Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of a percentage set at the discretion of each Holder between 0% and 19.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise. The initial Maximum Percentage is [•]%. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 2 contracts

Sources: Warrant Agreement (Ovid Therapeutics Inc.), Warrant Agreement (Ovid Therapeutics Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the ~~Company shall not effect the exercise~~ number of ~~any portion of this Warrant, and~~ Warrant Shares that may be acquired by the Holder upon any exercise of this Warrant ~~shall not have the right to exercise any portion of the Warrant, and any such exercise~~ (or otherwise in respect hereof) shall be ~~null and void ab initio and treated as if the exercise had not been made,~~ limited to the extent ~~that immediately prior~~ necessary to or insure that, following such ~~exercise~~exercise (or other issuance), the ~~Holder, together~~ total number of shares of Common Stock then beneficially owned by such Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the ~~Attribution Parties~~Holder’s for purposes of Section 13(d) of the Exchange Act, ~~beneficially owns or would beneficially own as~~ does not exceed 4.9% of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock issuable upon such exercise). For such purposes, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules ~~promulgated thereunder, in excess of a percentage set at the discretion of each Holder between 0%~~ and 19.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise. The initial Maximum Percentage is [•]%. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules regulations promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This ~~Section 11~~ provision shall not restrict the number of shares of Common Stock which a Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section ~~9(c)~~ 9 of this Warrant. ~~For~~ By written notice to the Company, an Investor may waive the provisions of this Section 11(a) as to itself but any such waiver will not be effective until the 61st day after delivery thereof and such waiver shall have no effect on any other Investor. (b) Notwithstanding anything to the contrary contained herein, the number of Warrant Shares that may be acquired by the Holder upon any exercise of this Warrant (or otherwise in respect hereof) shall be limited to the extent necessary to insure that, following such exercise (or other issuance), the total number of shares of Common Stock then beneficially owned by such Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of ~~clarity~~Section 13(d) of the Exchange Act, does not exceed 9.9% of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock issuable ~~pursuant to the terms of this Warrant~~ upon such exercise). For such purposes, beneficial ownership shall be determined in ~~excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of~~ accordance with Section 13(d) of the Exchange Act and the rules ~~promulgated thereunder or Section 16 of the Exchange Act~~ and ~~the rules~~ regulations promulgated thereunder~~, including Rule 16a-1(a)(1)~~. ~~No prior inability~~ This provision shall not restrict the number of shares of Common Stock which a Holder may receive or beneficially own in order to ~~exercise this Warrant pursuant to this paragraph shall have any effect on~~ determine the ~~applicability~~ amount of securities or other consideration that such Holder may receive in the ~~provisions~~ event of a Fundamental Transaction as contemplated in Section 9 of this ~~paragraph with respect to any subsequent determination of exercisability~~Warrant. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph This restriction may not be ~~waived and shall apply to a successor holder of this Warrant~~waived.

Appears in 2 contracts

Sources: Securities Agreement (Uroplasty Inc), Securities Agreement (Uroplasty Inc)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99%~~ [4.99%] [9.99%]1 (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties ~~plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made~~ but shall exclude the number of shares of Common Stock which would be issuable upon ~~(i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii)~~ exercise or conversion of the unexercised or unconverted portion of any ~~other~~ securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, this Warrant and any convertible notes, convertible stock or other warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this ~~Paragraph 11(a~~Section 9(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one ~~Trading Day~~ business day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section ~~11(a~~9(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of ~~Common Stock~~ Warrant Shares to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of ~~shares~~ Warrant Shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum 1 Will be the percentage indicated by each Holder prior to closing. Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 9 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section ~~9(c~~8(c) of this Warrant. For purposes of clarity, the ~~shares of Common Stock~~ Warrant Shares issuable pursuant to the terms of this Warrant that would cause the Holder to beneficially own shares of Common Stock in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 9 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 9 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 2 contracts

Sources: Warrant Agreement (SAB Biotherapeutics, Inc.), Warrant Agreement (SAB Biotherapeutics, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the ~~Company shall not effect the exercise~~ number of ~~any portion~~ shares of ~~this Warrant, and~~ Common Stock that may be acquired by the Holder upon any exercise of this Warrant ~~shall not have the right to exercise any portion of the Warrant, and any such exercise~~ (or otherwise in respect hereof) shall be ~~null and void ab initio and treated as if the exercise had not been made,~~ limited to the extent ~~that immediately prior~~ necessary to or insure that, following such ~~exercise~~exercise (or other issuance), the ~~Holder, together~~ total number of shares of Common Stock then beneficially owned by such Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the ~~Attribution Parties~~Holder's for purposes of Section 13(d) of the Exchange Act, ~~beneficially owns or would beneficially own as~~ does not exceed 4.999% (the "5% MAXIMUM PERCENTAGE") of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock issuable upon such exercise). For such purposes, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder~~, in excess of a percentage set at the discretion of each Holder between 0% and 19.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The ~~initial Maximum Percentage is [•]%. For purposes~~ Company shall, instead of ~~calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of~~ issuing shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise in excess of the ~~relevant Warrant with respect~~ limitation referred to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), suspend its obligation to ~~exceed~~ issue shares in excess of the ~~Maximum Percentage~~foregoing limitation until such time, ~~the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to~~ if any, as such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock ~~shall~~ may be ~~determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant~~issued in compliance with such limitation. Additionally, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a the Holder may waive the provisions of this ~~Warrant may from time to time~~ Section 11(a) or increase or decrease the 5% Maximum Percentage to any other percentage ~~not in excess of 19.99%~~ specified in such notice; ~~provided~~ provided, that (i) any such waiver or increase ~~in the Maximum Percentage~~ or decrease will not be effective until the 61st day after such notice is delivered to the ~~Company~~ Company, and ~~shall~~ (ii) any such waiver or increase or decrease will apply only to the Holder and not ~~negatively affect~~ to any ~~partial exercise effected prior to such change~~other holder of Warrants. (b) Notwithstanding anything to the contrary contained herein and regardless of whether the restrictions contained in Section 11(a) are waived as provided therein, the number of shares of Common Stock that may be acquired by the Holder upon any exercise of this Warrant (or otherwise in respect hereof) shall be limited to the extent necessary to insure that, following such exercise (or other issuance), the total number of shares of Common Stock then beneficially owned by such Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder's for purposes of Section 13(d) of the Exchange Act, does not exceed 9.999% (the "10% MAXIMUM PERCENTAGE") of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock issuable upon such exercise). For such purposes, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. The Company shall, instead of issuing shares of Common Stock in excess of the limitation referred to in this Section 11(b), suspend its obligation to issue shares in excess of the foregoing limitation until such time, if any, as such shares of Common Stock may be issued in compliance with such limitation. The provisions of this Section 11(b) may not be waived. (c) This Section 11 shall not restrict the number of shares of Common Stock which a Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section ~~9(c~~9(b) this Warrant or the amount of Distributed Property to which the Holder may become entitled pursuant to Section 9(d) of this Warrant. ~~For purposes of clarity~~In addition, ~~the shares of Common Stock issuable~~ this provision shall not in any way limit any other adjustment to be made pursuant to ~~the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of~~ Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant9 hereof.

Appears in 2 contracts

Sources: Securities Agreement (Great Expectations & Associates Inc), Securities Agreement (Great Expectations & Associates Inc)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect ~~the~~ any exercise ~~of any portion~~ of this Warrant, and the Holder of shall not be entitled to exercise this Warrant ~~shall not have the right to exercise any portion~~ for a number of ~~the Warrant~~Warrant Shares in excess of that number of Warrant Shares which, ~~and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that~~ upon giving effect or immediately prior to ~~or following~~ such exercise, would cause (i) the aggregate number of shares of Common Stock beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder~~, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with~~ ’s for purposes of Section 13(d) of the Exchange ~~Act and the rules promulgated thereunder~~Act, ~~in excess of a percentage set at the discretion of each Holder between 0% and 19.99~~to exceed 9.99% (the “Maximum Percentage”) of the ~~Common Stock that would be~~ total number of issued and outstanding following such exercise. The initial Maximum Percentage is [•]%. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock ~~held and/or~~ of the Company following such exercise, or (ii) the combined voting power of the securities of the Company beneficially owned by the Holder ~~together with the Attribution Parties, shall include the number of shares~~ and its Affiliates and any other Persons whose beneficial ownership of Common Stock ~~held and/or beneficially owned by the Holder together~~ would be aggregated with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For Holder’s for purposes of ~~this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with~~ Section 13(d) of the Exchange Act ~~and~~ to exceed 9.99% of the ~~rules promulgated thereunder~~combined voting power of all of the securities of the Company then outstanding following such exercise. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Form 10-K, Q or Form 10-~~Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission~~K, as the case may be, filed with the Commission prior to the date hereof, (2y) a more recent public announcement by the Company or (3z) any other notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent setting forth the number of shares of Common Stock ~~outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~outstanding. ~~For any reason at any time, upon~~ Upon the written ~~or oral~~ request of the Holder, the Company shall within ~~one~~ three (3) Trading ~~Day~~ Days confirm ~~orally and~~ in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder ~~and the Attribution Parties~~ since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the such number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shareswas reported. By written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any such increase ~~in the Maximum Percentage~~ will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company. For purposes of this Section 11(a), the aggregate number of shares of Common Stock or voting securities beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act shall include the shares of Common Stock issuable upon the exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (x) exercise of the remaining unexercised and non-cancelled portion of this Warrant by the Holder and (y) exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including without limitation any securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including without limitation any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock), is subject to a limitation on conversion or exercise analogous to the limitation contained herein and ~~shall not negatively affect~~ is beneficially owned by the Holder or any ~~partial exercise effected prior to such change~~of its Affiliates and other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 2 contracts

Sources: Underwriting Agreement (Leap Therapeutics, Inc.), Securities Purchase Agreement (Biocryst Pharmaceuticals Inc)

Limitations on Exercise. ~~(a) Notwithstanding anything to the contrary contained herein, the~~ The Company shall not effect the exercise of any ~~portion of this Warrant~~Rights, and the Holder ~~of this Warrant~~ shall not have the right to exercise any portion of any Rights pursuant to the ~~Warrant,~~ terms and conditions of this Agreement and any such exercise shall be null and void ~~ab initio~~ and treated as if ~~the exercise had not been~~ never made, to the extent that ~~immediately prior~~ after giving effect to ~~or following~~ such exercise, the ~~Holder,~~ Holder together with the other Attribution ~~Parties, beneficially owns or~~ Parties (as defined below) collectively would beneficially own ~~as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder,~~ in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~9.99% (the “~~Maximum Percentage~~Beneficial Ownership Limitation”) of the shares of Common Stock ~~that would be issued and~~ outstanding ~~following~~ immediately after giving effect to such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of ~~calculating beneficial ownership for determining whether~~ the ~~Maximum Percentage is or will be exceeded~~foregoing sentence, the aggregate number of shares of Common Stock ~~held and/or~~ beneficially owned by the Holder ~~together with~~ and the other Attribution ~~Parties,~~ Parties shall include the number of shares of Common Stock held ~~and/or beneficially owned~~ by the Holder ~~together with the~~ and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the ~~relevant Warrant~~ Rights issued hereunder with respect to which the determination of such sentence is being ~~made~~ made, but shall exclude ~~the number of~~ shares of Common Stock which would be issuable upon (iA) exercise of the remaining, ~~unexercised Warrant held and/or~~ nonexercised portion of the Rights beneficially owned by the Holder or any of the other Attribution Parties and (iiB) exercise or conversion of the unexercised or ~~unconverted~~ nonconverted portion of any other securities of the Company ~~held and/or beneficially owned by such Holder or any Attribution Party~~ (including, without limitation, any convertible ~~notes,~~ notes or convertible preferred stock or warrants) ~~that are~~ beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained ~~herein~~in this Section 4.8. For purposes of this ~~Paragraph 11(a),~~ Section 4.8 beneficial ownership ~~of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence,~~ shall be calculated ~~and determined~~ in accordance with Section 13(d) of the Securities Exchange Act ~~and~~ of 1934, as amended (the ~~rules promulgated thereunder~~“1934 Act”). For purposes of ~~this Warrant, in~~ determining the number of outstanding shares of Common ~~Stock~~Stock the Holder may acquire upon the exercise of the Rights without exceeding the Beneficial Ownership Limitation, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the ~~Securities and Exchange Commission~~SEC, as the case may be, (2y) a more recent public announcement by the Company or (3z) any other written notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent, if any, setting forth the number of shares of Common Stock outstanding (~~such issued and outstanding shares,~~ the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives ~~an Exercise~~ a Notice of Issuance from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall ~~(i)~~ notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such ~~Exercise~~ Notice of Issuance would otherwise cause the Holder~~’s, together with the Attribution Parties’,~~ ’s beneficial ownership, as determined pursuant to this Section ~~11(a)~~4.8, to exceed the ~~Maximum Percentage~~Beneficial Ownership Limitation, the Holder must notify the Company of a reduced number of ~~Warrant Shares~~ shares of Common Stock to be purchased pursuant to such ~~Exercise~~ Notice of Issuance. For any reason at any time, upon the written or oral request of the Holder, the Company shall within one (1) Business Day confirm orally and in writing or by electronic mail to the Holder the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Sharesof Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including ~~this Warrant~~the Rights, by the Holder and ~~the~~ any other Attribution ~~Parties~~ Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of shares of Common Stock to the Holder upon exercise of ~~this Warrant~~ the Rights results in the ~~Holder, together with~~ Holder and the other Attribution ~~Parties,~~ Parties being deemed to beneficially own, in the aggregate, more than the ~~Maximum Percentage~~ Beneficial Ownership Limitation of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the ~~Exchange~~ 1934 Act), the number of shares so issued by which the Holder~~’s, together with~~ ’s and the other Attribution Parties’, ’ aggregate beneficial ownership exceeds the ~~Maximum Percentage~~ Beneficial Ownership Limitation (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder ~~and/or the Attribution Parties~~ shall not have the power to vote or to transfer the Excess Shares. ~~As soon as reasonably practicable after the issuance~~ Upon delivery of ~~the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By~~ a written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase (with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease the ~~Maximum Percentage~~ Beneficial Ownership Limitation to any other percentage not in excess of ~~19.99~~9.99% as specified in such notice; provided that (i) any such increase in the ~~Maximum Percentage~~ Beneficial Ownership Limitation will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company and ~~shall not negatively affect~~ (ii) any ~~partial exercise effected prior~~ such increase or decrease will apply only to ~~such change. (b) This Section 11 shall not restrict~~ the ~~number of shares of Common Stock which a~~ Holder or and the other Attribution Parties ~~may receive or beneficially own in order~~ and not to ~~determine~~ any other holder of Rights that is not an Attribution Party of the ~~amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant~~Holder. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of ~~this Warrant~~ the Rights hereunder in excess of the ~~Maximum Percentage~~ Beneficial Ownership Limitation shall not be deemed to be beneficially owned by the Holder ~~or the Attribution Parties~~ for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the ~~Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1)~~1934 Act. No prior inability to exercise ~~this Warrant~~ any Rights pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 4.8 to the extent necessary to correct this paragraph (or any portion of this ~~paragraph~~ paragraph) which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 4.8 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of Rights. For the purpose of this ~~Warrant~~Agreement: (x) “Attribution Parties” means, collectively, the following Persons and entities: (i) any investment vehicle, including, any funds, feeder funds or managed accounts, currently, or from time to time after the Closing Date, directly or indirectly managed or advised by the Holder’s investment manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of the Holder or any of the foregoing, (iii) any Person acting or who could be deemed to be acting as a Group together with the Holder or any of the foregoing and (iv) any other Persons whose beneficial ownership of the Company’s Common Stock would or could be aggregated with the Holder’s and the other Attribution Parties for purposes of Section 13(d) of the 1934 Act. For clarity, the purpose of the foregoing is to subject collectively the Holder and all other Attribution Parties to the Beneficial Ownership Limitation, (y) “Group” means a “group” as that term is used in Section 13(d) of the 1934 Act and as defined in Rule 13d-5 thereunder and (z) “Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with, such Person, it being understood for purposes of this definition that “control” of a Person means the power directly or indirectly either to vote 10% or more of the stock having ordinary voting power for the election of directors of such Person or direct or cause the direction of the management and policies of such Person whether by contract or otherwise.

