Common use of Second Closing Limitation Clause in Contracts

Second Closing Limitation. A Second Closing may not take place in connection with that amount of Second Closing Shares to be sold to a Subscriber which would be in excess of the sum of (y) the number of shares of Common Stock beneficially owned by such Subscriber on the Second Closing Date, and (z) the number of Second Closing Shares with respect to which the determination of this proviso is being made on a Second Closing Date, which would result in beneficial ownership by the Subscriber of more than 9.99% of the outstanding shares of Common Stock of the Company on the Second Closing Date. For the purposes of the proviso to the immediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and Regulation 13d-3 thereunder. The Subscriber may revoke the restriction described in this paragraph upon and effective after 61 days prior notice to the Company. The Subscriber shall have the right to determine which of the equity of the Company deemed beneficially owned by the Subscriber shall be included in the 9.99% amount described above and which shall be allocated to the excess above 9.99%, except that the Warrant Shares issuable upon exercise of the Second Closing Warrants will all be allocated to the amount above 9.99%.

Second Closing Limitation. A Second Closing may not take place in connection with that amount of Second Closing Shares to be sold to a Subscriber which would be in excess of the sum of (y) the number of shares of Common Stock beneficially owned by such Subscriber on the Second Closing Date, and (z) the number of Second Closing Shares with respect to which the determination of this proviso is being made on a Second Closing Date, which would result in beneficial ownership by the Subscriber of more than 9.99% of the outstanding shares of Common Stock of the Company on the Second Closing Date. For the purposes of the proviso to the immediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and Regulation 13d-3 thereunder. The Subscriber may revoke the restriction described in this paragraph upon and effective after 61 days prior notice to the Company. The Subscriber shall have the right to determine which of the equity of the Company deemed beneficially owned by the Subscriber shall be included in the 9.99% amount described above and which shall be allocated to the excess above 9.99%, except that the Warrant Shares issuable upon exercise of the Second Closing Warrants will all be allocated to the amount above 9.99%.; and

Second Closing Limitation. A Second Closing may not take place in connection with that amount of Second Closing Shares to be sold to a each Subscriber which would be in excess of the sum of (y) the number of shares of Common Stock beneficially owned by such Subscriber on the Second Closing Date, and (z) the number of Second Closing Shares with respect to which the determination of this proviso is being made on a Second Closing Date, which would result in beneficial ownership by the Subscriber of more than 9.99% of the outstanding shares of Common Stock of the Company on the Second Closing Date. For the purposes of the proviso to the immediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and Regulation 13d-3 thereunder. The A Subscriber may revoke the restriction described in this paragraph upon and effective after 61 days prior notice to the Company. The Each Subscriber shall have the right to determine which of the equity of the Company deemed beneficially owned by the such Subscriber shall be included in the 9.99% amount described above and which shall be allocated to the excess above 9.99%, except that the Warrant Shares issuable upon exercise of the Second Closing Warrants will all be allocated to the amount above 9.99%.