such Holder’s beneficial or deemed ownership under clause (x) or clause (y) above, as determined pursuant to this Section 1.7, to exceed the Maximum Percentage, such Holder must notify the Company of a reduced number of shares of Common Stock to be delivered pursuant to such Notice of Exercise. Upon delivery of a written notice to the Company, 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 9.99% as specified in the notice; provided that (i) any 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 Holder and its Attribution Parties, and not to any other holder of a warrant. As used herein, “Attribution 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 foregoing, (iii) any Person acting or who would be deemed to be acting as a Section 13(d) group together with Xxxxxx and any of the foregoing and (iv) any 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) of the Act.

Reported Outstanding Share Number. If the Company receives an a Exercise Notice of Exercise 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 of Exercise would otherwise cause such the Holder’s beneficial or deemed ownership under clause (x) or clause (y) aboveownership, as determined pursuant to this Section 1.71(e), to exceed the Maximum Percentage, such 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 delivered pursuant deemed null and void and shall be cancelled ab initio, and the Holder shall not have the power to such Notice vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of Exercisethe 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 of such Holder to any other percentage (not in excess of 9.9919.99% 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 the 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 its the other Attribution Parties, Parties and not to any other holder of a warrantWarrants that is not an Attribution Party of the Holder. As used herein, “Attribution Parties” means, collectivelyFor purposes of clarity, the following Persons and entities: (i) any investment vehicle, including any funds, feeder funds or managed accounts, currently, or from time shares of Common Stock issuable pursuant to time after the date hereof, directly or indirectly managed or advised by Xxxxxx’s investment manager or any terms of its affiliates or principals, (ii) any direct or indirect affiliates of Holder or any this Warrant in excess of the foregoing, (iii) any Person acting or who would Maximum Percentage shall not be deemed to be acting as a Section 13(d) group together with Xxxxxx and beneficially owned by the Holder for any of the foregoing and (iv) any other Persons whose beneficial ownership of the Common Stock would be aggregated with Holder’s and the other Attribution Parties 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 an a Conversion Notice of Exercise 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 notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Conversion Notice of Exercise would otherwise cause such the Holder’s beneficial or deemed ownership under clause (x) or clause (y) aboveownership, as determined pursuant to this Section 1.73(d), to exceed the Maximum Percentage, such the Holder must notify the Company of a reduced number of shares of Common Stock to be delivered purchased pursuant to such Notice Conversion Notice. For any reason at any time, upon the written or oral request of Exercisethe Holder, the Company shall within one (1) 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 Note, 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 conversion of this 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. 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 9.99% as specified in the 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 its the other Attribution Parties, Parties and not to any other holder of a warrantNotes that is not an Attribution Party of the Holder. As used herein, “Attribution Parties” means, collectivelyFor purposes of clarity, the following Persons and entities: (i) any investment vehicle, including any funds, feeder funds or managed accounts, currently, or from time shares of Common Stock issuable pursuant to time after the date hereof, directly or indirectly managed or advised by Xxxxxx’s investment manager or any terms of its affiliates or principals, (ii) any direct or indirect affiliates of Holder or any this Note in excess of the foregoing, (iii) any Person acting or who would Maximum Percentage shall not be deemed to be acting as a Section 13(d) group together with Xxxxxx and beneficially owned by the Holder for any of the foregoing and (iv) any other Persons whose beneficial ownership of the Common Stock would be aggregated with Holder’s and the other Attribution Parties 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 paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of convertibility. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 3(d) 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 3(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 Note. 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 an a Notice of Exercise Conversion from 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 notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Notice of Exercise Conversion would otherwise cause such the Holder’s beneficial or deemed ownership under clause (x) or clause (y) aboveownership, as determined pursuant to this Section 1.76(c), to exceed the Maximum PercentageBeneficial Ownership Limitation, such the Holder must notify the Company Corporation of a reduced number of shares of Common Series C Preferred Stock to be delivered converted pursuant to such Notice of ExerciseConversion. Upon delivery For any reason at any time, upon the written or oral request of a the Holder, the Corporation shall within one (1) 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 any actual conversion or exercise of securities of the Corporation, including shares of Series C Preferred Stock, by such Holder or its Attribution 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 conversion of 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 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 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 Corporation shall return to the Holder the 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 has elected by written notice to the CompanyCompany 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) of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock pursuant to such Notice of Conversion (to the extent permitted pursuant to this Section 6(c)). A Holder may, Holder may from time upon providing written notice to time the Corporation, elect to increase or decrease the Beneficial Ownership Limitation (with such not to exceed 19.99%); provided that (i) any increase will not be effective until the sixty-first (61st) day after delivery of such noticenotice to the Corporation, (ii) or decrease the Maximum Percentage 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 Holder to any other percentage not in excess of 9.99% time as may be specified in such notice, and any such election shall be irrevocable (and, if the notice; provided that (i) any increase in the Maximum Percentage will not be effective until the sixty-first (61st) day after Holder has made such notice is delivered irrevocable election prior to the Company 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 its the other Attribution Parties, Parties and not to any other holder of a warrantSeries C Preferred Stock that is not an Attribution Party of the Holder. As used herein, “Attribution Parties” means, collectivelyFor purposes of clarity, 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 shares of its affiliates or principals, (ii) any direct or indirect affiliates of Holder or any Common Stock issuable upon conversion of the foregoing, (iii) any Person acting or who would Series C Preferred Stock in excess of the Beneficial Ownership Limitation shall not be deemed to be acting as a Section 13(d) group together with Xxxxxx and beneficially owned by the Holder for any of the foregoing and (iv) any other Persons whose beneficial ownership of the Common Stock would be aggregated with Holder’s and the other Attribution Parties purpose included for purposes of Section 13(d) or Rule 16a-1(a)(1) of the Exchange Act. No prior inability to convert shares of Series C Preferred Stock pursuant to this Section 6(c) shall have any effect on the applicability of the provisions of this Section 6(c) with respect to any subsequent determination of conversion. The provisions of this Section 6(c) shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 6(c) to the extent necessary to correct this Section 6(c) or any portion of this Section 6(c) which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 6(c) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this Section 6(c) may not be waived and shall apply to a successor holder of Series C Preferred Stock.