Common use of 99% Limitation Clause in Contracts

99% Limitation. The Company shall not effect the exercise of this Warrant, and the Holder shall not have the right to exercise this Warrant, to the extent that after giving effect to such exercise, such Person (together with such Holder’s Affiliates) would beneficially own in excess of 9.99% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such Holder and its affiliates shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised portion of this Warrant beneficially owned by such Holder and its affiliates and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such Holder and its Affiliates (including, Convertible Securities) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the Holder, the Company shall within five (5) Business Days confirm in writing 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 all Convertible Securities, by the Holder and its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the Holder may, from time to time, increase or decrease the Maximum Percentage to any other percentage specified in such notice; provided that (i) any such increase 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 not to any other holder of the Company’s Warrants. By written notice to the Company, the Holder may waive the provisions of this Section 9 as to itself but any such waiver will not be effective until the 61st day after delivery thereof and such waiver shall have no effect on any other holders of outstanding warrants issued pursuant to the Purchase Agreement.]2

99% Limitation. The Company shall not Under no circumstances may either Lender or Borrower effect the exercise of this Warranta Conversion if, and the Holder shall not have the right to exercise this Warrant, to the extent that after giving effect to such exerciseConversion upon delivery of Shares, such Person (together with such Holder’s Affiliates) Borrower would beneficially own in excess of 9.994.99% (the “Maximum Percentage”) of the shares Shares of Common Stock Lender outstanding immediately after giving effect to such exerciseconversion. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock Shares beneficially owned by such Holder the Lender and its affiliates Affiliates (as defined below) shall include the number of shares of Common Stock Shares issuable upon exercise of this Warrant the Conversion with respect to which the determination of such sentence is being made, but shall exclude shares the number of Common Stock Shares which would be issuable upon (iA) exercise conversion of the remaining, unexercised nonconverted portion of this Warrant Note beneficially owned by such Holder and the Lender or any of its affiliates Affiliates and (iiB) exercise or conversion of the unexercised or unconverted nonconverted portion of any other securities of the Company beneficially owned by such Holder and its Affiliates Borrower (including, Convertible Securitieswithout limitation, any other Notes or the Warrants) subject to a limitation on conversion or exercise analogous to the limitation contained hereinherein beneficially owned by the Lender or any of its Affiliates. Except as set forth in the preceding sentence, for purposes of this paragraphSection 1(d)(i), beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder and the rules and regulations promulgated thereunder (the "Exchange Act"). To the extent that the limitation contained in this section applies, the determination of whether this Note is convertible (in relation to other securities owned by the Lender) and of which a portion of this Note is convertible shall be in the sole discretion of Lender. To ensure compliance with this restriction, Lender will be deemed to represent to the Borrower each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Borrower shall have no obligation to verify or confirm the accuracy of such determination. 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 WarrantSection 1(d)(i), in determining the number of outstanding shares of Common StockShares, the Holder Lender may rely on the number of outstanding shares of Common Stock Shares as reflected in (1x) the Company’s Borrower's most recent quarterly or annual report on Form 10-K, QSB or Form 10-Q, Current Report KSB or equivalent similar filing on Form 8-K or other such public filing with disclosure service as the Securities and Exchange CommissionBorrower may then be utilizing, as the case may be, (2y) a more recent public announcement by the Company Borrower including on the OTC Markets website, or (3z) any other notice by the Company Borrower or the Company’s transfer agent Borrower's Transfer Agent approved by the Borrower setting forth the number of shares of Common Stock Shares outstanding. For any reason at any time, upon Upon the written or oral request of the HolderLender, the Company Borrower shall within five (5) Business Days two business days confirm orally and in writing to the Holder Lender the number of shares of Common Stock Shares then outstanding. In any case, the number of outstanding shares of Common Stock Shares shall be determined after giving effect to the conversion or exercise of securities of the CompanyBorrower, including all Convertible Securitiesthis Note, by the Holder and Lender or its Affiliates since the date as of which such number of outstanding shares of Common Stock Shares was reported. By written The provisions of this Section 1(d) may be waived by the Lender, at the election of the Lender, upon not less than 61 days' prior notice to the Company, the Holder may, from time to time, increase or decrease the Maximum Percentage to any other percentage specified in such notice; provided that (i) any such increase will not be effective until the sixty-first (61st) day after such notice is delivered to the CompanyBorrower, and (ii) any such increase or decrease will apply only to the Holder and not to any other holder of the Company’s Warrants. By written notice to the Company, the Holder may waive the provisions of this Section 9 1(d)(i) shall continue to apply until such 61st day (or such later date, as determined by the Lender, as may be specified in such notice of waiver). The provisions of this paragraph shall be implemented in a manner necessary to itself but any such waiver will preserve the intended 4.99% beneficial ownership limitation herein contained and shall not be effective until modified in a manner otherwise than in strict conformity with the 61st day after delivery thereof terms of this Section 1(d)(i) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended 4.99% beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such 4.99% limitation. The limitations contained in this paragraph shall apply to a successor holder of this Note. "Affiliate" means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and such waiver shall have no effect on any other holders construed under Rule 144 under the Securities Act of outstanding warrants issued pursuant to the Purchase Agreement.]21933, as amended.

