Common use of Certain Limitations Clause in Contracts

Certain Limitations. Notwithstanding anything to the contrary contained in this Agreement, in no event may the Company issue a Draw Down Notice to the extent that (i) the Draw Down Amount Requested in such Draw Down Notice exceeds the Maximum Draw Down Amount Requested, (ii) the sale of Shares pursuant to such Draw Down Notice would cause the Company to issue or sell or the Investor to acquire or purchase a dollar value of shares of Common Stock which, when aggregated with all Draw Down Amounts paid by the Investor pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate Limit, or (iii) the sale of Shares pursuant to such Draw Down Notice would cause the Company to sell or the Investor to purchase a number of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates, would result in the beneficial ownership by the Investor or any of its Affiliates of more than 4.99% of the then issued and outstanding shares of Common Stock (the “Ownership Limitation”). If the Company issues a Draw Down Notice in which the Draw Down Amount Requested exceeds the Maximum Draw Down Amount Requested, such Draw Down Notice shall be void ab initio to the extent the Draw Down Amount Requested exceeds the Maximum Draw Down Amount Requested. If the Company issues a Draw Down Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor under this Agreement to exceed the Aggregate Limit, such Draw Down Notice shall be void ab initio to the extent of the amount by which the dollar value of shares of Common Stock otherwise issuable pursuant to such Draw Down Notice, together with all Draw Down Amounts paid by the Investor pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate Limit. If the Company issues a Draw Down Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate number of shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates to exceed the Ownership Limitation, such Draw Down Notice shall be void ab initio to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Draw Down Notice, together with all shares of Common Stock then beneficially owned by the Investor and its Affiliates, would exceed the Ownership Limitation.

Certain Limitations. Notwithstanding anything (a) The amount which an Indemnifying Party is or may be required to pay to an Indemnified Party in respect of Damages for which indemnification is provided under this Agreement will be reduced by any amounts actually received (including amounts received under insurance policies) by or on behalf of the Indemnified Party from third parties (net of out-of-pocket costs and expenses (including reasonable legal fees and expenses) incurred by such Indemnified Party in connection with seeking to collect and collecting such amounts), in respect of such Damages (such net amounts are referred to herein as “Indemnity Reduction Amounts”). If any Indemnified Party receives any Indemnity Reduction Amounts in respect of an Indemnified Claim for which indemnification is provided under this Agreement after the full amount of such Indemnified Claim has been paid by an Indemnifying Party or after an Indemnifying Party has made a partial payment of such Indemnified Claim and such Indemnity Reduction Amounts exceed the remaining unpaid balance of such Indemnified Claim, then the Indemnified Party will promptly remit to the contrary contained in this Agreement, in no event may the Company issue a Draw Down Notice Indemnifying Party an amount equal to the extent that excess (if any) of (i) the Draw Down Amount Requested amount theretofore paid by the Indemnifying Party in respect of such Draw Down Notice exceeds the Maximum Draw Down Amount RequestedIndemnified Claim, less (ii) the sale amount of Shares pursuant the indemnity payment that would have been due if such Indemnity Reduction Amounts in respect thereof had been received before the indemnity payment was made. An insurer or other third party who would otherwise be obligated to such Draw Down Notice pay any claim shall not be relieved of the responsibility with respect thereto or, solely by virtue of the indemnification provisions hereof, have any subrogation rights with respect thereto, it being expressly understood and agreed that no insurer or any other third party shall be entitled to any benefit they would cause not be entitled to receive in the Company absence of the indemnification provisions by virtue of the indemnification provisions hereof. The Seller and the Purchaser will use commercially reasonable efforts to issue or sell or mitigate the Investor to acquire or purchase a dollar value amount of shares of Common Stock which, when aggregated with all Draw Down Amounts paid by the Investor pursuant to all prior Draw Down Notices issued Damages for which indemnification is provided under this Agreement, would exceed the Aggregate Limit, or (iii) the sale of Shares pursuant to such Draw Down Notice would cause the Company to sell or the Investor to purchase a number of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates, would result in the beneficial ownership by the Investor or any of its Affiliates of more than 4.99% of the then issued and outstanding shares of Common Stock (the “Ownership Limitation”). If the Company issues a Draw Down Notice in which the Draw Down Amount Requested exceeds the Maximum Draw Down Amount Requested, such Draw Down Notice shall be void ab initio to the extent the Draw Down Amount Requested exceeds the Maximum Draw Down Amount Requested. If the Company issues a Draw Down Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor under this Agreement to exceed the Aggregate Limit, such Draw Down Notice shall be void ab initio to the extent of the amount by which the dollar value of shares of Common Stock otherwise issuable pursuant to such Draw Down Notice, together with all Draw Down Amounts paid by the Investor pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate Limit. If the Company issues a Draw Down Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate number of shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates to exceed the Ownership Limitation, such Draw Down Notice shall be void ab initio to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Draw Down Notice, together with all shares of Common Stock then beneficially owned by the Investor and its Affiliates, would exceed the Ownership Limitation.

Certain Limitations. Notwithstanding anything to the contrary contained in this Agreement, in no event may the Company issue a Draw Down Put Notice to the extent that (i) the Draw Down Put Amount Requested in such Draw Down Put Notice exceeds the Maximum Draw Down Put Amount Requestedrequested, (ii) the sale of Shares pursuant to such Draw Down Put Notice would cause the Company to issue or sell or the Investor to acquire or purchase a dollar value number of shares of Common Stock which, when aggregated with shares of Common Stock issued pursuant to all Draw Down Put Amounts paid by the Investor pursuant to all prior Draw Down Put Notices issued under this Agreement, would exceed the Aggregate Limit, Maximum Commitment Amount or (iii) the sale of Shares pursuant to such Draw Down Put Notice would cause the Company to sell or the Investor to purchase a number of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates, would result in the beneficial ownership by the Investor or any of its Affiliates of more than 4.99% of the then issued and outstanding shares of Common Stock (the “Ownership Limitation”). If the Company issues a Draw Down Put Notice in which the Draw Down Put Amount Requested exceeds the Maximum Draw Down Put Amount Requestedrequested, such Draw Down Put Notice shall be void ab initio to the extent the Draw Down Put Amount Requested exceeds the Maximum Draw Down Put Amount Requestedrequested. If the Company issues a Draw Down Put Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor under this Agreement to exceed the Aggregate LimitMaximum Commitment Amount, such Draw Down Put Notice shall be void ab initio to the extent of the amount by which the dollar value of shares of Common Stock otherwise issuable pursuant to such Draw Down Put Notice, together with all Draw Down Put Amounts paid by the Investor pursuant to all prior Draw Down Put Notices issued under this Agreement, would exceed the Aggregate LimitMaximum Commitment Amount. If the Company issues a Draw Down Put Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate number of shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates to exceed the Ownership Limitation, such Draw Down Put Notice shall be void ab initio to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Draw Down Put Notice, together with all shares of Common Stock then beneficially owned by the Investor and its Affiliates, would exceed the Ownership Limitation.

Certain Limitations. Notwithstanding anything to the contrary contained in this Agreement, in no event may the Company issue a Draw Down Notice to the extent that (i) the Draw Down Amount Requested in such Draw Down Notice exceeds the Maximum Draw Down Amount Requested, (ii) the sale of Shares pursuant to such Draw Down Notice would cause the Company to issue or sell or the Investor to acquire or purchase a dollar value of shares of Common Stock which, when aggregated with all Draw Down Amounts paid by the Investor pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate Limit, or (iii) the sale of Shares pursuant to such Draw Down Notice would cause the Company to sell or the Investor to purchase a number of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates, would result in the beneficial ownership by the Investor or any of its Affiliates of more than 4.999.99% of the then issued and outstanding shares of Common Stock (the “Ownership Limitation”). If the Company issues a Draw Down Notice in which the Draw Down Amount Requested exceeds the Maximum Draw Down Amount Requested, such Draw Down Notice shall be void ab initio to the extent the Draw Down Amount Requested exceeds the Maximum Draw Down Amount Requested. If the Company issues a Draw Down Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor under this Agreement to exceed the Aggregate Limit, such Draw Down Notice shall be void ab initio to the extent of the amount by which the dollar value of shares of Common Stock otherwise issuable pursuant to such Draw Down Notice, together with all Draw Down Amounts paid by the Investor pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate Limit. If the Company issues a Draw Down Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate number of shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates to exceed the Ownership Limitation, such Draw Down Notice shall be void ab initio to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Draw Down Notice, together with all shares of Common Stock then beneficially owned by the Investor and its Affiliates, would exceed the Ownership Limitation.

Certain Limitations. Notwithstanding anything to the contrary contained in this Agreementany other provisions of Section 2.3(b), in no event may the Company issue a Draw Down Notice (i) to the extent that any of or all the Net Cash Proceeds of any disposition by a Foreign Subsidiary giving rise to a prepayment pursuant to Section 2.3(b)(ii) (ia "Foreign Disposition"), the Net Cash Proceeds of any prepayment event from a Foreign Subsidiary (a "Foreign Prepayment Event") or Excess Cash Flow attributable to Foreign Subsidiaries would be prohibited or delayed by applicable local law (including financial assistance, corporate benefit, restrictions on upstreaming cash intra-group and the Draw Down Amount Requested fiduciary and statutory duties of directors of the relevant subsidiaries), the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in Section 2.3(b) (the Borrower hereby agreeing to use commercially reasonable efforts (as determined in the Borrower's reasonable business judgment) to otherwise cause the applicable Foreign Subsidiary to within one year following the date on which the respective payment would otherwise have been required, take all actions reasonably required by the applicable local law, applicable organizational or constitutive impediment or other impediment to permit such Draw Down Notice exceeds repatriation), and if within one year following the Maximum Draw Down Amount Requesteddate on which the respective payment would otherwise have been required, such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law, applicable organizational or constitutive impediment or other impediment, such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than five (5) Business Days after such repatriation could be made) applied (net of additional taxes, costs and expenses that would be payable or reserved against as a result of repatriating such amounts) (whether or not repatriation actually occurs) to the repayment of the Term Loans pursuant to Section 2.3(b) to the extent provided herein and (ii) the sale of Shares pursuant to such Draw Down Notice would cause the Company to issue or sell or the Investor to acquire or purchase a dollar value of shares of Common Stock which, when aggregated with all Draw Down Amounts paid by the Investor pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate Limit, or (iii) the sale of Shares pursuant to such Draw Down Notice would cause the Company to sell or the Investor to purchase a number of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates, would result in the beneficial ownership by the Investor or any of its Affiliates of more than 4.99% of the then issued and outstanding shares of Common Stock (the “Ownership Limitation”). If the Company issues a Draw Down Notice in which the Draw Down Amount Requested exceeds the Maximum Draw Down Amount Requested, such Draw Down Notice shall be void ab initio to the extent that the Draw Down Amount Requested exceeds Borrower has determined in good faith that repatriation of any of or all the Maximum Draw Down Amount RequestedNet Cash Proceeds of any Foreign Disposition, any Foreign Prepayment Event or Excess Cash Flow attributable to Foreign Subsidiaries would have a material adverse tax consequence to Holdings and its Restricted Subsidiaries, the Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in Section 2.3(b). If the Company issues The non- application of any prepayment amounts as a Draw Down Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor under this Agreement to exceed the Aggregate Limit, such Draw Down Notice shall be void ab initio to the extent consequence of the amount by which foregoing provisions will not, for the dollar value avoidance of shares doubt, constitute a Default or an Event of Common Stock otherwise issuable pursuant to such Draw Down Notice, together with all Draw Down Amounts paid by the Investor pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate Limit. If the Company issues a Draw Down Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate number of shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates to exceed the Ownership Limitation, such Draw Down Notice shall be void ab initio to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Draw Down Notice, together with all shares of Common Stock then beneficially owned by the Investor and its Affiliates, would exceed the Ownership LimitationDefault.