Appears in 2 contracts

Sources: Settlement Agreement (American Virtual Cloud Technologies, Inc.), Exchange Agreement (American Virtual Cloud Technologies, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary ~~contained herein~~set forth in this Warrant, at no time may a Holder of this Warrant exercise this Warrant if the number of Warrant Shares to be issued pursuant to such exercise would exceed, when aggregated with all other shares of Common Stock owned by such Holder at such time, the number of shares of Common Stock which would result in such Holder beneficially owning (as determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules thereunder) in excess of 4.99% of all of the Common Stock outstanding at such time; provided, however, that upon a Holder of this Warrant providing the Company ~~shall not effect~~ with sixty-one (61) days notice (the “Waiver Notice”) that such Holder would like to waive this Section 12(a) with regard to any or all Warrant Shares issuable upon exercise ~~of any portion~~ of this Warrant, ~~and~~ this Section 12(a) will be of no force or effect with regard to all or a portion of the Warrant Shares referenced in the Waiver Notice; provided, further, that this Section 12(a) shall be of no further force or effect during the sixty-one (61) days immediately preceding the expiration of the term of this Warrant. (b) Notwithstanding anything to the contrary set forth in this Warrant, at no time may a Holder of this Warrant ~~shall not have~~ exercise this Warrant if the ~~right~~ number of Warrant Shares to ~~exercise any portion of the Warrant, and any~~ be issued pursuant to such exercise ~~shall be null and void ab initio and treated as if the exercise had not been made~~would exceed, ~~to the extent that immediately prior to or following~~ when aggregated with all other shares of Common Stock owned by such ~~exercise~~Holder at such time, the ~~Holder, together with the Attribution Parties,~~ number of shares of Common Stock which would result in such Holder beneficially ~~owns or would beneficially own~~ owning (as determined in accordance with Section 13(d) of the Exchange Act and the rules ~~promulgated~~ thereunder, ) in excess of ~~a percentage set at the discretion~~ 9.99% of ~~each Holder between 0% and 19.99% (the “Maximum Percentage”)~~ all of the Common Stock outstanding at such time; provided, however, that would be issued and outstanding following such exercise. The initial Maximum Percentage is [•]%. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by providing the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise a Waiver Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with ~~the Attribution Parties’, beneficial ownership, as determined pursuant~~ regard to this Section ~~11(a~~12(b), this Section 12(b) will be of no force or effect with regard to ~~exceed~~ all or a portion of the ~~Maximum Percentage, the Holder must notify the Company of a reduced number of~~ Warrant Shares ~~to be purchased pursuant to~~ referenced in such ~~Exercise Notice (the number of shares by which such purchase is reduced~~Waiver Notice; provided, ~~the “Reduction Shares”) and (ii) as soon as reasonably practicable~~further, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including that this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”12(b) shall be ~~deemed null and void and shall be cancelled ab initio, and~~ of no further force or effect during the ~~Holder and/or~~ sixty-one (61) days immediately preceding the ~~Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance~~ expiration of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder term of this Warrant.

Appears in 2 contracts

Sources: Warrant Agreement (Echo Therapeutics, Inc.), Warrant Agreement (Echo Therapeutics, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99%~~ [4.99][9.99]% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one ~~Trading Day~~ business day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage ~~not in excess of 19.99%~~ specified in such notice; provided that such other percentage shall not be in excess of [4.99%][19.99% unless Stockholder Approval (as defined in the Purchase Agreement) has been obtained]; provided further that] any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of (i) Distribution as contemplated in Section 9(b), (ii) Purchase Rights as contemplated in Section 9(c) or (iii) a Fundamental Transaction as contemplated in Section ~~9(c~~9(d) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 2 contracts

Sources: Warrant Agreement (Athira Pharma, Inc.), Warrant Agreement (Athira Pharma, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not ~~have the right to~~ exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~9.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 2 contracts

Sources: Warrant Agreement (Beta Bionics, Inc.), Warrant Agreement (Monopar Therapeutics)

Limitations on Exercise. ~~(a) Notwithstanding anything to the contrary contained herein, the~~ The Company shall not effect the exercise of any ~~portion of this Warrant~~Rights, and ~~the~~ a Holder ~~of this Warrant~~ shall not have the right to exercise any portion of any Rights pursuant to the ~~Warrant,~~ terms and conditions of this Agreement and any such exercise shall be null and void ~~ab initio~~ and treated as if ~~the exercise had not been~~ never made, to the extent that ~~immediately prior~~ after giving effect to ~~or following~~ such exercise, ~~the Holder,~~ such Holder together with the other Attribution ~~Parties, beneficially owns or~~ Parties collectively would beneficially own ~~as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder,~~ in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~4.99% (the “~~Maximum Percentage~~Beneficial Ownership Limitation”) of the shares of Common Stock ~~that would be issued and~~ outstanding ~~following~~ immediately after giving effect to such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of ~~calculating beneficial ownership for determining whether~~ the ~~Maximum Percentage is or will be exceeded~~foregoing sentence, the aggregate number of shares of Common Stock ~~held and/or~~ beneficially owned by such Holder and the ~~Holder together with~~ other Attribution Parties (as defined in the ~~Attribution Parties,~~ Warrant) shall include the number of shares of Common Stock held ~~and/or beneficially owned~~ by ~~the~~ such Holder ~~together with the~~ and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the ~~relevant Warrant~~ Rights issued hereunder with respect to which the determination of such sentence is being ~~made~~ made, but shall exclude ~~the number of~~ shares of Common Stock which would be issuable upon (iA) exercise of the remaining, ~~unexercised Warrant held and/or~~ nonexercised portion of the Rights beneficially owned by ~~the~~ such Holder or any of the other Attribution Parties and (iiB) exercise or conversion of the unexercised or ~~unconverted~~ nonconverted portion of any other securities of the Company ~~held and/or beneficially owned by such Holder or any Attribution Party~~ (including, without limitation, any convertible ~~notes,~~ notes or convertible preferred stock or warrants) ~~that are~~ beneficially owned by such Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained ~~herein~~in this Section 4(aa)(ix). For purposes of this ~~Paragraph 11(a~~Section 4(aa)(ix), beneficial ownership ~~of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence,~~ shall be calculated ~~and determined~~ in accordance with Section 13(d) of the ~~Exchange~~ 1934 Act ~~and~~ (as defined in the ~~rules promulgated thereunder~~Warrant). For purposes of ~~this Warrant, in~~ determining the number of outstanding shares of Common ~~Stock~~Stock such Holder may acquire upon the exercise of the Rights without exceeding the Beneficial Ownership Limitation, a such Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the ~~Securities and Exchange Commission~~SEC, as the case may be, (2y) a more recent public announcement by the Company or (3z) any other written notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent, if any, setting forth the number of shares of Common Stock outstanding (~~such issued and outstanding shares,~~ the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives ~~an Exercise~~ a Notice of Issuance from ~~the~~ such Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall ~~(i)~~ notify ~~the~~ such Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such ~~Exercise~~ Notice of Issuance would otherwise cause ~~the~~ such Holder~~’s, together with the Attribution Parties’,~~ ’s beneficial ownership, as determined pursuant to this Section ~~11(a~~4(aa)(ix), to exceed the ~~Maximum Percentage~~Beneficial Ownership Limitation, ~~the~~ such Holder must notify the Company of a reduced number of ~~Warrant Shares~~ shares of Common Stock to be purchased pursuant to such ~~Exercise~~ Notice of Issuance. For any reason at any time, upon the written or oral request of such Holder, the Company shall within one (1) Business Day confirm orally and in writing or by electronic mail to such Holder the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Sharesof Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including ~~this Warrant~~the Rights, by ~~the~~ such Holder and ~~the~~ any other Attribution ~~Parties~~ Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of shares of Common Stock to ~~the~~ such Holder upon exercise of ~~this Warrant~~ the Rights results in such Holder and the ~~Holder, together with the~~ other Attribution ~~Parties,~~ Parties being deemed to beneficially own, in the aggregate, more than the ~~Maximum Percentage~~ Beneficial Ownership Limitation of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the ~~Exchange~~ 1934 Act), the number of shares so issued by which such Holder’s and the ~~Holder’s, together with the~~ other Attribution Parties’, ’ aggregate beneficial ownership exceeds the ~~Maximum Percentage~~ Beneficial Ownership Limitation (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and ~~the~~ such Holder ~~and/or the Attribution Parties~~ shall not have the power to vote or to transfer the Excess Shares. ~~As soon as reasonably practicable after the issuance~~ Upon delivery of ~~the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By~~ a written notice to the Company, a such Holder ~~of this Warrant~~ may from time to time increase (with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease the ~~Maximum Percentage~~ Beneficial Ownership Limitation to any other percentage not in excess of ~~19.99~~9.99% as specified in such notice; provided that (I) any such increase in the ~~Maximum Percentage~~ Beneficial Ownership Limitation will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company and ~~shall not negatively affect~~ (II) any ~~partial exercise effected prior~~ such increase or decrease will apply only to such ~~change. (b) This Section 11 shall not restrict~~ Holder and the ~~number of shares of Common Stock which a Holder or the~~ other Attribution Parties ~~may receive or beneficially own in order~~ and not to ~~determine the amount~~ any other holder of ~~securities or other consideration~~ Rights that is not an Attribution Party of such ~~Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant~~Holder. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of ~~this Warrant~~ the Rights hereunder in excess of the ~~Maximum Percentage~~ Beneficial Ownership Limitation shall not be deemed to be beneficially owned by ~~the~~ such Holder ~~or the Attribution Parties~~ for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the ~~Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1)~~1934 Act. No prior inability to exercise ~~this Warrant~~ any Rights pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 4(aa)(ix) to the extent necessary to correct this paragraph (or any portion of this ~~paragraph~~ paragraph) which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 4(aa)(ix) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of ~~this Warrant~~Rights.

Appears in 2 contracts

Sources: Securities Purchase Agreement (Edoc Acquisition Corp.), Securities Purchase Agreement (Edoc Acquisition Corp.)