99% Limitation. The Company shall not effect any conversion of the exercise of this WarrantPreferred Stock, and the Holder Purchaser shall not have the right to exercise this Warrant, convert any portion of the Preferred Stock to the extent that after giving effect to such exerciseconversion, such Person the Purchaser (together with such Holderthe Purchaser’s Affiliates) affiliates), as set forth on the applicable Notice of Conversion (as defined in the Certificate of Determination), would beneficially own in excess of 9.99% (the “Maximum Percentage”) of the number of shares of the Common Stock outstanding immediately after giving effect to such exerciseconversion. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such Holder the Purchaser and its affiliates shall include the number of shares of Common Stock issuable upon exercise conversion of this Warrant the Preferred Stock with respect to which the determination of such sentence is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise conversion of the remaining, unexercised portion nonconverted Stated Value of this Warrant Preferred Stock beneficially owned by such Holder and the Purchaser or any of its affiliates and (ii) exercise or conversion of the unexercised or unconverted nonconverted portion of any other securities of the Company beneficially owned by such Holder and its Affiliates (including, Convertible Securities) subject to a limitation on conversion or exercise analogous to the limitation contained hereinherein beneficially owned by the Purchaser or any of its affiliates. Except as set forth in the preceding sentence, for purposes of this paragraphSection 4.13(b), beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act Act. To the extent that the limitation contained in this Section 4.13(b) applies, the determination of 1934whether the Preferred Stock is convertible (in relation to other securities owned by the Purchaser together with any affiliates) and of which shares of Preferred Stock is convertible shall be in the sole discretion of such Purchaser, as amendedand the submission of a Notice of Conversion shall be deemed to be such Purchaser’s determination of whether the shares of Preferred Stock may be converted (in relation to other securities owned by such Purchaser) and which shares of the Preferred Stock is convertible, in each case subject to such aggregate percentage limitations. To ensure compliance with this restriction, the Purchaser will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation to verify or confirm the accuracy of such determination. For purposes of this WarrantSection 4.13(b), in determining the number of outstanding shares of Common Stock, the Holder Purchaser may rely on the number of outstanding shares of Common Stock as reflected in the most recent of the following: (1X) the Company’s most recent Form 10-K, QSB or Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange CommissionKSB, as the case may be, (2Y) a more recent public announcement by the Company or (3Z) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon Upon the written or oral request of the HolderPurchaser, the Company shall within five (5) Business two Trading Days confirm orally and in writing to the Holder Purchaser 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 all Convertible Securitiesthe Preferred Stock, by the Holder and Purchaser or its Affiliates affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the Holder may, from time to time, increase or decrease the Maximum Percentage to any other percentage specified in such notice; provided that (i) any such increase 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 not to any other holder of the Company’s Warrants. By written notice to the Company, the Holder may waive the The provisions of this Section 9 as to itself but any such waiver will 4.13(b) may not be effective until the 61st day after delivery thereof and such waiver shall have no effect on any other holders of outstanding warrants issued pursuant to the Purchase Agreement.]2waived.