Certain Limitations. Notwithstanding anything to the contrary contained in this Agreement, in no event may the Company issue a Draw Down Notice to the extent that (i) the Draw Down Amount Requested in such Draw Down Notice exceeds the Maximum Fixed Draw Down Amount Requested, in the case of a Fixed Draw Down Notice, or exceeds the Maximum Regular Draw Down Amount Requested, in the case of a Regular Draw Down Notice or, (ii) the sale of Shares pursuant to such Draw Down Notice would cause the Company to issue or sell or the Investor to acquire or purchase a dollar value of shares of Common Stock which, when aggregated with all Draw Down Amounts paid by the Investor pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate Limit, or (iii) the sale of Shares pursuant to such Draw Down Notice would cause the Company to sell or the Investor to purchase a number of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates, would result in the beneficial ownership by the Investor or any of its Affiliates of more than 4.99% of the then issued and outstanding shares of Common Stock (the “Ownership Limitation”). If the Company issues a Draw Down Notice in which the Draw Down Amount Requested exceeds the Maximum Fixed Draw Down Amount Requested, in the case of a Fixed Draw Down Notice, or exceeds the Maximum Regular Draw Down Amount Requested, in the case of a Regular Draw Down Notice, such Draw Down Notice shall be void ab initio to the extent the Draw Down Amount Requested exceeds the Maximum Fixed Draw Down Amount Requested, in the case of a Fixed Draw Down Notice, or exceeds the Maximum Regular Draw Down Amount Requested, in the case of a Regular Draw Down Notice. If the Company issues a Draw Down Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor under this Agreement to exceed the Aggregate Limit, such Draw Down Notice shall be void ab initio to the extent of the amount by which the dollar value of shares of Common Stock otherwise issuable pursuant to such Draw Down Notice, together with all Draw Down Amounts paid by the Investor pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate Limit. If the Company issues a Draw Down Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate number of shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates to exceed the Ownership Limitation, such Draw Down Notice shall be void ab initio to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Draw Down Notice, together with all shares of Common Stock then beneficially owned by the Investor and its Affiliates, would exceed the Ownership Limitation.

Certain Limitations. Notwithstanding anything to the contrary contained in this Agreement, in no event may the Company issue a Draw Down Fixed Request Notice to the extent that (i) the Draw Down Fixed Amount Requested in such Draw Down Fixed Request Notice exceeds the Maximum Draw Down Fixed Amount RequestedRequested determined in accordance with Section 3.2 (if the Company has not elected the Alternative Fixed Amount Requested in accordance with the provisions of Section 3.2 hereof), (ii) the sale of Shares pursuant to such Draw Down Fixed Request Notice would cause the Company to issue or sell or the Investor to acquire or purchase (A) a dollar value of shares Common Stock which, when aggregated with all Fixed Request Amounts paid by the Investor pursuant to all prior Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit or (B) a number of shares of Common Stock which, when aggregated with all Draw Down Amounts paid Shares purchased by the Investor pursuant to all prior Draw Down Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, as the case may be, or (iii) the sale of Shares pursuant to such Draw Down Fixed Request Notice would cause the Company to sell or the Investor to purchase a number of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates, would result in the beneficial ownership by the Investor or any of its Affiliates of more than 4.999.9% of the then issued and outstanding shares of Common Stock (the “Ownership Limitation”). If the Company issues a Draw Down Fixed Request Notice in which the Draw Down Fixed Amount Requested exceeds the Maximum Draw Down Fixed Amount RequestedRequested determined in accordance with Section 3.2 (if the Company has not elected the Alternative Fixed Amount Requested in accordance with the provisions of Section 3.2 hereof), such Draw Down Fixed Request Notice shall be void ab initio to the extent the Draw Down Fixed Amount Requested exceeds the Maximum Draw Down Fixed Amount Requested. If the Company issues a Draw Down Fixed Request Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor under this Agreement to exceed the Aggregate Limit, such Draw Down Fixed Request Notice shall be void ab initio to the extent of (x) the amount by which the dollar value of shares of Common Stock otherwise issuable pursuant to such Draw Down Fixed Request Notice, together with all Draw Down Fixed Request Amounts paid by the Investor pursuant to all prior Draw Down Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, or (y) the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Fixed Request Notice, together with all Shares purchased by the Investor pursuant to all prior Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, as the case may be. If the Company issues a Draw Down Fixed Request Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate number of shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates to exceed the Ownership Limitation, such Draw Down Fixed Request Notice shall be void ab initio to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Draw Down Fixed Request Notice, together with all shares of Common Stock then beneficially owned by the Investor and its Affiliates, would exceed the Ownership Limitation. The Company hereby represents, warrants and covenants that neither it nor any of its Subsidiaries (1) has effected any transaction or series of transactions, (2) is a party to any pending transaction or series of transactions or (3) shall enter into any contract, agreement, agreement-in-principle, arrangement or understanding with respect to, or shall effect, any Alternate Transaction which, in any of such cases, may be aggregated with the transactions contemplated by this Agreement for purposes of determining whether approval of the Company’s stockholders is required under any bylaw, listed securities maintenance standards or other rules of the Trading Market; provided, however, that the Company shall be permitted to take any action referred to in clause (3) above if (x) the Company has timely provided the Investor with an Aggregation Notice as provided in Section 6.7(ii) hereof and (y) unless the Investor has previously terminated this Agreement pursuant to Section 8.2, the Company obtains the requisite stockholder approval prior to the closing of such Alternate Transaction. The parties hereto hereby acknowledge and agree that the provisions of this Section 3.10 shall not be amended or waived under any circumstances.

Certain Limitations. Notwithstanding anything to the contrary contained in this Agreement, in no event may the Company issue a Draw Down Notice to the extent that (i) the Draw Down Amount Requested in such Draw Down Notice exceeds the Maximum Draw Down Amount Requested, (ii) the sale of Shares pursuant to such Draw Down Notice would cause the Company to issue or sell or the Investor to acquire or purchase a dollar value number of shares of Common Stock which, when aggregated with shares of Common Stock issued pursuant to all Draw Down Amounts paid by the Investor pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate Limit, or (iii) the sale of Shares pursuant to such Draw Down Notice would cause the Company to sell or the Investor to purchase a number of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates, would result in the beneficial ownership by the Investor or any of its Affiliates of more than 4.99% of the then issued and outstanding shares of Common Stock (the “Ownership Limitation”) (as of the date of this Agreement, Investor and its affiliates held zero (0%) percent of the outstanding Common Stock). If the Company issues a Draw Down Notice in which the Draw Down Amount Requested exceeds the Maximum Draw Down Amount Requested, such Draw Down Notice shall be void ab initio to the extent the Draw Down Amount Requested exceeds the Maximum Draw Down Amount Requested. If the Company issues a Draw Down Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor under this Agreement to exceed the Aggregate Limit, such Draw Down Notice shall be void ab initio to the extent of the amount by which the dollar value of shares of Common Stock otherwise issuable pursuant to such Draw Down Notice, together with all Draw Down Amounts paid by the Investor pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate Limit. If the Company issues a Draw Down Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate number of shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates to exceed the Ownership Limitation, such Draw Down Notice shall be void ab initio to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Draw Down Notice, together with all shares of Common Stock then beneficially owned by the Investor and its Affiliates, would exceed the Ownership Limitation.