Limitations on Exercise. ~~(a)~~ 9.1 Notwithstanding anything herein to the ~~contrary contained herein~~contrary, ~~the Company~~ in no event shall ~~not effect the exercise of any portion of this Warrant, and~~ the Holder ~~of this Warrant shall not have the right~~ be entitled to exercise any portion of this Warrant which would cause the ~~Warrant~~total number of issued and outstanding shares of the Company’s Common Stock plus the number of shares of Common Stock reserved for issuance upon exercise of all outstanding options and warrants and upon conversion of all outstanding shares of convertible preferred stock to be in excess of the number of the Company’s authorized shares of Common Stock. 9.2 Notwithstanding anything herein to the contrary, in no event shall the Holder be entitled to exercise any portion of this Warrant in excess of that portion of this Warrant upon exercise of which the sum of (1) the number of shares of Common Stock beneficially owned by the Holder and its Affiliates (other than shares of Common Stock which may be deemed beneficially owned through the ownership of the unexercised portion of the Warrant or the unexercised or unconverted portion of any ~~such exercise shall be null~~ other security of the Holder subject to a limitation on conversion analogous to the limitations contained herein) and ~~void ab initio and treated as if~~ (2) the number of shares of Common Stock issuable upon the exercise ~~had not been~~ of the portion of this Warrant with respect to which the determination of this proviso is being made, to would result in beneficial ownership by the ~~extent that immediately prior to~~ Holder and its Affiliates of any amount greater than 9.99% of the then outstanding shares of Common Stock (whether or ~~following~~ not, at the time of such exercise, the ~~Holder, together with the Attribution Parties, beneficially owns or would~~ Holder and its Affiliates beneficially own more than 9.99% of the then outstanding shares of Common Stock). As used herein, the term “Affiliate” means any person or entity that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a person or entity, as such terms are used in and construed under Rule 144 under the Securities Act. For purposes of the second preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and ~~the rules promulgated~~ Regulations 13D-G thereunder, in excess of a percentage set at the discretion of each Holder between 0% and 19.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise. The initial Maximum Percentage is [•]%. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as ~~set forth~~ otherwise provided in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in clause (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of ~~shares of Common Stock outstanding (~~such ~~issued and outstanding shares, the “Reported Outstanding Share Number”)~~sentence. For any reason at any time, upon ~~the~~ written or oral request of the Holder, the Company shall within one ~~Trading Day~~ (1) business day confirm orally and in writing ~~or by electronic mail~~ to the Holder the number of shares of Common Stock ~~then outstanding~~outstanding as of any given date. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations ~~on exercise or conversion analogous to the limitation contained~~ set forth herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (ix) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to may be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid waived by the Holder ~~for the Reduction Shares. In any case, the number~~ upon provision of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more no less than ~~the Maximum Percentage of the number of outstanding shares of Common Stock~~ sixty-one (~~as determined under Section 13(d~~61) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written days prior notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and (y) shall ~~not negatively affect any partial exercise effected prior~~ automatically become null and void following notice to ~~such change.~~ the Company upon the occurrence and during the continuance of an Event of Default (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive as defined in the ~~event of a Fundamental Transaction as contemplated~~ Note referred to in ~~Section 9(c) of this Warrant. For purposes of clarity,~~ the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1Purchase Agreement). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 2 contracts

Sources: Common Stock Purchase Warrant (Jmar Technologies Inc), Warrant Agreement (Jmar Technologies Inc)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this ~~Warrant~~Warrant (other than the Pre-Funded Warrants), and the Holder of this Warrant shall not ~~have the right to~~ exercise any portion of the ~~Warrant~~Warrant (other than the Pre-Funded Warrants), and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99%~~ [4.99][9.99]% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced ~~number~~ Number of Warrant ~~Shares~~ Securities to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares and reinstate the Warrant to the extent of such surrendered Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1Maximum (1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 2 contracts

Sources: Warrant Agreement (Inhibikase Therapeutics, Inc.), Warrant Agreement (Inhibikase Therapeutics, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect ~~the~~ any exercise ~~of any portion~~ of this Warrant, and the Holder of shall not be entitled to exercise this Warrant ~~shall not have the right to exercise any portion~~ for a number of the ~~Warrant~~Warrant Shares in excess of that number of the Warrant Shares which, ~~and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that~~ upon giving effect or immediately prior to ~~or following~~ such exercise, would cause (i) the aggregate number of shares of the Common Stock beneficially owned by the Holder, ~~together~~ its Affiliates and any other Persons whose beneficial ownership of the Common Stock would be aggregated with the ~~Attribution Parties, beneficially owns or would beneficially own as determined in accordance with~~ Holder’s for purposes of Section 13(d) of the Exchange Act ~~and the rules promulgated thereunder, in excess of a percentage set at the discretion of each Holder between 0% and 19.99~~to exceed 4.99% (the “Maximum Percentage”) of the ~~Common Stock that would be~~ total number of issued and outstanding shares of the Common Stock of the Company following such exercise~~. The initial Maximum Percentage is [•]%. For purposes~~ , or (ii) the combined voting power of ~~calculating beneficial ownership for determining whether~~ the ~~Maximum Percentage is or will be exceeded,~~ securities of the ~~aggregate number of shares of Common Stock held and/or~~ Company beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and ~~(ii) exercise or conversion of the unexercised or unconverted portion of~~ its Affiliates and any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), Persons whose beneficial ownership of the ~~Holder or~~ Common Stock would be aggregated with the ~~Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with~~ Holder’s for purposes of Section 13(d) of the Exchange Act ~~and~~ to exceed 4.99% of the ~~rules promulgated thereunder~~combined voting power of all of the securities of the Company then outstanding following such exercise. For purposes of this Warrant, in determining the number of outstanding shares of the Common Stock, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of the Common Stock as reflected in (1x) the Company’s most recent Form 10-K, Q or Form 10-~~Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission~~K, as the case may be, filed with the Commission prior to the date hereof, (2y) a more recent public announcement by the Company or (3z) any other notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent setting forth the number of shares of the Common Stock ~~outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~outstanding. ~~For any reason at any time, upon~~ Upon the written ~~or oral~~ request of the Holder, the Company shall within ~~one~~ three (3) Trading ~~Day~~ Days confirm ~~orally and~~ in writing or by electronic mail to the Holder the number of shares of the Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of the Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder ~~and the Attribution Parties~~ since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the such number of outstanding shares of the Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shareswas reported. By written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage specified not in excess of 19.99% specified in such notice; provided that any such increase ~~in the Maximum Percentage~~ will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company. For purposes of this Section 11(a), the aggregate number of shares of the Common Stock or voting securities beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of the Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act shall include the shares of the Common Stock issuable upon the exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of the Common Stock which would be issuable upon (x) exercise of the remaining unexercised and non-cancelled portion of this Warrant by the Holder and (y) exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including without limitation any securities of the Company which would entitle the holder thereof to acquire at any time shares of the Common Stock, including without limitation any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares of the Common Stock), is subject to a limitation on conversion or exercise analogous to the limitation contained herein and ~~shall not negatively affect~~ is beneficially owned by the Holder or any ~~partial exercise effected prior to such change~~of its Affiliates and other Persons whose beneficial ownership of the Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act. (b) This Section 11 shall not restrict the number of shares of the Common Stock which a Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 2 contracts

Sources: Security Agreement (NEUROONE MEDICAL TECHNOLOGIES Corp), Security Agreement (NEUROONE MEDICAL TECHNOLOGIES Corp)

Limitations on Exercise. (a) ~~Notwithstanding anything to the contrary contained herein, the Company~~ The Holder shall ~~not effect the exercise of any portion of this Warrant, and the Holder of~~ be prohibited from exercising this Warrant ~~shall not have the right to exercise any portion of the Warrant~~if, ~~and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that~~ immediately prior to or following such ~~exercise~~exercise (or portion of such exercise thereof), the Holder, together with ~~the~~ its Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act ~~and the rules promulgated thereunder, in excess of a percentage set at the discretion of each Holder between 0% and 19.99~~more than 9.99% (the “Maximum Percentage”) of the ~~Common Stock that would be~~ issued and outstanding ~~following such exercise. The initial Maximum Percentage~~ Common Stock or any other class of equity security (other than an exempted security) of the Company that is ~~[•]%~~registered pursuant to Section 12 of the Exchange Act. For purposes of calculating beneficial ~~ownership for determining whether the Maximum Percentage is or will be exceeded~~ownership, the aggregate number of shares of Common Stock ~~held and/or~~ beneficially owned by the ~~Holder~~ Holder, together with ~~the~~ its Attribution Parties, shall include the number of shares of Common Stock ~~held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock~~ issuable upon exercise of ~~the relevant~~ this Warrant with respect to which the determination is being ~~made~~ made, but shall exclude the number of shares of Common Stock which ~~would be~~ are issuable upon (i) ~~exercise~~ conversion of the remaining, ~~unexercised~~ unconverted portion of this Warrant ~~held and/or~~ beneficially owned by the ~~Holder or the~~ Holder, together with its Attribution ~~Parties~~ Parties, and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company ~~held and/or~~ beneficially owned by ~~such Holder or any~~ the Holder, together with its Attribution ~~Party~~ Parties (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this ~~Paragraph~~ Section 11(a), beneficial ownership ~~of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence,~~ shall be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, it being acknowledged and agreed that the Holder is solely responsible for any schedules required to be filed in accordance therewith. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the ~~Securities and Exchange Commission~~SEC, as the case may be, (2) a more recent public announcement by the Company or (3) any other written notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent setting forth the number of shares of Common Stock ~~outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~outstanding. For any reason at any time, upon the written ~~or oral~~ request of the Holder, the Company shall within one ~~Trading~~ (1) Business Day confirm to the Holder, orally and in ~~writing or by electronic mail to the Holder~~ writing, the number of shares of Common Stock then outstanding. ~~The~~ Each delivery of an Exercise Notice by the Holder ~~shall disclose to~~ will constitute a representation by the Holder, upon which the Company shall be entitled to rely without investigation, that the Holder has evaluated the limitation set forth in this paragraph and determined that the issuance of the full number of Warrant Shares requested in such Exercise Notice is permitted under this paragraph. Any purported delivery of any number of shares of Common Stock ~~that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and~~ or any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder other security upon exercise of this Warrant ~~results in~~ shall be void and have no effect to the extent, but only to the extent, that before or after such delivery, the exercising Holder, together with ~~the~~ its Affiliates and any other Attribution ~~Parties, being deemed to beneficially own,~~ Party would have beneficial ownership in ~~the aggregate, more than~~ excess of the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess SharesPercentage. By written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the ~~Company and shall not negatively affect any partial exercise effected prior to such change~~Company. (b) This Section 11 shall not restrict the number of shares of Common Stock which a the Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that ~~such~~ the Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section ~~9(c~~9(d) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 2 contracts

Sources: Security Agreement (Beyond Air, Inc.), Security Agreement (Beyond Air, Inc.)

Limitations on Exercise. ~~(a)~~ Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of ~~this~~ a Warrant, and the Holder ~~of this Warrant~~ shall not have the right to exercise any portion of ~~the~~ a Warrant, pursuant to the terms and conditions of the Warrant and any such exercise shall be null and void ~~ab initio~~ and treated as if ~~the exercise had not been~~ never made, to the extent that ~~immediately prior~~ after giving effect to ~~or following~~ such exercise, the ~~Holder,~~ Holder together with the other Attribution ~~Parties, beneficially owns or~~ Parties collectively would beneficially own ~~as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder,~~ in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99%~~ [4.99][9.99]% (the “Maximum Percentage”) of the number of shares of Common Stock ~~that would be issued and~~ outstanding ~~following~~ immediately after giving effect to such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of ~~calculating beneficial ownership for determining whether~~ the ~~Maximum Percentage is or will be exceeded~~foregoing sentence, the aggregate number of shares of Common Stock ~~held and/or~~ beneficially owned by the Holder ~~together with~~ and the other Attribution ~~Parties,~~ Parties shall include the number of shares of Common Stock held ~~and/or beneficially owned~~ by the Holder ~~together with the~~ and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the ~~relevant Warrant~~ Warrants with respect to which the determination of such sentence is being ~~made~~ made, but shall exclude the number of shares of Common Stock which would be issuable upon (iA) exercise of the remaining, unexercised ~~Warrant held and/or~~ portion of the Warrants beneficially owned by the Holder or any of the other Attribution Parties and (iiB) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company ~~held and/or beneficially owned by such Holder or any Attribution Party~~ (including, without limitation, any convertible ~~notes,~~ notes or convertible preferred stock or warrants, including the other Warrants) ~~that are~~ beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained ~~herein~~in this Section 3.3.10. For purposes of this ~~Paragraph 11(a)~~Section 3.3.10, beneficial ownership ~~of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence,~~ shall be calculated ~~and determined~~ in accordance with Section 13(d) of the ~~Exchange Act and the rules promulgated thereunder~~1934 Act. For purposes of ~~this Warrant~~the Warrants, in determining the number of outstanding shares of Common ~~Stock~~Stock the Holder may acquire upon the exercise of the Warrants without exceeding the Maximum Percentage, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Q and Current ~~Report~~ Reports on Form 8-K or other public filing with the ~~Securities and Exchange Commission~~SEC, as the case may be, (2y) a more recent public announcement by the Company or (3z) any other written notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent setting forth the number of shares of Common Stock outstanding (~~such issued and outstanding shares,~~ the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder~~’s, together with the Attribution Parties’,~~ ’s beneficial ownership, as determined pursuant to this Section ~~11(a)~~3.3.10, to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. For any reason at any time, upon the written or oral request of the Holder, the Company shall within one (1) Business Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including ~~this Warrant~~the Warrants, by the Holder and ~~the~~ any other Attribution ~~Parties~~ Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of ~~this Warrant~~ the Warrants results in the ~~Holder, together with~~ Holder and the other Attribution ~~Parties,~~ Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the ~~Exchange~~ 1934 Act), the number of shares so issued by which the Holder~~’s, together with~~ ’s and the other Attribution Parties’, ’ aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder ~~and/or the Attribution Parties~~ shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By Upon delivery of a written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of ~~19.99~~9.99% or such higher percentage as specified in such notice; provided that (i) any such increase in the Maximum Percentage will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company and ~~shall not negatively affect~~ (ii) any ~~partial exercise effected prior~~ such increase or decrease will apply only to ~~such change. (b) This Section 11 shall not restrict~~ the ~~number of shares of Common Stock which a~~ Holder or and the other Attribution Parties ~~may receive or beneficially own in order~~ and not to ~~determine~~ any other holder of Warrants that is not an Attribution Party of the ~~amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant~~Holder. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of ~~this Warrant~~ the Warrants in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder ~~or the Attribution Parties~~ for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the ~~Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1)~~1934 Act. No prior inability to exercise ~~this Warrant~~ the Warrants pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 3.3.10 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 3.3.10 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of ~~this Warrant~~the Warrants.