99% Limitation. The Company shall not effect any conversion of the exercise of this WarrantPreferred Stock, and the Holder Purchaser shall not have the right to exercise this Warrant, convert any portion of the Preferred Stock to the extent that after giving effect to such exerciseconversion, such Person the Purchaser (together with such Holderthe Purchaser’s Affiliates) affiliates), as set forth on the applicable Notice of Conversion (as defined in the Certificate of Determination), would beneficially own in excess of 9.994.99% (the “Maximum Percentage”) of the number of shares of the Common Stock outstanding immediately after giving effect to such exerciseconversion. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such Holder the Purchaser and its affiliates shall include the number of shares of Common Stock issuable upon exercise conversion of this Warrant the Preferred Stock with respect to which the determination of such sentence is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise conversion of the remaining, unexercised portion nonconverted Stated Value of this Warrant Preferred Stock beneficially owned by such Holder and the Purchaser or any of its affiliates and (ii) exercise or conversion of the unexercised or unconverted nonconverted portion of any other securities of the Company beneficially owned by such Holder and its Affiliates (including, Convertible Securities) subject to a limitation on conversion or exercise analogous to the limitation contained hereinherein beneficially owned by the Purchaser or any of its affiliates. Except as set forth in the preceding sentence, for purposes of this paragraphSection 4.13(a), beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act Act. To the extent that the limitation contained in this Section 4.13(a) applies, the determination of 1934whether the Preferred Stock is convertible (in relation to other securities owned by the Purchaser together with any affiliates) and of which shares of Preferred Stock is convertible shall be in the sole discretion of such Purchaser, as amendedand the submission of a Notice of Conversion shall be deemed to be such Purchaser’s determination of whether the shares of Preferred Stock may be converted (in relation to other securities owned by such Purchaser) and which shares of the Preferred Stock is convertible, in each case subject to such aggregate percentage limitations. To ensure compliance with this restriction, the Purchaser will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation to verify or confirm the accuracy of such determination. For purposes of this WarrantSection 4.13(a), in determining the number of outstanding shares of Common Stock, the Holder Purchaser may rely on the number of outstanding shares of Common Stock as reflected in the most recent of the following: (1X) the Company’s most recent Form 10-K, QSB or Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange CommissionKSB, as the case may be, (2Y) a more recent public announcement by the Company or (3Z) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon Upon the written or oral request of the HolderPurchaser, the Company shall within five (5) Business two Trading Days confirm orally and in writing to the Holder Purchaser 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 all Convertible Securitiesthe Preferred Stock, by the Holder and Purchaser or its Affiliates affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written The provisions of this Section 4.13(a) may be waived by the Purchaser upon, at the election of the Purchaser, not less than 61 days’ prior notice to the Company, the Holder may, from time to time, increase or decrease the Maximum Percentage to any other percentage specified in such notice; provided that (i) any such increase 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 not to any other holder of the Company’s Warrants. By written notice to the Company, the Holder may waive the provisions of this Section 9 as 4.13(a) shall continue to itself but any apply until such waiver will not be effective until the 61st day after delivery thereof and (or such waiver shall have no effect on any other holders later date, as determined by the Purchaser, as may be specified in such notice of outstanding warrants issued pursuant to the Purchase Agreement.]2waiver).

99% Limitation. The Company shall not effect the exercise of this Warrant, and the Holder shall not have the right to exercise this Warrant, (1) Notwithstanding anything to the extent that after giving effect to such exercisecontrary contained herein, such Person (together with such Holder’s Affiliates) would beneficially own in excess of 9.99% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such Holder and its affiliates shall include the number of shares of Common Stock issuable that may be acquired at any time by a Holder upon exercise conversion of this Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Series A Convertible Preferred Stock which would be issuable upon (i) exercise of the remainingshall not exceed a number that, unexercised portion of this Warrant beneficially owned by such Holder and its affiliates and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such Holder and its Affiliates (including, Convertible Securities) subject to a limitation on conversion or exercise analogous when added to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the total number of shares of Common Stock outstanding. For any reason at any time, upon the written request deemed beneficially owned by such Holder (other than by virtue of the Holderownership of securities or rights to acquire securities (including the Warrants) that have limitations on the holder’s right to convert, the Company shall within five (5) Business Days confirm in writing exercise or purchase similar to the Holder limitation set forth herein (the number of “Excluded Shares”)), together with all shares of Common Stock then outstanding. In any casebeneficially owned at such time (other than by virtue of the ownership of Excluded Shares) by Persons whose beneficial ownership of Common Stock would be aggregated with the beneficial ownership by such Holder for purposes of determining whether a group exists or for purposes of determining the Holder’s beneficial ownership (the “Aggregation Parties”), in either such case for purposes of Section 13(d) of the number 1934 Act and Regulation 13D-G thereunder (including, without limitation, as the same is made applicable to Section 16 of outstanding the 1934 Act and the rules promulgated thereunder), would result in beneficial ownership by such Holder or such group of more than 9.9% of the shares of Common Stock for purposes of Section 13(d) or Section 16 of the 1934 Act and the rules promulgated thereunder (as the same may be modified by a particular Holder as provided herein, the “Restricted Ownership Percentage”). A Holder shall be determined after giving effect have the right at any time and from time to time to reduce its Restricted Ownership Percentage immediately upon notice to the conversion or exercise of securities Corporation in the event and only to the extent that Section 16 of the Company1934 Act or the rules promulgated thereunder (or any successor statute or rules) is changed to reduce the beneficial ownership percentage threshold thereunder to a percentage less than 9.9%. If at any time the limits in this Section 10(g) make the shares of Series A Convertible Preferred Stock held by any Holder inconvertible in whole or in part, including all Convertible Securities, the Corporation shall not by the Holder and reason thereof be relieved of its Affiliates since the date as of which such number of outstanding obligation to issue shares of Common Stock was reported. By written notice to the Company, the Holder may, at any time or from time to time, increase or decrease the Maximum Percentage to any other percentage specified time thereafter upon conversion of such shares of Series A Convertible Preferred Stock as and when shares of Common Stock may be issued in compliance with such notice; provided that (i) any such increase 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 not to any other holder of the Company’s Warrants. By written notice to the Company, the Holder may waive the provisions of this Section 9 as to itself but any such waiver will not be effective until the 61st day after delivery thereof and such waiver shall have no effect on any other holders of outstanding warrants issued pursuant to the Purchase Agreement.]2restrictions.