Certain Limitations. Notwithstanding anything to the contrary contained in this Agreementparagraphs (a) and (b) above: at no time shall there be more than six Interest Periods applicable to outstanding Eurodollar Rate Advances and the Borrower may not select Eurodollar Rate Advances for any Borrowing at any time that a Default has occurred and is continuing; if any Lender shall, in no event may at least one Business Day before the Company issue a Draw Down Notice to the extent that (i) the Draw Down Amount Requested in such Draw Down Notice exceeds the Maximum Draw Down Amount Requesteddate of any requested Borrowing, (ii) the sale of Shares pursuant to such Draw Down Notice would cause the Company to issue or sell or the Investor to acquire or purchase a dollar value of shares of Common Stock which, when aggregated with all Draw Down Amounts paid by the Investor pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate LimitConversion, or (iii) continuation, notify the sale Administrative Agent that the introduction of Shares pursuant to such Draw Down Notice would cause the Company to sell or the Investor to purchase a number of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates, would result any change in or in the beneficial ownership by the Investor interpretation of any law or regulation makes it unlawful, or that any of central bank or other Governmental Authority asserts that it is unlawful, for such Lender or its Affiliates of more than 4.99% of the then issued and outstanding shares of Common Stock (the “Ownership Limitation”). If the Company issues a Draw Down Notice in which the Draw Down Amount Requested exceeds the Maximum Draw Down Amount Requested, such Draw Down Notice shall be void ab initio applicable Lending Office to the extent the Draw Down Amount Requested exceeds the Maximum Draw Down Amount Requested. If the Company issues a Draw Down Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor perform its obligations under this Agreement to exceed make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances, the Aggregate Limit, right of the Borrower to select Eurodollar Rate Advances from such Draw Down Notice Lender shall be void ab initio suspended until such Lender shall notify the Administrative Agent that the circumstances causing such suspension no longer exist, and the Advance made by such Lender in respect of such Borrowing, Conversion, or continuation shall be an ABR Advance; if the Administrative Agent is unable to determine the Eurodollar Rate for Eurodollar Rate Advances comprising any requested Borrowing, the right of the Borrower to select Eurodollar Rate Advances for such Borrowing or for any subsequent Borrowing shall be suspended until the Administrative Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be an ABR Advance; if the Majority Lenders shall, at least one Business Day before the date of any requested Borrowing, notify the Administrative Agent that the Eurodollar Rate for Eurodollar Rate Advances comprising such Borrowing will not adequately reflect the cost to such Lenders of making or funding their respective Eurodollar Rate Advances, as the case may be, for such Borrowing, the right of the Borrower to select Eurodollar Rate Advances for such Borrowing or for any subsequent Borrowing shall be suspended until the Administrative Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be an ABR Advance; and if the Borrower shall fail to select the duration or continuation of any Interest Period for any Eurodollar Rate Advances in accordance with the provisions contained in the definition of “Interest Period” in Section 1.01 and paragraph (b) of this Section 2.03, the Administrative Agent shall forthwith so notify the Borrower and the Lenders and such Advances shall be made available to the extent Borrower on the date of such Borrowing as ABR Advances or, if an existing Advance, Convert into ABR Advances. Notices Irrevocable. Each Notice of Borrowing and Notice of Conversion or Continuation shall be irrevocable and binding on the Borrower. In the case of any Borrowing for which the related Notice of Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall indemnify each Lender against any loss, out-of-pocket cost, or expense incurred by such Lender as a result of any failure by the Borrower to fulfill on or before the date specified in such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article III including any loss (including any loss of anticipated profits), cost, or expense incurred by reason of the amount liquidation or reemployment of deposits or other funds acquired by which such Lender to fund the dollar value Advance to be made by such Lender as part of shares such Borrowing when such Advance, as a result of Common Stock otherwise issuable pursuant to such Draw Down Noticefailure, together with all Draw Down Amounts paid by the Investor pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate Limit. If the Company issues a Draw Down Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate number of shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates to exceed the Ownership Limitation, is not made on such Draw Down Notice shall be void ab initio to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Draw Down Notice, together with all shares of Common Stock then beneficially owned by the Investor and its Affiliates, would exceed the Ownership Limitationdate.

Certain Limitations. Notwithstanding anything to the contrary contained in this Agreement, in no event may the Company issue a Draw Down Fixed Request Notice to the extent that (i) the Draw Down Fixed Amount Requested in such Draw Down Fixed Request Notice exceeds the Maximum Draw Down Fixed Amount RequestedRequested determined in accordance with Section 3.2 (if the Company has not elected the Alternative Fixed Amount Requested in accordance with the provisions of Section 3.2 hereof), (ii) the sale of Shares pursuant to such Draw Down Fixed Request Notice would cause the Company to issue or sell or the Investor to acquire or purchase (A) a dollar value of shares of Common Stock (based on the prices actually paid by the Investor to the Company for Shares) which, when aggregated with all Fixed Request Amounts paid by the Investor pursuant to all prior Fixed Request Notices issued under this Agreement, would exceed the Total Commitment, (B) a number of shares of Common Stock which, when aggregated with all Draw Down Amounts paid Shares purchased or acquired by the Investor pursuant to all prior Draw Down Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, or (C) a number of shares of Common Stock that would exceed the Single Fixed Request Limit (taking into account all shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by such Fixed Request Notice under applicable rules of the NASDAQ Stock Market), or (iii) the sale of Shares pursuant to such Draw Down Fixed Request Notice would cause the Company to sell or the Investor to purchase a aggregate number of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its AffiliatesAffiliates to exceed the Ownership Limitation. Notwithstanding anything in this Agreement to the contrary, would result in neither the beneficial ownership by Exchange Cap nor the Investor Single Fixed Request Limit shall be applicable for any purposes of this Agreement or any of its Affiliates of more than 4.99% the transactions contemplated hereby if the stockholders of the then issued and outstanding shares Company have approved the issuance of Common Stock (as contemplated by this Agreement in accordance with the “Ownership Limitation”)applicable rules and regulations of the NASDAQ Stock Market and the Charter and Bylaws of the Company. If the Company issues a Draw Down Fixed Request Notice in which the Draw Down Fixed Amount Requested exceeds the Maximum Draw Down Fixed Amount RequestedRequested determined in accordance with Section 3.2 (if the Company has not elected the Alternative Fixed Amount Requested in accordance with the provisions of Section 3.2 hereof), such Draw Down Fixed Request Notice shall be void ab initio but only to the extent the Draw Down Fixed Amount Requested exceeds the Maximum Draw Down Fixed Amount Requested. If the Company issues a Draw Down Fixed Request Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor under this Agreement to exceed the Aggregate Limit, such Draw Down Fixed Request Notice shall be void ab initio to the extent of (x) the amount by which the dollar value of shares of Common Stock (based on the prices actually paid by the Investor to the Company for Shares) otherwise issuable pursuant to such Draw Down Fixed Request Notice, together with all Draw Down Fixed Request Amounts paid by the Investor pursuant to all prior Draw Down Fixed Request Notices issued under this Agreement, would exceed the Total Commitment, or (y) the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Fixed Request Notice, together with all Shares purchased by the Investor pursuant to all prior Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, as the case may be. If the Company issues a Draw Down Fixed Request Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate number of shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates to exceed the Ownership Limitation, such Draw Down Fixed Request Notice shall be void ab initio to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Draw Down Fixed Request Notice, together with all shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates, would exceed the Ownership Limitation. If the Company issues a Fixed Request Notice that otherwise would require the Investor to purchase shares of Common Stock which when aggregated with all other shares of Common Stock issued or sold pursuant to any transaction or series of transactions that would be aggregated for purposes of determining whether approval of the Company’s stockholders is required under any bylaw, listed securities maintenance standards or other rules of the NASDAQ Stock Market would exceed the Single Fixed Request Limit, such Fixed Request Notice shall be void ab initio but only to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Fixed Request Notice, together with all shares of Common Stock issued pursuant to all such other aggregated transactions, would exceed the Single Fixed Request Limit.

Certain Limitations. Notwithstanding anything to the contrary contained in this Agreement, in no event may the Company issue a Draw Down Fixed Request Notice to the extent that (i) the Draw Down Fixed Amount Requested in such Draw Down Fixed Request Notice exceeds the Maximum Draw Down Fixed Amount RequestedRequested determined in accordance with Section 3.2 (if the Company has not elected the Alternative Fixed Amount Requested in accordance with the provisions of Section 3.2 hereof), (ii) the sale of Shares pursuant to such Draw Down Fixed Request Notice would cause the Company to issue or sell or the Investor to acquire or purchase (A) a dollar value of shares Common Stock which, when aggregated with all Fixed Request Amounts paid by the Investor pursuant to all prior Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit or (B) a number of shares of Common Stock which, when aggregated with all Draw Down Amounts paid Shares purchased by the Investor pursuant to all prior Draw Down Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, as the case may be, or (iii) the sale of Shares pursuant to such Draw Down Fixed Request Notice would cause the Company to sell or the Investor to purchase a number of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates, would result in the beneficial ownership by the Investor or any of its Affiliates of more than 4.999.9% of the then issued and outstanding shares of Common Stock (the “Ownership Limitation”). If the Company issues a Draw Down Fixed Request Notice in which the Draw Down Fixed Amount Requested exceeds the Maximum Draw Down Fixed Amount RequestedRequested determined in accordance with Section 3.2 (if the Company has not elected the Alternative Fixed Amount Requested in accordance with the provisions of Section 3.2 hereof), such Draw Down Fixed Request Notice shall be void ab initio to the extent the Draw Down Fixed Amount Requested exceeds the Maximum Draw Down Fixed Amount Requested. If the Company issues a Draw Down Fixed Request Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor under this Agreement to exceed the Aggregate Limit, such Draw Down Fixed Request Notice shall be void ab initio to the extent of (x) the amount by which the dollar value of shares of Common Stock otherwise issuable pursuant to such Draw Down Fixed Request Notice, together with all Draw Down Fixed Request Amounts paid by the Investor pursuant to all prior Draw Down Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, or (y) the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Fixed Request Notice, together with all Shares purchased by the Investor pursuant to all prior Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, as the case may be. If the Company issues a Draw Down Fixed Request Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate number of shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates to exceed the Ownership Limitation, such Draw Down Fixed Request Notice shall be void ab initio to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Draw Down Fixed Request Notice, together with all shares of Common Stock then beneficially owned by the Investor and its Affiliates, would exceed the Ownership Limitation. The Company hereby represents, warrants and covenants that neither it nor any of its Subsidiaries (1) has effected any transaction or series of transactions, (2) is a party to any pending transaction or series of transactions or (3) shall enter into any contract, agreement, agreement-in-principle, arrangement or understanding with respect to, or shall effect, any Alternate Transaction which, in any of such cases, may be aggregated with the transactions contemplated by this Agreement for purposes of determining whether approval of the Company’s shareholders is required under any bylaw, listed securities maintenance standards or other rules of the Trading Market; provided, however, that the Company shall be permitted to take any action referred to in clause (3) above if (x) the Company has timely provided the Investor with an Aggregation Notice as provided in Section 6.7(ii) hereof and (y) unless the Investor has previously terminated this Agreement pursuant to Section 8.2, the Company obtains the requisite shareholder approval prior to the closing of such Alternate Transaction. The parties hereto hereby acknowledge and agree that the provisions of this Section 3.10 shall not be amended or waived under any circumstances.