Appears in 2 contracts

Sources: Warrant Agreement (Vislink Technologies, Inc.), Warrant Agreement (Vislink Technologies, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the ~~Company shall not effect the exercise~~ number of ~~any portion of this Warrant, and~~ Warrant Shares that may be acquired by the Holder upon any exercise of this Warrant ~~shall not have the right to exercise any portion of the Warrant, and any such exercise~~ (or otherwise in respect hereof) shall be ~~null and void ab initio and treated as if the exercise had not been made,~~ limited to the extent ~~that immediately prior~~ necessary to or ensure that, following such ~~exercise~~exercise (or other issuance), the ~~Holder, together~~ total number of shares of Common Stock then beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the ~~Attribution Parties, beneficially owns or would beneficially own as determined in accordance with~~ Holder’s for purposes of Section 13(d) of the Exchange ~~Act and the rules promulgated thereunder~~Act, does not exceed 4.99% (or, in ~~excess~~ the case of ~~a percentage set at~~ PDL BioPharma, Inc. only, 19.99%, until the ~~discretion of each Holder between 0% and 19.99%~~ Stockholder Approval has been obtained) (the “Maximum Percentage”) of the ~~Common Stock that would be~~ total number of then issued and outstanding ~~following~~ shares of Common Stock (including for such purpose the shares of Common Stock issuable upon such exercise~~. The initial Maximum Percentage is [•]%~~). For purposes of ~~calculating beneficial ownership for determining whether~~ the ~~Maximum Percentage is or will be exceeded~~foregoing sentence, the aggregate number of shares of Common Stock ~~held and/or~~ beneficially owned by the Holder ~~together with the Attribution Parties,~~ and its Affiliates shall include ~~the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus~~ the number of shares of Common Stock issuable upon exercise of ~~the relevant~~ this Warrant with respect to which the determination of such sentence is being ~~made~~ made, but shall exclude ~~the number of~~ shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised portion of this Warrant ~~held and/or~~ beneficially owned by ~~the Holder or the Attribution Parties~~ such Person and its Affiliates and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company ~~held and/or~~ beneficially owned by ~~such~~ the Holder ~~or any Attribution Party~~ and its Affiliates (including, without limitation, any convertible ~~notes,~~ notes or convertible preferred stock or warrants) ~~that are~~ subject to a limitation on conversion or exercise analogous to the limitation contained herein~~. For purposes~~ ; provided that in no event shall the aggregate number of ~~this Paragraph 11(a)~~shares beneficially owned by the Holder and its Affiliates, ~~beneficial ownership~~ calculated in accordance with Section 13(d) of the ~~Holder or~~ Exchange Act, exceed 9.99% (or, in the ~~Attribution Parties shall~~case of PDL BioPharma, ~~except~~ Inc. only, 19.99%, until the Stockholder Approval has been obtained). Except as set forth in the preceding sentence (other than the proviso thereto), for purposes of this paragraph (including the proviso in the immediately preceding sentence), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act; it being acknowledged by the Holder that the Company is not representing to such Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and such Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section 11 applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by such Holder) and of which a portion of this Warrant is exercisable shall be in the sole discretion of a Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by such Holder) and of which portion of this Warrant is exercisable, in each case subject to such aggregate percentage limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this ~~Warrant~~Section 11, in determining the number of outstanding shares of Common Stock, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Form 10-K, Q or Form 10-~~Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission~~K, as the case may be, (2y) a more recent public announcement by the Company or (3z) any other notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent setting forth the number of shares of Common Stock ~~outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~outstanding. ~~For any reason at any time, upon~~ Upon the written ~~or oral~~ request of the Holder, the Company shall within ~~one~~ three (3) Trading ~~Day~~ Days confirm ~~orally and~~ in writing ~~or by electronic mail~~ to ~~the~~ such Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including ~~this Warrant~~the Warrants, by the Holder and ~~the Attribution Parties~~ its Affiliates since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the such number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shareswas reported. By written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of ~~19.99~~9.99% (other than in the case of PDL BioPharma, Inc., as to which there shall be no Maximum Percentage following the Stockholder Approval) specified in such notice; provided that (i) any such increase ~~in the Maximum Percentage~~ will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the ~~Company~~ Company, and (ii) any such increase or decrease will apply only to the Holder and not to any other holder of Warrants. The provisions of this paragraph shall not ~~negatively affect any partial exercise effected prior~~ apply to ~~such change.~~ (bi) ~~This Section 11 shall not restrict~~ the Holder if the aggregate number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder ~~or the Attribution Parties for any purpose including for purposes of~~ and its Affiliates, calculated in accordance with Section 13(d) of the Exchange ~~Act and~~ Act, exceed 19.99% immediately prior to the ~~rules promulgated thereunder~~ Closing or ~~Section 16 of~~ (ii) PDL BioPharma, Inc. following the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisabilityStockholder Approval. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~11 to the extent necessary~~ 12 to correct this paragraph (or any portion ~~of this paragraph~~ hereof) which may be defective or inconsistent with the intended beneficial ownership limitation herein contained ~~in this Section 11~~ or to make changes or supplements necessary or desirable to properly give effect to such limitation~~. The limitation contained~~ . (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder may receive or beneficially own in ~~this paragraph~~ order to determine the amount of securities or other consideration that such Holder may ~~not be waived and shall apply to~~ receive in the event of a ~~successor holder~~ Fundamental Transaction as contemplated in Section 9(c) of this Warrant.

Appears in 2 contracts

Sources: Securities Purchase Agreement (PDL Biopharma, Inc.), Warrant Agreement (Evofem Biosciences, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0~~(a) prior to obtaining Stockholder Approval, 0.00% and ~~19.99~~(b) upon obtaining Stockholder Approval, 4.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one ~~Trading Day~~ business day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section ~~11(a~~12(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage specified in such notice; provided, that such percentage shall not be in excess of 19.99% ~~specified in such notice~~unless Stockholder Approval has been obtained; and provided further, that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 12 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of (i) Distribution as contemplated in Section 10(b), (ii) Purchase Rights as contemplated in Section 10(c) or (iii) a Fundamental Transaction as contemplated in Section ~~9(c~~10(d) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 12 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 12 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 2 contracts

Sources: Warrant Agreement (Athira Pharma, Inc.), Warrant Agreement (Athira Pharma, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the ~~Company shall not effect the exercise~~ number of ~~any portion of this Warrant, and~~ Warrant Shares that may be acquired by the Holder upon any exercise of this Warrant ~~shall not have the right to exercise any portion of the Warrant, and any such exercise~~ (or otherwise in respect hereof) shall be ~~null and void ab initio and treated as if the exercise had not been made,~~ limited to the extent ~~that immediately prior~~ necessary to or insure that, following such ~~exercise~~exercise (or other issuance), the ~~Holder, together~~ total number of shares of Common Stock then beneficially owned by such Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the ~~Attribution Parties~~Holder’s for purposes of Section 13(d) of the Exchange Act, ~~beneficially owns or would beneficially own as~~ does not exceed 4.999% of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock issuable upon such exercise). For such purposes, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, . Each delivery of an Exercise Notice hereunder will constitute a representation by the Holder that it has evaluated the limitation set forth in ~~excess of a percentage set at the discretion of each Holder between 0%~~ this Section 11(a) and ~~19.99% (the “Maximum Percentage”)~~ determined that issuance of the ~~Common Stock that would be issued and outstanding following~~ full number of Warrant Shares requested in such ~~exercise~~Exercise Notice is permitted under this Section 11(a). The ~~initial Maximum Percentage is [•]%. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of~~ Company’s obligation to issue shares of Common Stock ~~held and/or beneficially owned by~~ in excess of the ~~Holder together with the Attribution Parties~~limitation referred to in this Section 11(a) shall be suspended (and, except as provided below, shall ~~include the number of~~ not terminate or expire notwithstanding any contrary provisions hereof) until such time, if any, as such shares of Common Stock ~~held and/or beneficially owned by~~ may be issued in compliance with such limitation; provided, that, if, as of 5:00 p.m., New York City time, on the ~~Holder together with~~ Expiration Date, the ~~Attribution Parties plus~~ Company has not received written notice that the ~~number of~~ shares of Common Stock ~~issuable upon exercise of the relevant Warrant~~ may be issued in compliance with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such ~~Holder or any Attribution Party (including, without~~ limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of obligation to issue such shares ~~of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~shall terminate. For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This ~~Section 11~~ provision shall not restrict the number of shares of Common Stock ~~which~~ that a Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section ~~9(c)~~ 9 hereof. By written notice to the Company, the Holder may waive the provisions of this ~~Warrant. For purposes of clarity,~~ Section 11(a) but any such waiver will not be effective until the ~~shares of Common Stock issuable pursuant~~ 61st day after such notice is delivered to the ~~terms of this Warrant in excess~~ Company, nor will any such waiver effect any other Holder. This provision shall not apply to Holders who, together with Affiliates, as of the ~~Maximum Percentage shall not be deemed to be~~ Closing Date beneficially ~~owned by the Holder or the Attribution Parties for any purpose including for purposes of~~ own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated ~~thereunder~~ thereunder) in excess of 5% of the total number of issued and outstanding shares of Common Stock. (b) Notwithstanding anything to the contrary contained herein, the number of Warrant Shares that may be acquired by the Holder upon any exercise of this Warrant (or otherwise in respect hereof) shall be limited to the extent necessary to insure that, following such exercise (or other issuance), the total number of shares of Common Stock then beneficially owned by such Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 16 13(d) of the Exchange Act, does not exceed 9.999% of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock issuable upon such exercise). For such purposes, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder~~, including Rule 16a-1(a)(1~~. Each delivery of an Exercise Notice hereunder will constitute a representation by the Holder that it has evaluated the limitation set forth in this Section 11(b) and determined that issuance of the full number of Warrant Shares requested in such Exercise Notice is permitted under this Section 11(b). ~~No prior inability~~ The Company’s obligation to ~~exercise~~ issue shares of Common Stock in excess of the limitation referred to in this ~~Warrant pursuant to this paragraph~~ Section 11(b) shall ~~have~~ be suspended (and, except as provided below, shall not terminate or expire notwithstanding any ~~effect~~ contrary provisions hereof) until such time, if any, as such shares of Common Stock may be issued in compliance with such limitation; provided, that, if, as of 5:00 p.m., New York City time, on the ~~applicability~~ Expiration Date, the Company has not received written notice that the shares of Common Stock may be issued in compliance with such limitation, the Company’s obligation to issue such shares shall terminate. This provision shall not restrict the number of shares of Common Stock that a Holder may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder may receive in the event of a Fundamental Transaction as contemplated in Section 9 hereof. By written notice to the Company, the Holder may waive the provisions of this ~~paragraph with respect to~~ Section 11(b) but any ~~subsequent determination of exercisability. The provisions of this paragraph shall~~ such waiver will not be ~~construed and implemented in a manner otherwise than in strict conformity with~~ effective until the ~~terms of this Section 11~~ 61st day after such notice is delivered to the ~~extent necessary to correct this paragraph or~~ Company, nor will any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give such waiver effect ~~to such limitation~~any other Holder. ~~The limitation contained in this paragraph may~~ This provision shall not ~~be waived and shall~~ apply to ~~a successor holder~~ Holders who, together with Affiliates, as of ~~this Warrant~~the Closing Date beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) in excess of 10% of the total number of issued and outstanding shares of Common Stock.

Appears in 2 contracts

Sources: Placement Agency Agreement (Delcath Systems Inc), Warrant Agreement (Delcath Systems Inc)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not ~~have the right to~~ exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99%~~ [4.99][9.99]% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm ~~orally and~~ in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares and reinstate the Warrant to the extent of such surrendered Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage ~~not~~ specified in such notice, provided however, in no case shall the percentage specified be in excess of 19.99~~% specified in such notice; provided that any~~ %. Any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this ~~paragraph~~ Section 11 may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (Quince Therapeutics, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99%~~ [4.99][9.99]% 1 (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one ~~Trading Day~~ business day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) or that no reduction is necessary in order to receive shares in compliance with the Maximum Percentage, and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares (if any) and to issue the shares to the Holder (reduced by the Reduction Shares, if applicable). In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess ~~Shares~~Shares and the Holder shall return such Excess Shares (if in its possession) to the Company. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage ~~not~~ specified in such notice, provided, however, that (1) in no case shall the percentage specified be in excess of 19.99% ~~specified in such notice; provided that~~ and (2) any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. 1 Note to draft: Each Investor to confirm applicable Maximum Percentage. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (180 Life Sciences Corp.)

Limitations on Exercise. ~~(a) Notwithstanding anything to the contrary contained herein, the~~ The Company shall not effect the exercise of any ~~portion of this Warrant~~Rights, and the Holder ~~of this Warrant~~ shall not have the right to exercise any portion of any Rights pursuant to the ~~Warrant,~~ terms and conditions of this Agreement and any such exercise shall be null and void ~~ab initio~~ and treated as if ~~the exercise had not been~~ never made, to the extent that ~~immediately prior~~ after giving effect to ~~or following~~ such exercise, the ~~Holder,~~ Holder together with the other Attribution ~~Parties, beneficially owns or~~ Parties (as defined below) collectively would beneficially own ~~as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder,~~ in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~9.99% (the “~~Maximum Percentage~~Beneficial Ownership Limitation”) of the shares of Common Stock ~~that would be issued and~~ outstanding ~~following~~ immediately after giving effect to such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of ~~calculating beneficial ownership for determining whether~~ the ~~Maximum Percentage is or will be exceeded~~foregoing sentence, the aggregate number of shares of Common Stock ~~held and/or~~ beneficially owned by the Holder ~~together with~~ and the other Attribution ~~Parties,~~ Parties shall include the number of shares of Common Stock held ~~and/or beneficially owned~~ by the Holder ~~together with the~~ and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the ~~relevant Warrant~~ Rights issued hereunder with respect to which the determination of such sentence is being ~~made~~ made, but shall exclude ~~the number of~~ shares of Common Stock which would be issuable upon (iA) exercise of the remaining, ~~unexercised Warrant held and/or~~ nonexercised portion of the Rights beneficially owned by the Holder or any of the other Attribution Parties and (iiB) exercise or conversion of the unexercised or ~~unconverted~~ nonconverted portion of any other securities of the Company ~~held and/or beneficially owned by such Holder or any Attribution Party~~ (including, without limitation, any convertible ~~notes,~~ Notes or convertible preferred stock or warrants) ~~that are~~ beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained ~~herein~~in this Section 13.8. For purposes of this ~~Paragraph 11(a),~~ Section 13.8 beneficial ownership ~~of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence,~~ shall be calculated ~~and determined~~ in accordance with Section 13(d) of the Securities Exchange Act ~~and~~ of 1934, as amended (the ~~rules promulgated thereunder~~“1934 Act”). For purposes of ~~this Warrant, in~~ determining the number of outstanding shares of Common ~~Stock~~Stock the Holder may acquire upon the exercise of the Rights without exceeding the Beneficial Ownership Limitation, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the ~~Securities and Exchange Commission~~SEC, as the case may be, (2y) a more recent public announcement by the Company or (3z) any other written notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent, if any, setting forth the number of shares of Common Stock outstanding (~~such issued and outstanding shares,~~ the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives ~~an Exercise~~ a Notice of Issuance from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall ~~(i)~~ notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such ~~Exercise~~ Notice of Issuance would otherwise cause the Holder~~’s, together with the Attribution Parties’,~~ ’s beneficial ownership, as determined pursuant to this Section ~~11(a)~~13.8, to exceed the ~~Maximum Percentage~~Beneficial Ownership Limitation, the Holder must notify the Company of a reduced number of ~~Warrant Shares~~ shares of Common Stock to be purchased pursuant to such ~~Exercise~~ Notice of Issuance. For any reason at any time, upon the written or oral request of the Holder, the Company shall within one (1) Business Day confirm orally and in writing or by electronic mail to the Holder the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Sharesof Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including ~~this Warrant~~the Rights, by the Holder and ~~the~~ any other Attribution ~~Parties~~ Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of shares of Common Stock to the Holder upon exercise of ~~this Warrant~~ the Rights results in the ~~Holder, together with~~ Holder and the other Attribution ~~Parties,~~ Parties being deemed to beneficially own, in the aggregate, more than the ~~Maximum Percentage~~ Beneficial Ownership Limitation of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the ~~Exchange~~ 1934 Act), the number of shares so issued by which the Holder~~’s, together with~~ ’s and the other Attribution Parties’, ’ aggregate beneficial ownership exceeds the ~~Maximum Percentage~~ Beneficial Ownership Limitation (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder ~~and/or the Attribution Parties~~ shall not have the power to vote or to transfer the Excess Shares. ~~As soon as reasonably practicable after the issuance~~ Upon delivery of ~~the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By~~ a written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase (with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease the ~~Maximum Percentage~~ Beneficial Ownership Limitation to any other percentage not in excess of ~~19.99~~9.99% as specified in such notice; provided that (i) any such increase in the ~~Maximum Percentage~~ Beneficial Ownership Limitation will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company and ~~shall not negatively affect~~ (ii) any ~~partial exercise effected prior~~ such increase or decrease will apply only to ~~such change. (b) This Section 11 shall not restrict~~ the ~~number of shares of Common Stock which a~~ Holder or and the other Attribution Parties ~~may receive or beneficially own in order~~ and not to ~~determine~~ any other holder of Rights that is not an Attribution Party of the ~~amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant~~Holder. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of ~~this Warrant~~ the Rights hereunder in excess of the ~~Maximum Percentage~~ Beneficial Ownership Limitation shall not be deemed to be beneficially owned by the Holder ~~or the Attribution Parties~~ for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the ~~Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1)~~1934 Act. No prior inability to exercise ~~this Warrant~~ any Rights pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 13.8 to the extent necessary to correct this paragraph (or any portion of this ~~paragraph~~ paragraph) which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 13.8 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of Rights. For the purpose of this ~~Warrant~~Agreement: (x) “Attribution Parties” means, collectively, the following Persons and entities: (i) any investment vehicle, including, any funds, feeder funds or managed accounts, currently, or from time to time after the date hereof, directly or indirectly managed or advised by the Holder’s investment manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of the Holder or any of the foregoing, (iii) any Person acting or who could be deemed to be acting as a Group together with the Holder or any of the foregoing and (iv) any other Persons whose beneficial ownership of the Company’s Common Stock would or could be aggregated with the Holder’s and the other Attribution Parties for purposes of Section 13(d) of the 1934 Act. For clarity, the purpose of the foregoing is to subject collectively the Holder and all other Attribution Parties to the Beneficial Ownership Limitation, (y) “Group” means a “group” as that term is used in Section 13(d) of the 1934 Act and as defined in Rule 13d-5 thereunder and (z) “Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with, such Person, it being understood for purposes of this definition that “control” of a Person means the power directly or indirectly either to vote 10% or more of the stock having ordinary voting power for the election of directors of such Person or direct or cause the direction of the management and policies of such Person whether by contract or otherwise.

Appears in 1 contract

Sources: Waiver, Repayment and Exchange Agreement (Workhorse Group Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect ~~the~~ any exercise ~~of any portion~~ of this Warrant, and the Holder of shall not be entitled to exercise this Warrant ~~shall not have the right to exercise any portion~~ for a number of ~~the Warrant~~Warrant Shares in excess of that number of Warrant Shares which, ~~and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that~~ upon giving effect or immediately prior to ~~or following~~ such exercise, would cause (i) the aggregate number of shares of Common Stock beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of shares of Common Stock would be aggregated with the Holder~~, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with~~ ’s for purposes of Section 13(d) of the Exchange ~~Act and the rules promulgated thereunder~~Act, ~~in excess of a percentage set at the discretion of each Holder between 0% and~~ to exceed 19.99% (the “Maximum Percentage”) of the ~~Common Stock that would be~~ total number of issued and outstanding shares of Common Stock of the Company following such exercise~~. The initial Maximum Percentage is [•]%. For purposes~~ , or (ii) the combined voting power of ~~calculating~~ the securities of the Company beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership ~~for determining whether the Maximum Percentage is or will be exceeded, the aggregate number~~ of shares of Common Stock ~~held and/or beneficially owned by the Holder together~~ would be aggregated with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For Holder’s for purposes of ~~this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with~~ Section 13(d) of the Exchange Act to exceed 19.99% of the combined voting power of all of the securities of the Company then outstanding following such exercise; provided, however, that the Holder shall be permitted to exercise this Warrant for a number of Warrant Shares in excess of the Maximum Percentage upon receipt of such approval as may be required by the applicable rules and regulations of The Nasdaq Stock Market, LLC (or any successor entity) (“Nasdaq”), if any, from the ~~rules promulgated thereunder~~stockholders of the Company with respect to a change of control of the Company pursuant to Section 5635(b) of the Listing Rules of Nasdaq resulting from the beneficial ownership in excess of 19.99% of the Company’s outstanding Common Stock upon the issuance of the Warrant Shares (“Stockholder Approval”). For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Form 10-K, Q or Form 10-~~Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission~~K, as the case may be, filed with the Commission prior to the date hereof, (2y) a more recent public announcement by the Company or (3z) any other notice by the Company ~~or the Company’s transfer agent~~ setting forth the number of shares of Common Stock ~~outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~outstanding. ~~For any reason at any time, upon~~ Upon the written ~~or oral~~ request of the Holder, the Company shall within ~~one~~ three (3) Trading ~~Day~~ Days confirm ~~orally and~~ in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder ~~and the Attribution Parties~~ since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the such number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shareswas reported. By written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any such increase ~~in the Maximum Percentage~~ will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company; provided, however, that the Holder shall be permitted to increase the Maximum Percentage upon receipt of Stockholder Approval. For purposes of this Section 12(a), the aggregate number of shares of Common Stock or voting securities beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Shares would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act shall include the shares of Common Stock issuable upon the exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (x) exercise of the remaining unexercised and non-cancelled portion of this Warrant by the Holder and (y) exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including without limitation any securities of the Company which would entitle the holder thereof to acquire at any time shares of Common Stock, including without limitation any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares of Common Stock), is subject to a limitation on conversion or exercise analogous to the limitation contained herein and ~~shall not negatively affect~~ is beneficially owned by the Holder or any ~~partial exercise effected prior to such change~~of its Affiliates and other Persons whose beneficial ownership of shares of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act. (b) This Section 11 12 shall not restrict the number of shares of Common Stock which a Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Underwriting Agreement (Elicio Therapeutics, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary ~~contained~~ herein, the Company shall not effect ~~the~~ any exercise ~~of any portion~~ of this Warrant, and the ~~Holder of~~ holder shall not be entitled to exercise this Warrant ~~shall not have the right to exercise any portion~~ for a number of ~~the Warrant~~Warrant Shares in excess of that number of Warrant Shares which, ~~and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that~~ upon giving effect or immediately prior to ~~or following~~ such exercise, would cause (i) the aggregate number of shares of Common Stock beneficially owned by the Holder, ~~together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with~~ its Affiliates and any Persons who are members of a Section 13(d) ~~of the Exchange Act and the rules promulgated thereunder, in excess of a percentage set at the discretion of each~~ group with such Holder ~~between 0% and 19.99%~~ or its Affiliates to exceed [4.99%/9.99%/19.99%] (the “Maximum Percentage”) of the total number of issued and outstanding shares of Common Stock ~~that would be issued~~ of the Company following such exercise, or (ii) the combined voting power of the securities of the Company beneficially owned by the Holder and its Affiliates and any other Persons who are members of a Section 13(d) group with such Holder or its Affiliates to exceed the Maximum Percentage of the combined voting power of all of the securities of the Company then outstanding following such exercise. The initial Maximum Percentage is [•]%. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this ~~Paragraph 11(a)~~paragraph, beneficial ownership and whether a holder is a member of ~~the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence,~~ a Section 13(d) group shall be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Quarterly Report on Form 10-Q or Annual Report on Form 10-K~~, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission~~, as the case may be, filed with the Commission prior to the date hereof, (2y) a more recent public announcement by the Company or (3z) any other notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent setting forth the number of shares of Common Stock ~~outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~outstanding. ~~For any reason at any time, upon~~ Upon the written ~~or oral~~ request of the Holder, the Company shall within ~~one~~ three (3) Trading ~~Day~~ Days confirm ~~orally and~~ in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder ~~and the Attribution Parties~~ since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the such number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shareswas reported. By written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage specified not in excess of 19.99% specified in such notice; provided that any such increase ~~in the Maximum Percentage~~ will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company. For purposes of this Section 11(a), the aggregate number of shares of Common Stock or voting securities beneficially owned by the Holder and its Affiliates and any other Persons who are members of a Section 13(d) group with such Holder or its Affiliates shall include the shares of Common Stock issuable upon (x) the exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon exercise of the remaining unexercised and non-cancelled portion of this Warrant by the Holder and (y) the exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including without limitation any securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including without limitation any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock), is subject to a limitation on conversion or exercise analogous to the limitation contained herein and ~~shall not negatively affect~~ is beneficially owned by the Holder or any ~~partial exercise effected prior to~~ of its Affiliates and other Persons who are members of a Section 13(d) group with such ~~change~~Holder or its Affiliates. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Underwriting Agreement (Rezolute, Inc.)