Certain Limitations. Notwithstanding anything to the contrary contained in this Agreement, in no event may the Company issue a Draw Down Notice to the extent that (i) the Draw Down Amount Requested in such Draw Down Notice exceeds the Maximum Draw Down Amount Requested, (ii) the sale of Shares pursuant to such Draw Down Notice would cause the Company to issue or sell or the Investor Investors to acquire or purchase a dollar value of shares of Common Stock which, when aggregated with all Draw Down Amounts paid by the Investor Investors pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate Limit, or (iii) the sale of Shares pursuant to such Draw Down Notice would cause the Company to sell or the Investor Investors to purchase from the Company, a number of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by all of the Investor Investors and its their respective Affiliates, would result in the collective beneficial ownership by the Investor or any of its Affiliates Investors of more than 4.999.99% of the then issued and outstanding shares of Common Stock (the “Ownership Limitation”). If the Company issues a Draw Down Notice in which the Draw Down Amount Requested exceeds the Maximum Draw Down Amount Requested, such Draw Down Notice shall be void ab initio to the extent the Draw Down Amount Requested exceeds the Maximum Draw Down Amount Requested. If the Company issues a Draw Down Notice that otherwise would require the Investor Investors to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor Investors under this Agreement to exceed the Aggregate Limit, such Draw Down Notice shall be void ab initio to the extent of the amount by which the dollar value of shares of Common Stock otherwise issuable pursuant to such Draw Down Notice, together with all Draw Down Amounts paid by the Investor Investors pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate Limit. If the Company issues a Draw Down Notice that otherwise would require the any Investor to purchase shares of Common Stock which would cause the aggregate number of shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the such Investor and its Affiliates to exceed the Ownership Limitation, such Draw Down Notice shall be void ab initio to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Draw Down Notice, together with all shares of Common Stock then beneficially owned by the such Investor and its Affiliates, would exceed the Ownership Limitation.

Certain Limitations. Notwithstanding anything to the contrary contained in this Agreement, in no event may the Company issue a Draw Down Notice to the extent that (i) the Draw Down Amount Requested in such Draw Down Notice exceeds the Maximum Draw Down Amount Requested, (ii) the sale of Shares pursuant to such Draw Down Notice would cause the Company to issue or sell or the Investor to acquire or purchase a dollar value number of shares of Common Stock which, when aggregated with shares of Common Stock issued pursuant to all Draw Down Amounts paid by the Investor pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate Limit, or (iii) the sale of Shares pursuant to such Draw Down Notice would cause the Company to sell or the Investor to purchase a number of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates, would result in the beneficial ownership by the Investor or any of its Affiliates of more than 4.99% of the then issued and outstanding shares of Common Stock (the “Ownership Limitation”). If the Company issues a Draw Down Notice in which the Draw Down Amount Requested exceeds the Maximum Draw Down Amount Requested, such Draw Down Notice shall be void ab initio to the extent the Draw Down Amount Requested exceeds the Maximum Draw Down Amount Requested. If the Company issues a Draw Down Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor under this Agreement to exceed the Aggregate Limit, such Draw Down Notice shall be void ab initio to the extent of the amount by which the dollar value of shares of Common Stock otherwise issuable pursuant to such Draw Down Notice, together with all Draw Down Amounts paid by the Investor pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate Limit. If the Company issues a Draw Down Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate number of shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates to exceed the Ownership Limitation, such Draw Down Notice shall be void ab initio to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Draw Down Notice, together with all shares of Common Stock then beneficially owned by the Investor and its Affiliates, would exceed the Ownership Limitation.

Certain Limitations. Notwithstanding anything The issuance and sale of the Shares issuable pursuant to the contrary contained in this Agreementapplicable Fixed Purchase Notice, in no event may the Company issue a Draw Down applicable VWAP Purchase Notice, and applicable Additional VWAP Purchase Notice to the extent that (ias applicable) the Draw Down Amount Requested in such Draw Down Notice exceeds the Maximum Draw Down Amount Requested, shall not (iia) the sale of Shares pursuant to such Draw Down Notice would cause the Company to issue or sell or the Investor to acquire or purchase a dollar value of shares of Common Stock which, when aggregated with all Draw Down Amounts paid by the Investor pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate Limitapplicable Fixed Purchase Maximum Amount, the applicable VWAP Purchase Maximum Amount and the applicable Additional VWAP Purchase Maximum Amount, respectively, or (iiib) the sale of Shares pursuant to such Draw Down Notice would cause the Company to sell Aggregate Limit or the Investor Beneficial Ownership Limitation to purchase a number be exceeded. To the extent the issuance of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates, any Initial Commitment Shares would result in the beneficial ownership Investor exceeding the Beneficial Ownership Limitation, then the Company shall pay Investor, on the date such Commitment Shares are issuable, an amount in cash (in immediately available United States Dollars) equal to the product of the number of such Commitment Shares which cause Investor to exceed the Beneficial Ownership Limitation multiplied by the greater of (1) the Closing Sale Price of the Common Stock on the date preceding the date of this Agreement and (2) the Closing Sale Price of the Common Stock on the date preceding the date on which such Commitment Shares are due. To the extent the issuance of any Back End Commitment Shares would result in the Investor or any exceeding the Beneficial Ownership Limitation, then the Company shall issue such number of its Affiliates Back End Commitment Shares as shall not result in the Investor exceeding the Beneficial Ownership Limitation (the “Reduced Commitment Shares”) and the number of more than 4.99Back End Commitment Shares in excess of the Reduced Commitment Shares that would otherwise be issuable in the absence of this sentence shall be issued at such time as the Investor notifies the Company in writing that the issuance thereof would no longer result in the Investor exceeding the Beneficial Ownership Limitation; provided, however, that solely for purposes of when Back End Commitment Shares are issuable, the Beneficial Ownership Limitation shall be 2.5% of the then issued and outstanding shares of Common Stock (instead of 4.99% of the “Ownership Limitation”). If the Company issues a Draw Down Notice in which the Draw Down Amount Requested exceeds the Maximum Draw Down Amount Requested, such Draw Down Notice shall be void ab initio to the extent the Draw Down Amount Requested exceeds the Maximum Draw Down Amount Requested. If the Company issues a Draw Down Notice that otherwise would require the Investor to purchase outstanding shares of Common Stock which would cause Stock. In addition, if on a date Commitment Shares are issuable to an Investor, the aggregate purchases Company has yet to obtain the approval of Common Stock by the Investor under this Agreement to exceed the Aggregate Limit, such Draw Down Notice shall be void ab initio to the extent its shareholders of the amount transactions contemplated by which that certain Business Combination Agreement, dated June 4, 2023, between the dollar value Company, CERo Therapeutics, Inc. and PBCE Merger Sub, Inc., or approval of shares its shareholders to issue more than 19.99% of Common Stock otherwise issuable pursuant to such Draw Down Notice, together the outstanding stock of the Company as of the date hereof in connection with all Draw Down Amounts paid the transactions contemplated by the Investor pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate Limit. If the Company issues a Draw Down Notice that otherwise would require then the Investor shall have the option to purchase shares of Common Stock which would cause the aggregate number of shares of Common Stock then beneficially owned either receive such Commitment Shares issuable to it, or an amount in cash (as calculated pursuant to Section 13(din immediately available United States Dollars) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates to exceed the Ownership Limitation, such Draw Down Notice shall be void ab initio equal to the extent product of the amount by which the number of shares such Commitment Shares then issuable to Investor, multiplied by the greater of (1) the Closing Sale Price of the Common Stock otherwise issuable pursuant to such Draw Down Notice, together with all shares on the date preceding the date of this Agreement and (2) the Closing Sale Price of the Common Stock then beneficially owned by on the Investor and its Affiliates, would exceed date preceding the Ownership Limitationdate on which such Commitment Shares are due.

Certain Limitations. Notwithstanding anything to the contrary contained in this Agreement, in no event may the Company issue a Draw Down Notice to the extent that (i) the Draw Down Amount Requested in such Draw Down Notice exceeds the Maximum Fixed Draw Down Amount Requested, in the case of a Fixed Draw Down Notice, or exceeds the Maximum Regular Draw Down Amount Requested, in the case of a Regular Draw Down Notice or, (ii) the sale of Shares pursuant to such Draw Down Notice would cause the Company to issue or sell or the Investor to acquire or purchase a dollar value of shares of Common Stock which, when aggregated with all Draw Down Amounts paid by the Investor pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate Limit, or (iii) the sale of Shares pursuant to such Draw Down Notice would cause the Company to sell or the Investor to purchase a number of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates, would result in the beneficial ownership by the Investor or any of its Affiliates of more than 4.999.99% of the then issued and outstanding shares of Common Stock (the “Ownership Limitation”"OWNERSHIP LIMITATION"). If the Company issues a Draw Down Notice in which the Draw Down Amount Requested exceeds the Maximum Fixed Draw Down Amount Requested, in the case of a Fixed Draw Down Notice, or exceeds the Maximum Regular Draw Down Amount Requested, in the case of a Regular Draw Down Notice, such Draw Down Notice shall be void ab initio AB INITIO to the extent the Draw Down Amount Requested exceeds the Maximum Fixed Draw Down Amount Requested, in the case of a Fixed Draw Down Notice, or exceeds the Maximum Regular Draw Down Amount Requested, in the case of a Regular Draw Down Notice. If the Company issues a Draw Down Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor under this Agreement to exceed the Aggregate Limit, such Draw Down Notice shall be void ab initio AB INITIO to the extent of the amount by which the dollar value of shares of Common Stock otherwise issuable pursuant to such Draw Down Notice, together with all Draw Down Amounts paid by the Investor pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate Limit. If the Company issues a Draw Down Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate number of shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates to exceed the Ownership Limitation, such Draw Down Notice shall be void ab initio AB INITIO to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Draw Down Notice, together with all shares of Common Stock then beneficially owned by the Investor and its Affiliates, would exceed the Ownership Limitation.