Limitations on Exercise. ~~(a)~~ a. Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not ~~have the right to~~ exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99%~~ [4.99%/9.99%] (the “Maximum Percentage”) of the Common ~~Stock~~ Shares that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of ~~shares of~~ Common ~~Stock~~ Shares held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of ~~shares of~~ Common ~~Stock~~ Shares held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of ~~shares of~~ Common ~~Stock~~ Shares issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of ~~shares of~~ Common ~~Stock~~ Shares which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible ~~stock~~ shares or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this ~~Paragraph~~ Section 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding ~~shares of~~ Common ~~Stock~~Shares, a Holder of this Warrant may rely on the number of outstanding ~~shares of~~ Common ~~Stock~~ Shares as reflected in (1) the Company’s most recent Form 1020-KF, Form ~~10-Q, Current Report on Form 8~~6-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of ~~shares of~~ Common ~~Stock~~ Shares outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of ~~shares of~~ Common ~~Stock~~ Shares then outstanding. The Holder shall disclose to the Company the number of ~~shares of~~ Common ~~Stock~~ Shares that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding ~~shares of~~ Common ~~Stock~~ Shares is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of ~~shares of~~ Common ~~Stock~~ Shares then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding ~~shares of~~ Common ~~Stock~~ Shares shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common ~~Stock~~ Shares to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding ~~shares of~~ Common ~~Stock~~ Shares (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (Brazil Potash Corp.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99%~~ [4.99][9.99]% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one ~~Trading~~ (1) Business Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of ~~19.99%~~ [9.99][19.99]% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. If the Holder is not permitted to exercise this Warrant because exercise would result in the Holder and the other Attribution Parties exceeding the Maximum Percentage described in this Section 11(a), then the Holder may exercise this Warrant for an equivalent number of Pre-Funded Warrants. For the avoidance of doubt, the Holder may not exercise this Warrant into Pre-Funded Warrants in lieu of Warrant Shares under circumstances other than those expressly set forth in this Section 11(a). (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of (i) a Distribution as contemplated by Section 9(a), (ii) Purchase Rights as contemplated in Section 9(b) or (iii) a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (Verrica Pharmaceuticals Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not ~~have the right to~~ exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~9.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1Percentage (1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Exchange Agreement (Beta Bionics, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of ~~this~~ the Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~9.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this ~~Paragraph 11(a~~Section ‎11‎(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of ~~this~~ the Warrant, in determining the number of outstanding shares of Common Stock, a Holder of ~~this~~ the Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one ~~Trading Day~~ (1) business day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section ~~11(a~~‎11‎(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of ~~this~~ the Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 ‎11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section ~~9(c~~‎9‎(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 ‎11‎ to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 ‎11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Securities Purchase Agreement (Aerovate Therapeutics, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary ~~contained~~ herein, the Company shall not effect ~~the~~ any exercise ~~of any portion~~ of this Warrant, and the ~~Holder of~~ holder shall not be entitled to exercise this Warrant ~~shall not have the right to exercise any portion~~ for a number of ~~the Warrant~~Warrant ADSs in excess of that number of Warrant ADSs which, ~~and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that~~ upon giving effect or immediately prior to ~~or following~~ such exercise, would cause (i) the aggregate number of Ordinary Shares beneficially owned by the Holder, ~~together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with~~ its Affiliates and any Persons who are members of a Section 4873-2715-9305 v.3 13(d) ~~of the Exchange Act and the rules promulgated thereunder, in excess of a percentage set at the discretion of each~~ group with such Holder ~~between 0% and 19.99~~or its Affiliates to exceed 9.99% (the “‘‘Maximum Percentage”) of the ~~Common Stock that would be~~ total number of issued and outstanding Ordinary Shares of the Company following such exercise, or (ii) the combined voting power of the securities of the Company beneficially owned by the Holder and its Affiliates and any other Persons who are members of a Section 13(d) group with such Holder or its Affiliates to exceed the Maximum Percentage of the combined voting power of all of the securities of the Company then outstanding following such exercise. The initial Maximum Percentage is [•]%. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this ~~Paragraph 11(a)~~paragraph, beneficial ownership and whether a holder is a member of ~~the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence,~~ a Section 13(d) group shall be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding ~~shares of Common Stock~~Ordinary Shares (including Ordinary Shares underlying outstanding ADSs), a the Holder ~~of this Warrant~~ may rely on the number of outstanding ~~shares of Common Stock~~ Ordinary Shares as reflected in (1x) the Company’s most recent ~~Form 10-K, Form 10-Q,~~ Current Report on Form 86-K reporting quarterly financial results of the Company or ~~other public filing with the Securities and Exchange Commission~~Annual Report on Form 20-F, as the case may be, filed with the Commission prior to the date hereof, (2y) a more recent public announcement by the Company or (3z) any other notice by the ~~Company~~ Company, the transfer agent for the Ordinary Shares or the ~~Company’s transfer agent~~ Depositary setting forth the number of ~~shares of Common Stock~~ Ordinary Shares outstanding (~~such issued and~~ including Ordinary Shares underlying outstanding ~~shares, the “Reported Outstanding Share Number”~~ADSs). ~~For any reason at any time, upon~~ Upon the written ~~or oral~~ request of the Holder, the Company shall within ~~one~~ three (3) Trading ~~Day~~ Days confirm ~~orally and~~ in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock Ordinary Shares then outstanding ~~and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a~~(including Ordinary Shares underlying outstanding ADSs), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding ~~shares of Common Stock~~ Ordinary Shares (including Ordinary Shares underlying outstanding ADSs) shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder ~~and the Attribution Parties~~ since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the such number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Ordinary Shares ~~has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares~~was reported. By written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage specified not in excess of 19.99% specified in such notice; provided that any such increase ~~in the Maximum Percentage~~ will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company. For purposes of this Section 1l(a), the aggregate number of Ordinary Shares or voting securities beneficially owned by the Holder and its Affiliates and any other Persons who are members of a Section 13(d) group with such Holder or its Affiliates shall include the ADSs (and underlying Warrant Shares) issuable upon (x) the exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of Warrant ADSs which would be issuable upon exercise of the remaining unexercised and non-cancelled portion of this Warrant by the Holder and (y) the exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including without limitation any securities of the Company which would entitle the holder thereof to acquire at any time ADSs or Ordinary Shares, including without limitation any debt, preferred shares, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, ADSs or Ordinary Shares), is subject to a limitation on conversion or exercise analogous to the limitation contained herein and ~~shall not negatively affect~~ is beneficially owned by the Holder or any ~~partial exercise effected prior to~~ of its Affiliates and other Persons who are members of a Section 13(d) group with such ~~change~~Holder or its Affiliates. (b) This Section 11 shall not restrict the number of ~~shares of Common Stock~~ ADSs which a Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder 9 of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (Mesoblast LTD)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~9.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this ~~Paragraph~~ Section 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one (1) Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (Verastem, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~9.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the ~~Securities and Exchange~~ Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one ~~Trading Day~~ (1) business day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (Oruka Therapeutics, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect ~~the~~ any exercise ~~of any portion~~ of this Warrant, and the Holder of shall not be entitled to exercise this Warrant ~~shall not have the right to exercise any portion~~ for a number of ~~the Warrant~~Warrant Shares in excess of that number of Warrant Shares which, ~~and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that~~ upon giving effect or immediately prior to ~~or following~~ such exercise, would cause (i) the aggregate number of Common Shares beneficially owned by the Holder, ~~together~~ its Affiliates and any other Persons whose beneficial ownership of Common Shares would be aggregated with the ~~Attribution Parties, beneficially owns or would beneficially own as determined in accordance with~~ Holder’s for purposes of Section 13(d) of the Exchange Act ~~and the rules promulgated thereunder, in excess~~ (such as any other members of a ~~percentage set at the discretion of each Holder between 0% and 19.99~~Section 13(d) “group”) to exceed 9.99% (the “Maximum Percentage”) of the ~~Common Stock that would be~~ total number of issued and outstanding Common Shares of the Company following such exercise~~. The initial Maximum Percentage is [•]%. For purposes~~ , or (ii) the combined voting power of ~~calculating beneficial ownership for determining whether~~ the ~~Maximum Percentage is or will be exceeded,~~ securities of the ~~aggregate number of shares of Common Stock held and/or~~ Company beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and ~~(ii) exercise or conversion of the unexercised or unconverted portion of~~ its Affiliates and any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), Persons whose beneficial ownership of Common Shares would be aggregated with the ~~Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with~~ Holder’s for purposes of Section 13(d) of the Exchange Act ~~and~~ (such as any other members of a Section 13(d) “group”) to exceed 9.99% of the ~~rules promulgated thereunder~~combined voting power of all of the securities of the Company then outstanding following such exercise. For purposes of this Warrant, in determining the number of outstanding ~~shares of~~ Common ~~Stock~~Shares, a the Holder ~~of this Warrant~~ may rely on the number of outstanding ~~shares of~~ Common ~~Stock~~ Shares as reflected in (1x) the Company’s most recent Form 10-K, Q or Form 10-~~Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission~~K, as the case may be, filed with the Commission prior to the date hereof, (2y) a more recent public announcement by the Company or (3z) any other notice by the Company or ~~the Company’s~~ its transfer agent setting forth the number of ~~shares of~~ Common ~~Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~Shares outstanding. ~~For any reason at any time, upon~~ Upon the written ~~or oral~~ request of the Holder, the Company shall within ~~one~~ two (2) Trading ~~Day~~ Days confirm ~~orally and~~ in writing or by electronic mail to the Holder the number of ~~shares of~~ Common ~~Stock~~ Shares then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding ~~shares of~~ Common ~~Stock~~ Shares shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder ~~and the Attribution Parties~~ since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the such number of outstanding ~~shares of~~ Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares ~~has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares~~was reported. By written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage specified not in excess of ~~19.99~~9.99% as specified in such notice; provided that any such increase ~~in the Maximum Percentage~~ will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company. For purposes of this Section 11(a), the aggregate number of Common Shares or voting securities beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Shares would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act (such as any other members of a Section 13(d) “group”) shall include the Common Shares issuable upon the exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of Common Shares which would be issuable upon (x) exercise of the remaining unexercised and non-cancelled portion of this Warrant by the Holder and (y) exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including without limitation any securities of the Company which would entitle the holder thereof to acquire at any time Common Shares, including without limitation any debt, preferred share, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Shares), is subject to a limitation on conversion or exercise analogous to the limitation contained herein and ~~shall not negatively affect~~ is beneficially owned by the Holder or any ~~partial exercise effected prior to~~ of its Affiliates and other Persons whose beneficial ownership of Common Shares would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act (such ~~change~~as any other members of a Section 13(d) “group”). (b) This Section 11 shall not restrict the number of ~~shares of~~ Common ~~Stock which~~ Shares that a Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Security Agreement (Milestone Pharmaceuticals Inc.)

Limitations on Exercise. ~~(a)~~ Notwithstanding anything to the contrary contained herein, the ~~Company shall not effect the exercise~~ number of ~~any portion of this Warrant, and~~ Warrant Shares that may be acquired by the Holder upon any exercise of this Warrant ~~shall not have the right to exercise any portion of the Warrant, and any such exercise~~ (or otherwise in respect hereof) shall be ~~null and void ab initio and treated as if the exercise had not been made,~~ limited to the extent ~~that immediately prior~~ necessary to or ensure that, following such ~~exercise~~exercise (or other issuance), the ~~Holder, together~~ total number of shares of Common Stock then beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the ~~Attribution Parties, beneficially owns or would beneficially own as determined in accordance with~~ Holder’s for purposes of Section 13(d) of the Exchange ~~Act and the rules promulgated thereunder~~Act, ~~in excess of a percentage set at the discretion of each Holder between 0% and 19.99~~does not exceed 4.99% (the “Maximum Percentage”) of the ~~Common Stock that would be~~ total number of then issued and outstanding ~~following~~ shares of Common Stock (including for such purpose the shares of Common Stock issuable upon such exercise~~. The initial Maximum Percentage is [•]%~~). For purposes of ~~calculating beneficial ownership for determining whether~~ the ~~Maximum Percentage is or will be exceeded~~foregoing sentence, the aggregate number of shares of Common Stock ~~held and/or~~ beneficially owned by the Holder ~~together with the Attribution Parties,~~ and its affiliates shall include ~~the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus~~ the number of shares of Common Stock issuable upon exercise of ~~the relevant~~ this Warrant with respect to which the determination of such sentence is being ~~made~~ made, but shall exclude ~~the number of~~ shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised portion of this Warrant ~~held and/or~~ beneficially owned by ~~the Holder or the Attribution Parties~~ such Person and its affiliates and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company ~~held and/or~~ beneficially owned by ~~such~~ the Holder ~~or any Attribution Party~~ and its affiliates (including, without limitation, any convertible ~~notes,~~ notes or convertible preferred stock or ~~warrants~~Warrants) ~~that are~~ subject to a limitation on conversion or exercise analogous to the limitation contained herein~~. For purposes~~ ; provided that in no event shall the aggregate number of ~~this Paragraph 11(a)~~shares beneficially owned by the Holder and its affiliates, ~~beneficial ownership~~ calculated in accordance with Section 13(d) of the ~~Holder or the Attribution Parties shall~~Exchange Act, ~~except~~ exceed 9.99%). Except as set forth in the preceding sentence (other than the proviso thereto), for purposes of this paragraph (including the proviso in the immediately preceding sentence), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act; it being acknowledged by the Holder that the Company is not representing to such Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and such Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section 13 applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by such Holder) and of which a portion of this Warrant is exercisable shall be in the sole discretion of a Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by such Holder) and of which portion of this Warrant is exercisable, in each case subject to such aggregate percentage limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this ~~Warrant~~Section 13, in determining the number of outstanding shares of Common Stock, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Form 10-K, Q or Form 10-~~Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission~~K, as the case may be, (2y) a more recent public announcement by the Company or (3z) any other notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent setting forth the number of shares of Common Stock ~~outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~outstanding. ~~For any reason at any time, upon~~ Upon the written ~~or oral~~ request of the Holder, the Company shall within one (1) Trading Day confirm ~~orally and~~ in writing ~~or by electronic mail~~ to ~~the~~ such Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including ~~this Warrant~~the Warrants, by the Holder and ~~the Attribution Parties~~ its affiliates since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the such number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shareswas reported. By written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of ~~19.99~~9.99% specified in such notice; provided that (i) any such increase ~~in the Maximum Percentage~~ will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the ~~Company~~ Company, and ~~shall not negatively affect~~ (ii) any ~~partial exercise effected prior to~~ such ~~change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder~~ increase or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant decrease will apply only to the ~~terms of this Warrant in excess of the Maximum Percentage shall~~ Holder and not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any ~~subsequent determination~~ other holder of ~~exercisability~~Warrants. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~11 to the extent necessary~~ 13 to correct this paragraph (or any portion ~~of this paragraph~~ hereof) which may be defective or inconsistent with the intended beneficial ownership limitation herein contained ~~in this Section 11~~ or to make changes or supplements necessary or desirable to properly give effect to such limitation~~. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant~~.

Appears in 1 contract

Sources: Underwriting Agreement (Augme Technologies, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the ~~Company shall not effect the exercise~~ number of ~~any portion of this Warrant, and~~ Warrant Shares that may be acquired by the Holder upon any exercise of this Warrant ~~shall not have the right to exercise any portion of the Warrant, and any such exercise~~ (or otherwise in respect hereof) shall be ~~null and void ab initio and treated as if the exercise had not been made,~~ limited to the extent ~~that immediately prior~~ necessary to or ensure that, following such ~~exercise~~exercise (or other issuance), the ~~Holder, together~~ total number of shares of Common Stock then beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the ~~Attribution Parties~~Holder’s for purposes of Section 13(d) of the Exchange Act, ~~beneficially owns or would beneficially own as~~ does not exceed 4.999% of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock issuable upon such exercise). For such purposes, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, . Each delivery of an Exercise Notice by the Holder will constitute a representation by the Holder that it has evaluated the limitation set forth in ~~excess of a percentage set at the discretion of each Holder between 0%~~ this Section and ~~19.99% (the “Maximum Percentage”)~~ determined that issuance of the ~~Common Stock that would be issued and outstanding following~~ full number of Warrant Shares requested in such ~~exercise~~Exercise Notice is permitted under this Section. The ~~initial Maximum Percentage is [•]%. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of~~ Company’s obligation to issue shares of Common Stock ~~held and/or beneficially owned by~~ in excess of the ~~Holder together with the Attribution Parties~~limitation referred to in this Section shall be suspended (and, except as provided below, shall ~~include the number of~~ not terminate or expire notwithstanding any contrary provisions hereof) until such time, if any, as such shares of Common Stock ~~held and/or beneficially owned by~~ may be issued in compliance with such limitation; provided, that, if, as of 5:00 p.m., New York City time, on the ~~Holder together with~~ Expiration Date, the ~~Attribution Parties plus~~ Company has not received written notice that the ~~number of~~ shares of Common Stock ~~issuable upon exercise of the relevant Warrant~~ may be issued in compliance with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such ~~Holder or any Attribution Party (including, without~~ limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of obligation to issue such shares ~~of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~shall terminate. For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This ~~Section 11~~ provision shall not restrict the number of shares of Common Stock which a Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section ~~9(c)~~ 8 of this Warrant. ~~For~~ By written notice to the Company, the Holder may waive the provisions of this Section but any such waiver will not be effective until the 61st day after such notice is delivered to the Company, nor will any such waiver effect any other Holder. (b) Notwithstanding anything to the contrary contained herein, the number of Warrant Shares that may be acquired by the Holder upon any exercise of this Warrant (or otherwise in respect hereof) shall be limited to the extent necessary to ensure that, following such exercise (or other issuance), the total number of shares of Common Stock then beneficially owned by such Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of ~~clarity~~Section 13(d) of the Exchange Act, does not exceed 9.999% of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock issuable ~~pursuant to the terms of this Warrant~~ upon such exercise). For such purposes, beneficial ownership shall be determined in ~~excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of~~ accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated ~~thereunder or~~ thereunder. Each delivery of an Exercise Notice hereunder will constitute a representation by the Holder that it has evaluated the limitation set forth in this Section 16 and determined that issuance of the ~~Exchange Act and~~ full number of Warrant Shares requested in such Exercise Notice is permitted under this Section. The Company’s obligation to issue shares of Common Stock in excess of the ~~rules promulgated thereunder~~limitation referred to in this Section shall be suspended (and, ~~including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph~~ except as provided below, shall ~~have~~ not terminate or expire notwithstanding any ~~effect~~ contrary provisions hereof) until such time, if any, as such shares of Common Stock may be issued in compliance with such limitation; provided, that, if, as of 5:00 p.m., New York City time, on the ~~applicability~~ Expiration Date, the Company has not received written notice that the shares of Common Stock may be issued in compliance with such limitation, the Company’s obligation to issue such shares shall terminate. This provision shall not restrict the number of shares of Common Stock which a Holder may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder may receive in the event of a Fundamental Transaction as contemplated in Section 8 of this Warrant. By written notice to the Company, the Holder may waive the provisions of this ~~paragraph with respect to~~ Section but any ~~subsequent determination of exercisability. The provisions of this paragraph shall~~ such waiver will not be ~~construed and implemented in a manner otherwise than in strict conformity with~~ effective until the ~~terms of this Section 11~~ 61st day after such notice is delivered to the ~~extent necessary to correct this paragraph or~~ Company, nor will any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give such waiver effect ~~to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant~~any other Holder.