Certain Limitations. Notwithstanding anything The issuance and sale of the Shares issuable pursuant to the contrary contained in this Agreementapplicable Fixed Purchase Notice, in no event may the Company issue a Draw Down applicable VWAP Purchase Notice, and applicable Additional VWAP Purchase Notice to the extent that (ias applicable) the Draw Down Amount Requested in such Draw Down Notice exceeds the Maximum Draw Down Amount Requested, shall not (iia) the sale of Shares pursuant to such Draw Down Notice would cause the Company to issue or sell or the Investor to acquire or purchase a dollar value of shares of Common Stock which, when aggregated with all Draw Down Amounts paid by the Investor pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate Limitapplicable Fixed Purchase Maximum Amount, the applicable VWAP Purchase Maximum Amount and the applicable Additional VWAP Purchase Maximum Amount, respectively, or (iiib) the sale of Shares pursuant to such Draw Down Notice would cause the Company to sell Aggregate Limit or the Investor Beneficial Ownership Limitation to purchase a number be exceeded. To the extent the issuance of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates, any Commitment Shares would result in the beneficial ownership Investor exceeding the Beneficial Ownership Limitation, then the Company shall pay Investor, on the date such Commitment Shares are issuable, an amount in cash (in immediately available United States Dollars) equal to the product of the number of such Commitment Shares which cause Investor to exceed the Beneficial Ownership Limitation multiplied by the Investor or any greater of (1) the Closing Sale Price of the Common Stock on the date preceding the date of this Agreement and (2) the Closing Sale Price of the Common Stock on the date preceding the date on which such Commitment Shares are due. In addition, if on a date Commitment Shares are issuable to an Investor, the Company has yet to obtain the approval of its Affiliates shareholders of the transactions contemplated by that certain Business Combination Agreement, dated June 4, 2023, between the Company, CERo Therapeutics, Inc. and PBCE Merger Sub, Inc., or approval of its shareholders to issue more than 4.9919.99% of the then issued and outstanding shares stock of Common Stock (the “Ownership Limitation”). If the Company issues a Draw Down Notice in which the Draw Down Amount Requested exceeds the Maximum Draw Down Amount Requested, such Draw Down Notice shall be void ab initio to the extent the Draw Down Amount Requested exceeds the Maximum Draw Down Amount Requested. If the Company issues a Draw Down Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor under this Agreement to exceed the Aggregate Limit, such Draw Down Notice shall be void ab initio to the extent as of the amount date hereof in connection with the transactions contemplated by which the dollar value of shares of Common Stock otherwise issuable pursuant to such Draw Down Notice, together with all Draw Down Amounts paid by the Investor pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate Limit. If the Company issues a Draw Down Notice that otherwise would require then the Investor shall have the option to purchase shares of Common Stock which would cause the aggregate number of shares of Common Stock then beneficially owned either receive such Commitment Shares issuable to it, or an amount in cash (as calculated pursuant to Section 13(din immediately available United States Dollars) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates to exceed the Ownership Limitation, such Draw Down Notice shall be void ab initio equal to the extent product of the amount by which the number of shares such Commitment Shares then issuable to Investor, multiplied by the greater of (1) the Closing Sale Price of the Common Stock otherwise issuable pursuant to such Draw Down Notice, together with all shares on the date preceding the date of this Agreement and (2) the Closing Sale Price of the Common Stock then beneficially owned by on the Investor and its Affiliates, would exceed date preceding the Ownership Limitationdate on which such Commitment Shares are due.

Certain Limitations. Notwithstanding anything to the contrary contained in this Agreement, in no event may the Company issue a Draw Down Fixed Request Notice to the extent that (i) the Draw Down Fixed Amount Requested in such Draw Down Fixed Request Notice exceeds the Maximum Draw Down Fixed Amount RequestedRequested determined in accordance with Section 3.2, (ii) the sale of Shares pursuant to such Draw Down Fixed Request Notice would cause the Company to issue or sell or the Investor to acquire or purchase (A) a dollar value of shares Common Stock which, when aggregated with all Fixed Request Amounts paid by the Investor pursuant to all prior Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit or (B) a number of shares of Common Stock which, when aggregated with all Draw Down Amounts paid Shares purchased by the Investor pursuant to all prior Draw Down Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, as the case may be, or (iii) the sale of Shares pursuant to such Draw Down Fixed Request Notice would cause the Company to sell or the Investor to purchase a number of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates, would result in the beneficial ownership by the Investor or any of its Affiliates of more than 4.999.9% of the then issued and outstanding shares of Common Stock (the “Ownership Limitation”). If the Company issues a Draw Down Fixed Request Notice in which the Draw Down Fixed Amount Requested exceeds the Maximum Draw Down Fixed Amount RequestedRequested determined in accordance with Section 3.2, such Draw Down Fixed Request Notice shall be void ab initio to the extent the Draw Down Fixed Amount Requested exceeds the Maximum Draw Down Fixed Amount Requested. If the Company issues a Draw Down Fixed Request Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor under this Agreement to exceed the Aggregate Limit, such Draw Down Fixed Request Notice shall be void ab initio to the extent of (x) the amount by which the dollar value of shares of Common Stock otherwise issuable pursuant to such Draw Down Fixed Request Notice, together with all Draw Down Fixed Request Amounts paid by the Investor pursuant to all prior Draw Down Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, or (y) the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Fixed Request Notice, together with all Shares purchased by the Investor pursuant to all prior Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, as the case may be. If the Company issues a Draw Down Fixed Request Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate number of shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates to exceed the Ownership Limitation, such Draw Down Fixed Request Notice shall be void ab initio to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Draw Down Fixed Request Notice, together with all shares of Common Stock then beneficially owned by the Investor and its Affiliates, would exceed the Ownership Limitation. The Company hereby represents, warrants and covenants that neither it nor any of its Subsidiaries (1) has effected any transaction or series of transactions, (2) is a party to any pending transaction or series of transactions or (3) shall enter into any contract, agreement, agreement-in-principle, arrangement or understanding with respect to, or shall effect, any Alternate Transaction which, in any of such cases, may be aggregated with the transactions contemplated by this Agreement for purposes of determining whether approval of the Company’s stockholders is required under any bylaw, listed securities maintenance standards or other rules of the Trading Market; provided, however, that the Company shall be permitted to take any action referred to in clause (3) above if (x) the Company has timely provided the Investor with an Aggregation Notice as provided in Section 6.7(ii) hereof and (y) unless the Investor has previously terminated this Agreement pursuant to Section 8.2, the Company obtains the requisite stockholder approval prior to the closing of such Alternate Transaction. The parties hereto hereby acknowledge and agree that the provisions of this Section 3.10 shall not be amended or waived under any circumstances.

Certain Limitations. Notwithstanding anything (a) Anything contained in this Agreement to the contrary contained in notwithstanding, each Principal Stockholder's total liability under this Agreement, in no event may Section 9 for any Losses incurred by the Company issue a Draw Down Notice to Howtek Parties shall not exceed the extent that lesser of (i) the Draw Down Amount Requested in sum of the aggregate market price of the Merger Consideration and the aggregate fair market value of the Options issued to such Draw Down Notice exceeds Principal Stockholder hereunder on the Maximum Draw Down Amount Requested, last trading day immediately prior to the Closing or (ii) the sale sum of Shares pursuant the aggregate market price of the Merger Consideration and the aggregate fair market value of the Options issued to such Draw Down Notice would cause Principal Stockholder hereunder on the Company last trading day immediately prior to issue the date that such Principal Stockholder receives a notice of a claim for indemnification in accordance with the provisions of Section 9.4 above, as the case may be (the "Cap"); provided, however, that the Cap shall be reduced by the amount of any capital gain tax paid or sell or payable by such Principal Stockholder with respect to any shares of Merger Consideration sold by such Principal Stockholder prior to the Investor to acquire or purchase date of a dollar claim for indemnification hereunder in the event that the sum of (1) the aggregate market price of such Merger Consideration held by such Stockholder on the date of such claim, (2) the fair market value of such Options (and any shares of Howtek Common Stock which, when aggregated with all Draw Down Amounts paid issued upon exercise of such Options) held by such Principal Stockholder on the Investor pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate Limit, or date of such claim and (iii3) the gross proceeds from the sale by such Principal Stockholder of Shares pursuant any Merger Consideration or Options (including any shares of Howtek Common Stock issued upon exercise of such Options), less the amount of capital gains tax paid or payable by such Principal Stockholder with respect to such Draw Down Notice would cause sale(s), is less than the Company to sell or the Investor to purchase a number of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates, would result in the beneficial ownership by the Investor or any of its Affiliates of more than 4.99% of the then issued and outstanding shares of Common Stock (the “Ownership Limitation”)Cap. If the Company issues a Draw Down Notice in which the Draw Down Amount Requested exceeds the Maximum Draw Down Amount Requested, Any such Draw Down Notice liability shall be void ab initio satisfied, at such Principal Stockholder's sole discretion, by (i) the payment of cash to the extent Howtek Parties and/or (ii) the Draw Down Amount Requested exceeds the Maximum Draw Down Amount Requested. If the Company issues a Draw Down Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor under this Agreement to exceed the Aggregate Limit, such Draw Down Notice shall be void ab initio return to the extent Howtek Parties of the an amount by which the dollar of Merger Consideration and/or Options having a fair market value equal to amount of shares of Common Stock otherwise issuable pursuant to such Draw Down Noticeliability, together with all Draw Down Amounts paid by the Investor pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate Limit. If the Company issues a Draw Down Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate number of shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates to exceed the Ownership Limitation, such Draw Down Notice shall be void ab initio subject to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Draw Down Notice, together with all shares of Common Stock then beneficially owned by the Investor and its Affiliates, would exceed the Ownership Limitationlimitations set forth in this subparagraph (a).

Certain Limitations. Notwithstanding anything to the contrary contained in this Agreement, in no event may the Company issue a Draw Down Fixed Request Notice to the extent that (i) the Draw Down Fixed Amount Requested in such Draw Down Fixed Request Notice exceeds the Maximum Draw Down Fixed Amount RequestedRequested determined in accordance with Section 3.2 (if the Company has not elected the Alternative Fixed Amount Requested in accordance with the provisions of Section 3.2 hereof), (ii) the sale of Shares pursuant to such Draw Down Fixed Request Notice would cause the Company to issue or sell or the Investor to acquire or purchase a dollar value of shares of Common Stock which, when aggregated with all Draw Down Fixed Request Amounts paid by the Investor pursuant to all prior Draw Down Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, or (iii) the sale of Shares pursuant to such Draw Down Fixed Request Notice would cause the Company to sell or the Investor to purchase a number of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates, would result in the beneficial ownership by the Investor or any of its Affiliates of more than 4.999.9% of the then issued and outstanding shares of Common Stock (the “Ownership Limitation”). If the Company issues a Draw Down Fixed Request Notice in which the Draw Down Fixed Amount Requested exceeds the Maximum Draw Down Fixed Amount RequestedRequested determined in accordance with Section 3.2 (if the Company has not elected the Alternative Fixed Amount Requested in accordance with the provisions of Section 3.2 hereof), such Draw Down Fixed Request Notice shall be void ab initio to the extent the Draw Down Fixed Amount Requested exceeds the Maximum Draw Down Fixed Amount Requested. If the Company issues a Draw Down Fixed Request Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor under this Agreement to exceed the Aggregate Limit, such Draw Down Fixed Request Notice shall be void ab initio to the extent of the amount by which the dollar value of shares of Common Stock otherwise issuable pursuant to such Draw Down Fixed Request Notice, together with all Draw Down Fixed Request Amounts paid by the Investor pursuant to all prior Draw Down Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit. If the Company issues a Draw Down Fixed Request Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate number of shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates to exceed the Ownership Limitation, such Draw Down Fixed Request Notice shall be void ab initio to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Draw Down Fixed Request Notice, together with all shares of Common Stock then beneficially owned by the Investor and its Affiliates, would exceed the Ownership Limitation.