Appears in 1 contract

Sources: Securities Agreement (International Fight League, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect ~~the~~ any exercise ~~of any portion~~ of this Warrant, and the Holder of shall not be entitled to exercise this Warrant ~~shall not have the right to exercise any portion~~ for a number of ~~the Warrant~~Warrant Shares in excess of that number of Warrant Shares which, ~~and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that~~ upon giving effect or immediately prior to ~~or following~~ such exercise, would cause (i) the aggregate number of shares of Common Stock beneficially owned by the Holder, ~~together~~ its Affiliates and any other Persons whose beneficial ownership of shares of Common Stock would be aggregated with the ~~Attribution Parties, beneficially owns or would beneficially own as determined in accordance with~~ Holder’s for purposes of Section 13(d) of the Exchange Act ~~and the rules promulgated thereunder, in excess~~ (such as any other members of a ~~percentage set at the discretion of each Holder between 0% and 19.99%~~ Section 13(d) “group”), to exceed [4.99%] [9.99%] (the “Maximum Percentage”) of the ~~Common Stock that would be~~ total number of issued and outstanding shares of Common Stock of the Company following such exercise~~. The initial Maximum Percentage is [•]%. For purposes~~ , or (ii) the combined voting power of ~~calculating~~ the securities of the Company beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership ~~for determining whether the Maximum Percentage is or will be exceeded, the aggregate number~~ of shares of Common Stock ~~held and/or beneficially owned by the Holder together~~ would be aggregated with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For Holder’s for purposes of ~~this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with~~ Section 13(d) of the Exchange Act ~~and~~ (such as any other members of a Section 13(d) “group”) to exceed [4.99%] [9.99%] of the ~~rules promulgated thereunder~~combined voting power of all of the securities of the Company then outstanding following such exercise. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Quarterly Report on Form 10-Q or Annual Report on Form 10-K~~, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission~~, as the case may be, filed with the Commission prior to the date hereof, (2y) a more recent public announcement by the Company or (3z) any other notice by the Company or ~~the Company’s transfer agent~~ its Transfer Agent setting forth the number of shares of Common Stock ~~outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~outstanding. ~~For any reason at any time, upon~~ Upon the written ~~or oral~~ request of the Holder, the Company shall within ~~one~~ two (2) Trading ~~Day~~ Days confirm ~~orally and~~ in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder ~~and the Attribution Parties~~ since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the such number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shareswas reported. By written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage specified not in excess of 19.99% specified in such notice; provided that any such increase ~~in the Maximum Percentage~~ will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company. For purposes of this Section 11(a), the aggregate number of shares of Common Stock or voting securities beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of shares of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act (such as any other members of a Section 13(d) “group”) shall include the shares of Common Stock issuable upon the exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (x) exercise of the remaining unexercised and non-cancelled portion of this Warrant by the Holder and (y) exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including, without limitation, any securities of the Company which would entitle the holder thereof to acquire at any time shares of Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares of Common Stock), is subject to a limitation on conversion or exercise analogous to the limitation contained herein and ~~shall not negatively affect~~ is beneficially owned by the Holder or any ~~partial exercise effected prior to~~ of its Affiliates and other Persons whose beneficial ownership of shares of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act (such ~~change~~as any other member of a Section 13(d) “group”). (b) This Section 11 shall not restrict the number of shares of Common Stock ~~which~~ that a Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Underwriting Agreement (Tarsus Pharmaceuticals, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~49.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one ~~Trading Day~~ business day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of ~~19.99~~49.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section ~~9(c~~9(d) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (AEON Biopharma, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~[[4.99][9.99]] % (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this ~~Paragraph~~ Section 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the ~~Securities and Exchange~~ Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares, if any. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this ~~paragraph~~ Section 11 shall have any effect on the applicability of the provisions of this ~~paragraph~~ Section 11 with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this ~~paragraph~~ Section 11 or any portion of this ~~paragraph~~ Section 11 which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this ~~paragraph~~ Section 11 may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (Kalaris Therapeutics, Inc.)

Limitations on Exercise. ~~(a)~~ Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not US-DOCS\165270001.2 have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~9.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one ~~Trading Day~~ business day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.of

Appears in 1 contract

Sources: Warrant Agreement (AEON Biopharma, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary ~~contained~~ herein, the Company shall not effect ~~the~~ any exercise ~~of any portion~~ of this Warrant, and the ~~Holder of~~ holder shall not be entitled to exercise this Warrant ~~shall not have the right to exercise any portion~~ for a number of ~~the Warrant~~Warrant ADSs in excess of that number of Warrant ADSs which, ~~and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that~~ upon giving effect or immediately prior to ~~or following~~ such exercise, would cause (i) the aggregate number of Ordinary Shares beneficially owned by the Holder, ~~together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with~~ its Affiliates and any Persons who are members of a Section 13(d) ~~of the Exchange Act and the rules promulgated thereunder, in excess of a percentage set at the discretion of each~~ group with such Holder ~~between 0% and 19.99~~or its Affiliates to exceed 9.99% (the “‘‘Maximum Percentage”) of the ~~Common Stock that would be~~ total number of issued and outstanding Ordinary Shares of the Company following such exercise, or (ii) the combined voting power of the securities of the Company beneficially owned 4846-2431-8974 v.13 by the Holder and its Affiliates and any other Persons who are members of a Section 13(d) group with such Holder or its Affiliates to exceed the Maximum Percentage of the combined voting power of all of the securities of the Company then outstanding following such exercise. The initial Maximum Percentage is [•]%. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this ~~Paragraph 11(a)~~paragraph, beneficial ownership and whether a holder is a member of ~~the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence,~~ a Section 13(d) group shall be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding ~~shares of Common Stock~~Ordinary Shares (including Ordinary Shares underlying outstanding ADSs), a the Holder ~~of this Warrant~~ may rely on the number of outstanding ~~shares of Common Stock~~ Ordinary Shares as reflected in (1x) the Company’s most recent ~~Form 10-K, Form 10-Q,~~ Current Report on Form 86-K reporting quarterly financial results of the Company or ~~other public filing with the Securities and Exchange Commission~~Annual Report on Form 20-F, as the case may be, filed with the Commission prior to the date hereof, (2y) a more recent public announcement by the Company or (3z) any other notice by the ~~Company~~ Company, the transfer agent for the Ordinary Shares or the ~~Company’s transfer agent~~ Depositary setting forth the number of ~~shares of Common Stock~~ Ordinary Shares outstanding (~~such issued and~~ including Ordinary Shares underlying outstanding ~~shares, the “Reported Outstanding Share Number”~~ADSs). ~~For any reason at any time, upon~~ Upon the written ~~or oral~~ request of the Holder, the Company shall within ~~one~~ three (3) Trading ~~Day~~ Days confirm ~~orally and~~ in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock Ordinary Shares then outstanding ~~and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a~~(including Ordinary Shares underlying outstanding ADSs), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding ~~shares of Common Stock~~ Ordinary Shares (including Ordinary Shares underlying outstanding ADSs) shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder ~~and the Attribution Parties~~ since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the such number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Ordinary Shares ~~has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares~~was reported. By written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage specified not in excess of 19.99% specified in such notice; provided that any such increase ~~in the Maximum Percentage~~ will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company. For purposes of this Section 1l(a), the aggregate number of Ordinary Shares or voting securities beneficially owned by the Holder and its Affiliates and any other Persons who are members of a Section 13(d) group with such Holder or its Affiliates shall include the ADSs (and underlying Warrant Shares) issuable upon (x) the exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of Warrant ADSs which would be issuable upon exercise of the remaining unexercised and non-cancelled portion of this Warrant by the Holder and (y) the exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including without limitation any securities of the Company which would entitle the holder thereof to acquire at any time ADSs or Ordinary Shares, including without limitation any debt, preferred shares, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, ADSs or Ordinary Shares), is subject to a limitation on conversion or exercise analogous to the limitation contained herein and ~~shall not negatively affect~~ is beneficially owned by the Holder or any ~~partial exercise effected prior to~~ of its Affiliates and other Persons who are members of a Section 13(d) group with such ~~change~~Holder or its Affiliates. (b) This Section 11 shall not restrict the number of ~~shares of Common Stock~~ ADSs which a Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder 9 of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (Mesoblast LTD)

Limitations on Exercise. ~~(a) Notwithstanding anything to the contrary contained herein, the~~ The Company shall not effect the exercise of any ~~portion of this Warrant~~Rights, and ~~the Holder of this Warrant~~ no Buyer shall ~~not~~ have the right to exercise any portion of any Rights pursuant to the ~~Warrant,~~ terms and conditions of this Agreement and any such exercise shall be null and void ~~ab initio~~ and treated as if ~~the exercise had not been~~ never made, to the extent that ~~immediately prior~~ after giving effect to ~~or following~~ such exercise, ~~the Holder,~~ such Buyer together with ~~the~~ its other Attribution ~~Parties, beneficially owns or~~ Parties (as defined below) collectively would beneficially own ~~as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder,~~ in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~9.99% (the “~~Maximum Percentage~~Beneficial Ownership Limitation”) of the ~~Common Stock that would be issued and~~ Ordinary Shares outstanding ~~following~~ immediately after giving effect to such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of ~~calculating beneficial ownership for determining whether~~ the ~~Maximum Percentage is or will be exceeded~~foregoing sentence, the aggregate number of shares of ~~Common Stock held and/or~~ Ordinary Shares beneficially owned by ~~the Holder together with the~~ such Buyer and its other Attribution ~~Parties,~~ Parties shall include the number of ~~shares~~ Ordinary Shares held by such Buyer and all of ~~Common Stock held and/or beneficially owned by the Holder together with the~~ its other Attribution Parties plus the number of ~~shares of Common Stock~~ Ordinary Shares issuable upon exercise of the ~~relevant Warrant~~ Rights issued hereunder with respect to which the determination of such sentence is being ~~made~~ made, but shall exclude ~~the number of shares of Common Stock~~ Ordinary Shares which would be issuable upon (iA) exercise of the remaining, ~~unexercised Warrant held and/or~~ nonexercised portion of the Rights beneficially owned by ~~the Holder~~ such Buyer or ~~the~~ any of its other Attribution Parties and (iiB) exercise or conversion of the unexercised or ~~unconverted~~ nonconverted portion of any other securities of the Company ~~held and/or beneficially owned by such Holder or any Attribution Party~~ (including, without limitation, any convertible ~~notes,~~ notes or convertible preferred stock or warrants) ~~that are~~ beneficially owned by such Buyer or any other of its Attribution Parties subject to a limitation on conversion or exercise analogous to the limitation contained ~~herein~~in this Section 1(g). For purposes of this ~~Paragraph 11(a),~~ Section 1(g) beneficial ownership ~~of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence,~~ shall be calculated ~~and determined~~ in accordance with Section 13(d) of the Securities Exchange Act ~~and~~ of 1934, as amended (the ~~rules promulgated thereunder~~“1934 Act”). For purposes of ~~this Warrant, in~~ determining the number of outstanding ~~shares~~ Ordinary Shares any Buyer may acquire upon the exercise of ~~Common Stock~~the Rights without exceeding the Beneficial Ownership Limitation, ~~a Holder of this Warrant~~ each Buyer may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent ~~Form 10-K, Form 10-Q, Current~~ Annual Report on Form 820-F, Report of Foreign Issuer on Form 6-K or other public filing with the ~~Securities and Exchange Commission~~SEC, as the case may be, (2y) a more recent public announcement by the Company or (3z) any other written notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent, if any, setting forth the number of ~~shares of Common Stock~~ Ordinary Shares outstanding (~~such issued and outstanding shares,~~ the “Reported Outstanding Share Number”). If the Company receives an Exercise Notice from a Buyer at a time when the actual number of outstanding Ordinary Shares is less than the Reported Outstanding Share Number, the Company shall notify such Buyer in writing of the number of Ordinary Shares then outstanding and, to the extent that such Exercise Notice would otherwise cause such Buyer’s beneficial ownership, as determined pursuant to this Section 1(g), to exceed the Beneficial Ownership Limitation, such Buyer must notify the Company of a reduced number of Ordinary Shares to be purchased pursuant to such Exercise Notice. For any reason at any time, upon the written or oral request of ~~the Holder~~a Buyer, the Company shall within one (1) Trading Day confirm orally and in writing or by electronic mail to the ~~Holder~~ Investor the number of shares of ~~Common Stock~~ Ordinary Shares then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding ~~shares of Common Stock~~ Ordinary Shares shall be determined after giving effect to the conversion or exercise of securities of the Company, including ~~this Warrant~~the Rights, by ~~the Holder~~ a Buyer and ~~the~~ any of its other Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of ~~Common Stock~~ Ordinary Shares to ~~the Holder~~ a Buyer upon exercise of ~~this Warrant~~ the Rights results in ~~the Holder, together with the~~ such Buyer and its other Attribution ~~Parties,~~ Parties being deemed to beneficially own, in the aggregate, more than the ~~Maximum Percentage~~ Beneficial Ownership Limitation of the number of outstanding ~~shares of Common Stock~~ Ordinary Shares (as determined under Section 13(d) of the ~~Exchange~~ 1934 Act), the number of shares so issued by which the ~~Holder’s, together with~~ Investor’s and the other Attribution Parties’, ’ aggregate beneficial ownership exceeds the ~~Maximum Percentage~~ Beneficial Ownership Limitation (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and ~~the Holder and/or the Attribution Parties~~ such Buyer shall not have the power to vote or to transfer the Excess Shares. ~~As soon as reasonably practicable after the issuance~~ Upon delivery of ~~the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By~~ a written notice to the Company, ~~a Holder of this Warrant~~ any Buyer may from time to time increase (with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease the ~~Maximum Percentage~~ Beneficial Ownership Limitation to any other percentage not in excess of ~~19.99~~9.99% as specified in such notice; provided that (i) any such increase in the ~~Maximum Percentage~~ Beneficial Ownership Limitation will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company and ~~shall not negatively affect~~ (ii) any ~~partial exercise effected prior~~ such increase or decrease will apply only to such ~~change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the~~ Buyer and its other Attribution Parties ~~may receive or beneficially own in order~~ and not to ~~determine the amount~~ any other holder of ~~securities or other consideration~~ Rights that is not an Attribution Party of such ~~Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant~~Buyer. For purposes of clarity, the ~~shares of Common Stock~~ Ordinary Shares issuable pursuant to the terms of ~~this Warrant~~ the Rights hereunder in excess of the ~~Maximum Percentage~~ Beneficial Ownership Limitation shall not be deemed to be beneficially owned by ~~the Holder or the Attribution Parties~~ such applicable Buyer for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the ~~Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1)~~1934 Act. No prior inability to exercise ~~this Warrant~~ any Rights pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 1(g) to the extent necessary to correct this paragraph (or any portion of this ~~paragraph~~ paragraph) which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 1(g) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of Rights. Notwithstanding anything to the contrary contained in Section 1(f) of this ~~Warrant~~Agreement, the Rights (and Buyer’s right to send an Exercise Notice) shall extend until November 14, 2025 if, during the period starting the day following the initial Closing and ending on February 14, 2025 (the “Measurement Period”), the closing price of the Ordinary Shares for any 30 consecutive trading days during the Measurement Period fails to equal or exceed $4.00 on each day of the Measurement Period. For the purpose of this Agreement: (x) “Attribution Parties” means, collectively, the following Persons and entities: (i) any investment vehicle, including, any funds, feeder funds or managed accounts, currently, or from time to time after the date hereof, directly or indirectly managed or advised by such applicable Buyer’s investment manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of such applicable Buyer or any of the foregoing, (iii) any Person acting or who could be deemed to be acting as a Group together with such applicable Buyer or any of the foregoing and (iv) any other Persons whose beneficial ownership of the Company’s Ordinary Shares would or could be aggregated with such applicable Buyer’s and its other Attribution Parties for purposes of Section 13(d) of the 1934 Act. For clarity, the purpose of the foregoing is to subject collectively such applicable Buyer and all of its other Attribution Parties to the Beneficial Ownership Limitation, (y) “Group” means a “group” as that term is used in Section 13(d) of the 1934 Act and as defined in Rule 13d-5 thereunder and (z) “Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with, such Person, it being understood for purposes of this definition that “control” of a Person means the power directly or indirectly either to vote 10% or more of the stock having ordinary voting power for the election of directors of such Person or direct or cause the direction of the management and policies of such Person whether by contract or otherwise.