Certain Limitations. Notwithstanding anything to the contrary contained in this Agreement, in no event may the Company issue a Draw Down Fixed Request Notice to the extent that (i) the Draw Down Fixed Amount Requested in such Draw Down Fixed Request Notice exceeds the Maximum Draw Down Fixed Amount RequestedRequested determined in accordance with Section 3.2 (if the Company has not elected the Alternative Fixed Amount Requested in accordance with the provisions of Section 3.2 hereof), (ii) the sale of Shares pursuant to such Draw Down Fixed Request Notice would cause the Company to issue or sell or the Investor to acquire or purchase (A) a dollar value of shares of Common Stock which, when aggregated with all Draw Down Fixed Request Amounts paid by the Investor pursuant to all prior Draw Down Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, (B) a number of shares of Common Stock which, when aggregated with all Shares purchased or acquired by the Investor pursuant to all prior Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, or (C) a number of shares of Common Stock that would exceed the Single Fixed Request Limit (taking into account all shares of Common Stock or Class B Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by such Fixed Request Notice under applicable rules of the Trading Market), or (iii) the sale of Shares pursuant to such Draw Down Fixed Request Notice would cause the Company to sell or the Investor to purchase a number of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates, would result in the beneficial ownership by the Investor or any of its Affiliates of more than 4.999.9% of the then issued and outstanding shares of Common Stock (the “Ownership Limitation”). The Exchange Cap and the Single Fixed Request Limit shall not be applicable for any purposes of this Agreement or the transactions contemplated hereby if the stockholders of the Company have approved the transactions contemplated by this Agreement in accordance with the applicable rules and regulations of the Trading Market and the Charter and Bylaws of the Company. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the transactions contemplated by this Agreement; provided, that if stockholder approval of the transactions contemplated hereby is not obtained, each of the Exchange Cap and the Single Fixed Request Limit shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement. If the Company issues a Draw Down Fixed Request Notice in which the Draw Down Fixed Amount Requested exceeds the Maximum Draw Down Fixed Amount RequestedRequested determined in accordance with Section 3.2 (if the Company has not elected the Alternative Fixed Amount Requested in accordance with the provisions of Section 3.2 hereof), such Draw Down Fixed Request Notice shall be void ab initio to the extent the Draw Down Fixed Amount Requested exceeds the Maximum Draw Down Fixed Amount Requested. If the Company issues a Draw Down Fixed Request Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor under this Agreement to exceed the Aggregate Limit, such Draw Down Fixed Request Notice shall be void ab initio to the extent of (x) the amount by which the dollar value of shares of Common Stock otherwise issuable pursuant to such Draw Down Fixed Request Notice, together with all Draw Down Fixed Request Amounts paid by the Investor pursuant to all prior Draw Down Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, or (y) the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Fixed Request Notice, together with all Shares purchased by the Investor pursuant to all prior Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, as the case may be. If the Company issues a Draw Down Fixed Request Notice that otherwise would require the Investor to purchase shares of Common Stock which when aggregated with all other shares of Common Stock and Class B Common Stock issued or sold pursuant to any transaction or series of transactions that would be aggregated for purposes of determining whether approval of the Company’s stockholders is required under any bylaw, listed securities maintenance standards or other rules of the Trading Market would exceed the Single Fixed Request Limit, such Fixed Request Notice shall be void ab initio to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Fixed Request Notice, together with all shares of Common Stock and Class B Common Stock issued pursuant to all such other aggregated transactions, would exceed the Single Fixed Request Limit. If the Company issues a Fixed Request Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate number of shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates to exceed the Ownership Limitation, such Draw Down Fixed Request Notice shall be void ab initio to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Draw Down Fixed Request Notice, together with all shares of Common Stock then beneficially owned by the Investor and its Affiliates, would exceed the Ownership Limitation. The Company hereby represents, warrants and covenants that neither it nor any of its Subsidiaries (1) has effected any transaction or series of transactions, (2) is a party to any pending transaction or series of transactions or (3) shall enter into any contract, agreement, agreement-in-principle, arrangement or understanding with respect to, or shall effect, any Alternate Transaction which, in any of such cases, may be aggregated with the transactions contemplated by this Agreement for purposes of determining whether approval of the Company’s stockholders is required under any bylaw, listed securities maintenance standards or other rules of the Trading Market; provided, however, that the Company shall be permitted to take any action referred to in clause (3) above if (x) the Company has timely provided the Investor with an Aggregation Notice as provided in Section 6.7(ii) hereof and (y) unless the Investor has previously terminated this Agreement pursuant to Section 8.2, the Company obtains the requisite stockholder approval prior to the closing of such Alternate Transaction.

Certain Limitations. Notwithstanding anything to the contrary contained in this Agreement, in no event may the Company issue a Draw Down Fixed Request Notice to the extent that (i) the Draw Down Fixed Amount Requested in such Draw Down Fixed Request Notice exceeds the Maximum Draw Down Fixed Amount RequestedRequested determined in accordance with Section 3.2 (if the Company has not elected the Alternative Fixed Amount Requested in accordance with the provisions of Section 3.2 hereof), (ii) the sale of Shares pursuant to such Draw Down Fixed Request Notice would cause the Company to issue or sell or the Investor to acquire or purchase (A) a dollar value of shares of Common Stock which, when aggregated with all Draw Down Fixed Request Amounts paid by the Investor pursuant to all prior Draw Down Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, (B) a number of shares of Common Stock which, when aggregated with all Shares purchased by the Investor pursuant to all prior Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, or (C) a number of shares of Common Stock which, when aggregated with (x) all shares of Common Stock issued or sold pursuant to this Agreement or the Prior Agreement within the six-month period immediately preceding the sale of such Shares and (y) all other shares of Common Stock issued or sold pursuant to any transaction or series of transactions during the Investment Period preceding the sale of such Shares that would be aggregated with the transactions contemplated by the applicable Fixed Request Notice for purposes of determining whether approval of the Company’s stockholders is required under any bylaw, listed securities maintenance standards or other rules of the Trading Market (including, without limitation, any issuances or sales of Common Stock pursuant to any Alternate Transaction), would exceed that number of shares which is one less than 20.0% of the issued and outstanding shares of Common Stock as of the date immediately prior to the earliest of such issuance or sale (the “Single Fixed Request Trading Market Limit”), or (iii) the sale of Shares pursuant to such Draw Down Fixed Request Notice would cause the Company to sell or the Investor to purchase a number of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates, would result in the beneficial ownership by the Investor or any of its Affiliates of more than 4.999.9% of the then issued and outstanding shares of Common Stock (the “Ownership Limitation”). If the Company issues a Draw Down Fixed Request Notice in which the Draw Down Fixed Amount Requested exceeds the Maximum Draw Down Fixed Amount RequestedRequested determined in accordance with Section 3.2 (if the Company has not elected the Alternative Fixed Amount Requested in accordance with the provisions of Section 3.2 hereof), such Draw Down Fixed Request Notice shall be void ab initio to the extent the Draw Down Fixed Amount Requested exceeds the Maximum Draw Down Fixed Amount Requested. If the Company issues a Draw Down Fixed Request Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor under this Agreement to exceed the Aggregate Limit, such Draw Down Fixed Request Notice shall be void ab initio to the extent of (x) the amount by which the dollar value of shares of Common Stock otherwise issuable pursuant to such Draw Down Fixed Request Notice, together with all Draw Down Fixed Request Amounts paid by the Investor pursuant to all prior Draw Down Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, or (y) the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Fixed Request Notice, together with all Shares purchased by the Investor pursuant to all prior Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, as the case may be. If the Company issues a Draw Down Fixed Request Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor pursuant to any transaction or series of transactions that would be aggregated for purposes of determining whether approval of the Company’s stockholders is required under any bylaw, listed securities maintenance standards or other rules of the Trading Market to exceed the Single Fixed Request Trading Market Limit, such Fixed Request Notice shall be void ab initio to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Fixed Request Notice, together with all shares of Common Stock purchased by the Investor pursuant to all such other aggregated transactions, would exceed the Single Fixed Request Trading Market Limit. If the Company issues a Fixed Request Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate number of shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates to exceed the Ownership Limitation, such Draw Down Fixed Request Notice shall be void ab initio to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Draw Down Fixed Request Notice, together with all shares of Common Stock then beneficially owned by the Investor and its Affiliates, would exceed the Ownership Limitation. The Company hereby represents, warrants and covenants that neither it nor any of its Subsidiaries (1) has effected any transaction or series of transactions, (2) is a party to any pending transaction or series of transactions or (3) shall enter into any contract, agreement, agreement-in-principle, arrangement or understanding with respect to, or shall effect, any Alternate Transaction which, in any of such cases, may be aggregated with the transactions contemplated by this Agreement for purposes of determining whether approval of the Company’s stockholders is required under any bylaw, listed securities maintenance standards or other rules of the Trading Market; provided, however, that the Company shall be permitted to take any action referred to in clause (3) above if (x) the Company has timely provided the Investor with an Aggregation Notice as provided in Section 6.7(ii) hereof and (y) unless the Investor has previously terminated this Agreement pursuant to Section 8.2, the Company obtains the requisite stockholder approval prior to the closing of such Alternate Transaction. The parties hereto hereby acknowledge and agree that the provisions of this Section 3.10 shall not be amended or waived under any circumstances.

Certain Limitations. Notwithstanding anything (a) The amount which an Indemnifying Party is or may be required to pay to an Indemnified Party in respect of Damages for which indemnification is provided under this insurance policies) by or on behalf of the Indemnified Party from third parties (net of out-of-pocket costs and expenses (including reasonable legal fees and expenses) incurred by such Indemnified Party in connection with seeking to collect and collecting such amounts), in respect of such Damages (such net amounts are referred to herein as “Indemnity Reduction Amounts”). If any Indemnified Party receives any Indemnity Reduction Amounts in respect of an Indemnified Claim for which indemnification is provided under this Agreement after the full amount of such Indemnified Claim has been paid by an Indemnifying Party or after an Indemnifying Party has made a partial payment of such Indemnified Claim and such Indemnity Reduction Amounts exceed the remaining unpaid balance of such Indemnified Claim, then the Indemnified Party will promptly remit to the contrary contained in this Agreement, in no event may the Company issue a Draw Down Notice Indemnifying Party an amount equal to the extent that excess (if any) of (i) the Draw Down Amount Requested amount theretofore paid by the Indemnifying Party in respect of such Draw Down Notice exceeds the Maximum Draw Down Amount Requested, Indemnified Claim less (ii) the sale amount of Shares pursuant the indemnity payment that would have been due if such Indemnity Reduction Amounts in respect thereof had been received before the indemnity payment was made. An insurer or other third party who would otherwise be obligated to such Draw Down Notice pay any claim shall not be relieved of the responsibility with respect thereto or, solely by virtue of the indemnification provisions hereof, have any subrogation rights with respect thereto, it being expressly understood and agreed that no insurer or any other third party shall be entitled to any benefit they would not be entitled to receive in the absence of the indemnification provisions by virtue of the indemnification provisions hereof. The Seller and the Buyer will, and will use Commercially Reasonable Efforts to cause their respective representatives to, pursue promptly any claims or rights it may have against all third parties which would reduce the Company to issue or sell or the Investor to acquire or purchase a dollar value amount of shares of Common Stock which, when aggregated with all Draw Down Amounts paid by the Investor pursuant to all prior Draw Down Notices issued Damages for which indemnification is provided under this Agreement, would exceed the Aggregate Limit, or (iii) the sale of Shares pursuant to such Draw Down Notice would cause the Company to sell or the Investor to purchase a number of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates, would result in the beneficial ownership by the Investor or any of its Affiliates of more than 4.99% of the then issued and outstanding shares of Common Stock (the “Ownership Limitation”). If the Company issues a Draw Down Notice in which the Draw Down Amount Requested exceeds the Maximum Draw Down Amount Requested, such Draw Down Notice shall be void ab initio to the extent the Draw Down Amount Requested exceeds the Maximum Draw Down Amount Requested. If the Company issues a Draw Down Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor under this Agreement to exceed the Aggregate Limit, such Draw Down Notice shall be void ab initio to the extent of the amount by which the dollar value of shares of Common Stock otherwise issuable pursuant to such Draw Down Notice, together with all Draw Down Amounts paid by the Investor pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate Limit. If the Company issues a Draw Down Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate number of shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates to exceed the Ownership Limitation, such Draw Down Notice shall be void ab initio to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Draw Down Notice, together with all shares of Common Stock then beneficially owned by the Investor and its Affiliates, would exceed the Ownership Limitation.

Certain Limitations. Notwithstanding anything to the contrary contained in this Agreement, in no event may the Company issue a Draw Down Fixed Request Notice to the extent that (i) the Draw Down Fixed Amount Requested in such Draw Down Fixed Request Notice exceeds the Maximum Draw Down Fixed Amount RequestedRequested determined in accordance with Section 3.2 (if the Company has not elected the Alternative Fixed Amount Requested in accordance with the provisions of Section 3.2 hereof), (ii) the sale of Shares pursuant to such Draw Down Fixed Request Notice would cause the Company to issue or sell or the Investor to acquire or purchase (A) a dollar value of shares of Common Stock (based on the applicable Discount Price actually paid by the Investor to the Company for such Shares) which, when aggregated with all Fixed Request Amounts paid by the Investor pursuant to all prior Fixed Request Notices issued under this Agreement, would exceed the Total Commitment, (B) a number of shares of Common Stock which, when aggregated with all Draw Down Amounts paid Shares purchased or acquired by the Investor pursuant to all prior Draw Down Fixed Request Notices issued under this Agreement, would exceed the Aggregate LimitLimit described in Section 2.1(ii), or (C) a number of shares of Common Stock that would exceed the Single Fixed Request Limit (taking into account all shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by such Fixed Request Notice under applicable rules of the Trading Market), or (iii) the sale of Shares pursuant to such Draw Down Fixed Request Notice would cause the Company to sell or the Investor to purchase a number of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates, would result in the beneficial ownership by the Investor or any of its Affiliates of more than 4.999.9% of the then issued and outstanding shares of Common Stock (the “Ownership Limitation”). The Exchange Cap and the Single Fixed Request Limit shall not be applicable for any purposes of this Agreement or the transactions contemplated hereby if the stockholders of the Company have approved the transactions contemplated by this Agreement in accordance with the applicable rules and regulations of the NASDAQ Stock Market and the Charter and Bylaws of the Company. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the transactions contemplated by this Agreement; provided, that if stockholder approval of the transactions contemplated hereby is not obtained, each of the Exchange Cap and the Single Fixed Request Limit shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 3.11 below). If the Company issues a Draw Down Fixed Request Notice in which the Draw Down Fixed Amount Requested exceeds the Maximum Draw Down Fixed Amount RequestedRequested determined in accordance with Section 3.2 (if the Company has not elected the Alternative Fixed Amount Requested in accordance with the provisions of Section 3.2 hereof), such Draw Down Fixed Request Notice shall be void ab initio but only to the extent the Draw Down Fixed Amount Requested exceeds the Maximum Draw Down Fixed Amount Requested. If the Company issues a Draw Down Fixed Request Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor under this Agreement to exceed the Aggregate Limit, such Draw Down Fixed Request Notice shall be void ab initio to the extent of (x) the amount by which the dollar value of shares of Common Stock otherwise issuable pursuant to such Draw Down NoticeFixed Request Notice (based on the applicable Discount Price actually paid by the Investor to the Company for such Shares), together with all Draw Down Fixed Request Amounts paid by the Investor pursuant to all prior Draw Down Fixed Request Notices issued under this Agreement, would exceed the Total Commitment, or (y) the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Fixed Request Notice, together with all Shares purchased by the Investor pursuant to all prior Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit described in Section 2.1(ii), as the case may be. If the Company issues a Fixed Request Notice that otherwise would require the Investor to purchase shares of Common Stock which when aggregated with all other shares of Common Stock issued or sold pursuant to any transaction or series of transactions that would be aggregated for purposes of determining whether approval of the Company’s stockholders is required under any bylaw, listed securities maintenance standards or other rules of the NASDAQ Stock Market would exceed the Single Fixed Request Limit, such Fixed Request Notice shall be void ab initio but only to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Fixed Request Notice, together with all shares of Common Stock issued pursuant to all such other aggregated transactions, would exceed the Single Fixed Request Limit. If the Company issues a Draw Down Fixed Request Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate number of shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates to exceed the Ownership Limitation, such Draw Down Fixed Request Notice shall be void ab initio but only to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Draw Down Fixed Request Notice, together with all shares of Common Stock then beneficially owned by the Investor and its Affiliates, would exceed the Ownership Limitation. The Company hereby represents, warrants and covenants that neither it nor any of its Subsidiaries (1) has effected any transaction or series of transactions, (2) is a party to any pending transaction or series of transactions or (3) shall enter into any contract, agreement, agreement-in-principle, arrangement or understanding with respect to, or shall effect, any Alternate Transaction which, in any of such cases, may be aggregated with the transactions previously completed under this Agreement for purposes of determining whether approval of the Company’s stockholders is required under any bylaw, listed securities maintenance standards or other rules of the NASDAQ Stock Market; provided, however, that the Company shall be permitted to take any action referred to in clause (3) above if (x) the Company has timely provided the Investor with an Aggregation Notice as provided in Section 6.7(ii) hereof and (y) unless the Investor has previously terminated this Agreement pursuant to Section 8.2, the Company obtains the requisite stockholder approval prior to the closing of such Alternate Transaction.

Certain Limitations. Notwithstanding anything to the contrary contained in this Agreement, in no event may the Company issue a Draw Down Fixed Request Notice to the extent that (i) the Draw Down Fixed Amount Requested in such Draw Down Fixed Request Notice exceeds the Maximum Draw Down Fixed Amount RequestedRequested determined in accordance with Section 3.2 (if the Company has not elected the Alternative Fixed Amount Requested in accordance with the provisions of Section 3.2 hereof), (ii) the sale of Shares pursuant to such Draw Down Fixed Request Notice would cause the Company to issue or sell or the Investor to acquire or purchase a dollar value or number of shares of Common Stock which, when aggregated with all Draw Down Fixed Request Amounts paid by the Investor pursuant to all prior Draw Down Fixed Request Notices issued under this Agreement, would exceed the Total Commitment or the Aggregate Limit, or (iii) the sale of Shares pursuant to such Draw Down Fixed Request Notice would cause the Company to sell or the Investor to purchase a aggregate number of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates, would result in Affiliates to exceed the beneficial ownership by the Investor or any of its Affiliates of more than 4.99% of the then issued and outstanding shares of Common Stock (the “Ownership Limitation”). If the Company issues a Draw Down Fixed Request Notice in which the Draw Down Fixed Amount Requested exceeds the Maximum Draw Down Fixed Amount RequestedRequested determined in accordance with Section 3.2 (if the Company has not elected the Alternative Fixed Amount Requested in accordance with the provisions of Section 3.2 hereof), such Draw Down Fixed Request Notice shall be void ab initio but only to the extent the Draw Down Fixed Amount Requested exceeds the Maximum Draw Down Fixed Amount Requested. If the Company issues a Draw Down Fixed Request Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor under this Agreement to exceed the Aggregate Limit, such Draw Down Notice shall be void ab initio to the extent of the amount by which the dollar value of shares of Common Stock otherwise issuable pursuant to such Draw Down Notice, together with all Draw Down Amounts paid by the Investor pursuant to all prior Draw Down Notices issued under this Agreement, would exceed the Aggregate Limit. If the Company issues a Draw Down Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate number of shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates to exceed the Ownership Limitation, such Draw Down Fixed Request Notice shall be void ab initio but only to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Draw Down Fixed Request Notice, together with all shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates, would exceed the Ownership Limitation. If the Company issues a Fixed Request Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor under this Agreement to exceed the Total Commitment or the Aggregate Limit, such Fixed Request Notice shall be void ab initio but only to the extent of (x) the amount by which the dollar value of shares of Common Stock otherwise issuable pursuant to such Fixed Request Notice, together with all Fixed Request Amounts paid by the Investor pursuant to all prior Fixed Request Notices issued under this Agreement, would exceed the Total Commitment, or (y) the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Fixed Request Notice, together with all Shares purchased by the Investor pursuant to all prior Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, respectively.

Certain Limitations. Notwithstanding anything to the contrary contained in this Agreement, in no event may the Company (a) issue a Draw Down Fixed Request Notice to the extent that the Fixed Amount Requested in such Fixed Request Notice exceeds $5,000,000, if the Company has elected a Fixed Request Option in accordance with Section 3.2, or (b) issue any Fixed Request Notice to the extent that (i) the Draw Down Fixed Amount Requested in such Draw Down Fixed Request Notice exceeds the Maximum Draw Down Fixed Amount RequestedRequested determined in accordance with Section 3.2 (provided the Company has not elected the Alternative Fixed Amount Requested or a Fixed Request Option in accordance with the provisions of Section 3.2 hereof), (ii) the sale of Shares pursuant to such Draw Down Fixed Request Notice would cause the Company to issue or sell or the Investor to acquire or purchase (A) a dollar value of shares Common Stock which, when aggregated with all Fixed Request Amounts paid by the Investor pursuant to all prior Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, (B) a number of shares of Common Stock which, when aggregated with all Draw Down Amounts paid Shares purchased by the Investor pursuant to all prior Draw Down Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, or (C) a number of shares of Common Stock which, when aggregated with (x) all shares of Common Stock issued or sold pursuant to this Agreement or the Prior Agreement within the six-month period immediately preceding the sale of such Shares and (y) all other shares of Common Stock issued or sold pursuant to any transaction or series of transactions during the Investment Period preceding the sale of such Shares that would be aggregated with the transactions contemplated by the applicable Fixed Request Notice for purposes of determining whether approval of the Company’s stockholders is required under any bylaw, listed securities maintenance standards or other rules of the Trading Market (including, without limitation, any issuances or sales of Common Stock pursuant to any Alternate Transaction), would exceed that number of shares which is one less than 20.0% of the issued and outstanding shares of Common Stock as of the date immediately prior to the earliest of such issuance or sale (the “Single Fixed Request Trading Market Limit”), or (iii) the sale of Shares pursuant to such Draw Down Fixed Request Notice would cause the Company to sell or the Investor to purchase a number of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates, would result in the beneficial ownership by the Investor or any of its Affiliates of more than 4.999.9% of the then issued and outstanding shares of Common Stock (the “Ownership Limitation”). If the Company elects a Fixed Request Option and issues a Draw Down Fixed Request Notice in which the Draw Down Fixed Amount Requested exceeds the Maximum Draw Down Amount Requested$5,000,000, such Draw Down Fixed Request Notice shall be void ab initio to the extent the Draw Down Fixed Amount Requested exceeds $5,000,000. If the Company issues any Fixed Request Notice in which the Fixed Amount Requested exceeds the Maximum Draw Down Fixed Amount Requested determined in accordance with Section 3.2 (provided the Company has not elected the Alternative Fixed Amount Requested or a Fixed Request Option in accordance with the provisions of Section 3.2 hereof), such Fixed Request Notice shall be void ab initio to the extent the Fixed Amount Requested exceeds the Maximum Fixed Amount Requested. If the Company issues a Draw Down any Fixed Request Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor under this Agreement to exceed the Aggregate Limit, such Draw Down Fixed Request Notice shall be void ab initio to the extent of (x) the amount by which the dollar value of shares of Common Stock otherwise issuable pursuant to such Draw Down Fixed Request Notice, together with all Draw Down Fixed Request Amounts paid by the Investor pursuant to all prior Draw Down Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, or (y) the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Fixed Request Notice, together with all Shares purchased by the Investor pursuant to all prior Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, as the case may be. If the Company issues a Draw Down Fixed Request Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor pursuant to any transaction or series of transactions that would be aggregated for purposes of determining whether approval of the Company’s stockholders is required under any bylaw, listed securities maintenance standards or other rules of the Trading Market to exceed the Single Fixed Request Trading Market Limit, such Fixed Request Notice shall be void ab initio to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Fixed Request Notice, together with all shares of Common Stock purchased by the Investor pursuant to all such other aggregated transactions, would exceed the Single Fixed Request Trading Market Limit. If the Company issues a Fixed Request Notice that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate number of shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates to exceed the Ownership Limitation, such Draw Down Fixed Request Notice shall be void ab initio to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Draw Down Fixed Request Notice, together with all shares of Common Stock then beneficially owned by the Investor and its Affiliates, would exceed the Ownership Limitation. The Company hereby represents, warrants and covenants that, except pursuant to the Prior Agreement, neither it nor any of its Subsidiaries (1) has effected any transaction or series of transactions, (2) is a party to any pending transaction or series of transactions or (3) shall enter into any contract, agreement, agreement-in-principle, arrangement or understanding with respect to, or shall effect, any Alternate Transaction which, in any of such cases, may be aggregated with the transactions contemplated by this Agreement for purposes of determining whether approval of the Company’s stockholders is required under any bylaw, listed securities maintenance standards or other rules of the Trading Market; provided, however, that the Company shall be permitted to take any action referred to in clause (3) above if (x) the Company has timely provided the Investor with an Aggregation Notice as provided in Section 6.7(ii) hereof and (y) unless the Investor has previously terminated this Agreement pursuant to Section 8.2, the Company obtains the requisite stockholder approval prior to the closing of such Alternate Transaction. The parties hereto hereby acknowledge and agree that the provisions of this Section 3.10 shall not be amended or waived under any circumstances.

Certain Limitations. Notwithstanding anything to the contrary contained in this Agreement, in no event may the Company (a) issue a Draw Down first Fixed Request Notice to the extent that the Fixed Amount Requested in such first Fixed Request Notice exceeds $12,500,000, if the Company has elected the First Fixed Request Option in accordance with Section 3.2, or (b) issue any Fixed Request Notice (including, without limitation, the first Fixed Request Notice) to the extent that (i) the Draw Down Fixed Amount Requested in such Draw Down Fixed Request Notice exceeds the Maximum Draw Down Fixed Amount RequestedRequested determined in accordance with Section 3.2 (provided the Company has not elected the Alternative Fixed Amount Requested in accordance with the provisions of Section 3.2 hereof and, with respect to the first Fixed Request Notice, provided the Company has not elected the First Fixed Request Option), (ii) the sale of Shares pursuant to such Draw Down Fixed Request Notice would cause the Company to issue or sell or the Investor to acquire or purchase (A) a dollar value of shares Common Stock which, when aggregated with all Fixed Request Amounts paid by the Investor pursuant to all prior Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit or (B) a number of shares of Common Stock which, when aggregated with all Draw Down Amounts paid Shares purchased by the Investor pursuant to all prior Draw Down Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, as the case may be, or (iii) the sale of Shares pursuant to such Draw Down Fixed Request Notice would cause the Company to sell or the Investor to purchase a number of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates, would result in the beneficial ownership by the Investor or any of its Affiliates of more than 4.999.9% of the then issued and outstanding shares of Common Stock (the “Ownership Limitation”). If the Company elects the First Fixed Request Option and issues a Draw Down first Fixed Request Notice in which the Draw Down Fixed Amount Requested exceeds the Maximum Draw Down Amount Requested$12,500,000, such Draw Down first Fixed Request Notice shall be void ab initio to the extent the Draw Down Fixed Amount Requested exceeds $12,500,000. If the Company issues any Fixed Request Notice (including, without limitation, the first Fixed Request Notice) in which the Fixed Amount Requested exceeds the Maximum Draw Down Fixed Amount Requested determined in accordance with Section 3.2 (provided the Company has not elected the Alternative Fixed Amount Requested in accordance with the provisions of Section 3.2 hereof and, with respect to the first Fixed Request Notice, provided the Company has not elected the First Fixed Request Option), such Fixed Request First Notice shall be void ab initio to the extent the Fixed Amount Requested exceeds the Maximum Fixed Amount Requested. If the Company issues a Draw Down any Fixed Request Notice (including, without limitation, the first Fixed Request Notice) that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate purchases of Common Stock by the Investor under this Agreement to exceed the Aggregate Limit, such Draw Down Fixed Request Notice shall be void ab initio to the extent of (x) the amount by which the dollar value of shares of Common Stock otherwise issuable pursuant to such Draw Down Fixed Request Notice, together with all Draw Down Fixed Request Amounts paid by the Investor pursuant to all prior Draw Down Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, or (y) the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Fixed Request Notice, together with all Shares purchased by the Investor pursuant to all prior Fixed Request Notices issued under this Agreement, would exceed the Aggregate Limit, as the case may be. If the Company issues a Draw Down Fixed Request Notice (including, without limitation, the first Fixed Request Notice) that otherwise would require the Investor to purchase shares of Common Stock which would cause the aggregate number of shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its Affiliates to exceed the Ownership Limitation, such Draw Down Fixed Request Notice shall be void ab initio to the extent of the amount by which the number of shares of Common Stock otherwise issuable pursuant to such Draw Down Fixed Request Notice, together with all shares of Common Stock then beneficially owned by the Investor and its Affiliates, would exceed the Ownership Limitation. The Company hereby represents, warrants and covenants that neither it nor any of its Subsidiaries (1) has effected any transaction or series of transactions, (2) is a party to any pending transaction or series of transactions or (3) shall enter into any contract, agreement, agreement-in-principle, arrangement or understanding with respect to, or shall effect, any Alternate Transaction which, in any of such cases, may be aggregated with the transactions contemplated by this Agreement for purposes of determining whether approval of the Company’s stockholders is required under any bylaw, listed securities maintenance standards or other rules of the Trading Market; provided, however, that the Company shall be permitted to take any action referred to in clause (3) above if (x) the Company has timely provided the Investor with an Aggregation Notice as provided in Section 6.7(ii) hereof and (y) unless the Investor has previously terminated this Agreement pursuant to Section 8.2, the Company obtains the requisite stockholder approval prior to the closing of such Alternate Transaction. The parties hereto hereby acknowledge and agree that the provisions of this Section 3.10 shall not be amended or waived under any circumstances.