Appears in 1 contract

Sources: Securities Purchase Agreement (Kaixin Holdings)

Limitations on Exercise. ~~(a) Notwithstanding anything to the contrary contained herein, the~~ The Company shall not effect the exercise of any ~~portion of this Warrant~~Rights, and the Holder ~~of this Warrant~~ shall not have the right to exercise any portion of any Rights pursuant to the ~~Warrant,~~ terms and conditions of this Agreement and any such exercise shall be null and void ~~ab initio~~ and treated as if ~~the exercise had not been~~ never made, to the extent that ~~immediately prior~~ after giving effect to ~~or following~~ such exercise, the ~~Holder,~~ Holder together with the other Attribution ~~Parties, beneficially owns or~~ Parties (as defined below) collectively would beneficially own ~~as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder,~~ in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~9.99% (the “~~Maximum Percentage~~Beneficial Ownership Limitation”) of the shares of Lucid Common Stock ~~that would be issued and~~ outstanding ~~following~~ immediately after giving effect to such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of ~~calculating beneficial ownership for determining whether~~ the ~~Maximum Percentage is or will be exceeded~~foregoing sentence, the aggregate number of shares of Lucid Common Stock ~~held and/or~~ beneficially owned by the Holder ~~together with~~ and the other Attribution ~~Parties,~~ Parties shall include the number of shares of Lucid Common Stock held ~~and/or beneficially owned~~ by the Holder ~~together with the~~ and all other Attribution Parties plus the number of shares of Lucid Common Stock ~~issuable~~ transferable upon exercise of the ~~relevant Warrant~~ Rights issued hereunder with respect to which the determination of such sentence is being ~~made~~ made, but shall exclude ~~the number of~~ shares of Lucid Common Stock which would be issuable or transferable, as applicable, upon (iA) exercise of the remaining, ~~unexercised Warrant held and/or~~ nonexercised portion of the Rights beneficially owned by the Holder or any of the other Attribution Parties and (iiB) exercise or conversion of the unexercised or ~~unconverted~~ nonconverted portion of any other securities of ~~the Company held and/or beneficially owned by such Holder or any Attribution Party~~ Lucid Diagnostics (including, without limitation, any convertible ~~notes,~~ notes or convertible preferred stock or warrants) ~~that are~~ beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained ~~herein~~in this Section 1(d)(v). For purposes of this ~~Paragraph 11(a),~~ Section 1(d)(v) beneficial ownership ~~of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence,~~ shall be calculated ~~and determined~~ in accordance with Section 13(d) of the Securities Exchange Act ~~and~~ of 1934, as amended (the ~~rules promulgated thereunder~~“1934 Act”). For purposes of ~~this Warrant, in~~ determining the number of outstanding shares of Lucid Common ~~Stock~~Stock the Holder may acquire upon the exercise of the Rights without exceeding the Beneficial Ownership Limitation, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Lucid Common Stock as reflected in (1x) ~~the Company’s~~ Lucid Diagnostics’ most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the ~~Securities and Exchange Commission~~SEC, as the case may be, (2y) a more recent public announcement by the Company or (3z) any other written notice by ~~the Company~~ L▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ or the ~~Company’s transfer agent~~ Lucid Transfer Agent, if any, setting forth the number of shares of Lucid Common Stock outstanding (~~such issued and outstanding shares,~~ the “Reported Outstanding Share Number”). If the Company receives a Notice of Required Transfer from the Holder at a time when the Company is aware that the actual number of outstanding shares of Lucid Common Stock is less than the Reported Outstanding Share Number, the Company shall notify the Holder in writing of the number of shares of Lucid Common Stock then outstanding, if known by the Company, and, to the extent that such Notice of Required Transfer would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this Section 1(d)(v), to exceed the Beneficial Ownership Limitation, the Holder must notify the Company of a reduced number of shares of Lucid Common Stock to be transferred pursuant to such Notice of Required Transfer. For any reason at any time, upon the written or oral request of the Holder, the Company shall within one ~~Trading~~ (1) Business Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Lucid Common Stock then outstanding~~. The Holder shall disclose to the Company the number of shares of Common Stock that it~~, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock if then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid known by the ~~Holder for the Reduction Shares~~Company. In any case, the number of outstanding shares of Lucid Common Stock shall be determined after giving effect to the conversion or exercise of securities of ~~the Company~~Lucid Diagnostics, including ~~this Warrant~~the Rights, by the Holder and ~~the~~ any other Attribution ~~Parties~~ Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the ~~issuance~~ transfer of shares of Lucid Common Stock to the Holder upon exercise of ~~this Warrant~~ the Rights results in the ~~Holder, together with~~ Holder and the other Attribution ~~Parties,~~ Parties being deemed to beneficially own, in the aggregate, more than the ~~Maximum Percentage~~ Beneficial Ownership Limitation of the number of outstanding shares of Lucid Common Stock (as determined under Section 13(d) of the ~~Exchange~~ 1934 Act), the number of shares so ~~issued~~ transferred by which the Holder~~’s, together with~~ ’s and the other Attribution Parties’, ’ aggregate beneficial ownership exceeds the ~~Maximum Percentage~~ Beneficial Ownership Limitation (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder ~~and/or the Attribution Parties~~ shall not have the power to vote or to transfer the Excess Shares. ~~As soon as reasonably practicable after the issuance~~ Upon delivery of ~~the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By~~ a written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase (with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease the ~~Maximum Percentage~~ Beneficial Ownership Limitation to any other percentage not in excess of ~~19.99~~9.99% as specified in such notice; provided that (i) any such increase in the ~~Maximum Percentage~~ Beneficial Ownership Limitation will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company and ~~shall not negatively affect~~ (ii) any ~~partial exercise effected prior~~ such increase or decrease will apply only to ~~such change. (b) This Section 11 shall not restrict~~ the ~~number of shares of Common Stock which a~~ Holder or and the other Attribution Parties ~~may receive or beneficially own in order~~ and not to ~~determine~~ any other holder of Rights that is not an Attribution Party of the ~~amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant~~Holder. For purposes of clarity, the shares of Lucid Common Stock ~~issuable~~ transferable pursuant to the terms of ~~this Warrant~~ the Rights hereunder in excess of the ~~Maximum Percentage~~ Beneficial Ownership Limitation shall not be deemed to be beneficially owned by the Holder ~~or the Attribution Parties~~ for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the ~~Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1)~~1934 Act. No prior inability to exercise ~~this Warrant~~ any Rights pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 1(d)(v) to the extent necessary to correct this paragraph (or any portion of this ~~paragraph~~ paragraph) which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 1(d)(v) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of Rights. For the purpose of this ~~Warrant~~Agreement: (x) “Attribution Parties” means, collectively, the following Persons and entities: (i) any investment vehicle, including, any funds, feeder funds or managed accounts, currently, or from time to time after the date hereof, directly or indirectly managed or advised by the Holder’s investment manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of the Holder or any of the foregoing, (iii) any Person acting or who could be deemed to be acting as a Group together with the Holder or any of the foregoing and (iv) any other Persons whose beneficial ownership of Lucid Common Stock would or could be aggregated with the Holder’s and the other Attribution Parties for purposes of Section 13(d) of the 1934 Act. For clarity, the purpose of the foregoing is to subject collectively the Holder and all other Attribution Parties to the Beneficial Ownership Limitation, (y) “Group” means a “group” as that term is used in Section 13(d) of the 1934 Act and as defined in Rule 13d-5 thereunder and (z) “Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with, such Person, it being understood for purposes of this definition that “control” of a Person means the power directly or indirectly either to vote 10% or more of the stock having ordinary voting power for the election of directors of such Person or direct or cause the direction of the management and policies of such Person whether by contract or otherwise.

Appears in 1 contract

Sources: Amendment Agreement (PAVmed Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this ~~Warrant~~Warrant (other than for Pre-Funded Warrants), and the Holder of this Warrant shall not ~~have the right to~~ exercise any portion of the ~~Warrant~~Warrant (other than for Pre-Funded Warrants), and any such exercise (other than for Pre-Funded Warrants) shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99%~~ [4.99][9.99]% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section ~~9(c~~9(d) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (Grace Therapeutics, Inc.)

Limitations on Exercise. ~~(a) Notwithstanding anything to the contrary contained herein, the~~ The Company shall not effect the exercise of any ~~portion of this Warrant~~Rights, and the Holder ~~of this Warrant~~ shall not have the right to exercise any portion of any Rights pursuant to the ~~Warrant,~~ terms and conditions of this Agreement and any such exercise shall be null and void ~~ab initio~~ and treated as if ~~the exercise had not been~~ never made, to the extent that ~~immediately prior~~ after giving effect to ~~or following~~ such exercise, the ~~Holder,~~ Holder together with the other Attribution ~~Parties, beneficially owns or~~ Parties (as defined below) collectively would beneficially own ~~as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder,~~ in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~4.99% (the “~~Maximum Percentage~~Beneficial Ownership Limitation”) of the shares of Common Stock ~~that would be issued and~~ outstanding ~~following~~ immediately after giving effect to such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of ~~calculating beneficial ownership for determining whether~~ the ~~Maximum Percentage is or will be exceeded~~foregoing sentence, the aggregate number of shares of Common Stock ~~held and/or~~ beneficially owned by the Holder ~~together with~~ and the other Attribution ~~Parties,~~ Parties shall include the number of shares of Common Stock held ~~and/or beneficially owned~~ by the Holder ~~together with the~~ and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the ~~relevant Warrant~~ Rights issued hereunder with respect to which the determination of such sentence is being ~~made~~ made, but shall exclude ~~the number of~~ shares of Common Stock which would be issuable upon (iA) exercise of the remaining, ~~unexercised Warrant held and/or~~ nonexercised portion of the Rights beneficially owned by the Holder or any of the other Attribution Parties and (iiB) exercise or conversion of the unexercised or ~~unconverted~~ nonconverted portion of any other securities of the Company ~~held and/or beneficially owned by such Holder or any Attribution Party~~ (including, without limitation, any convertible ~~notes,~~ notes or convertible preferred stock or warrants) ~~that are~~ beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained ~~herein~~in this Section 4.8. For purposes of this ~~Paragraph 11(a),~~ Section 4.8 beneficial ownership ~~of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence,~~ shall be calculated ~~and determined~~ in accordance with Section 13(d) of the Securities Exchange Act ~~and~~ of 1934, as amended (the ~~rules promulgated thereunder~~“1934 Act”). For purposes of ~~this Warrant, in~~ determining the number of outstanding shares of Common ~~Stock~~Stock the Holder may acquire upon the exercise of the Rights without exceeding the Beneficial Ownership Limitation, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the ~~Securities and Exchange Commission~~SEC, as the case may be, (2y) a more recent public announcement by the Company or (3z) any other written notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent, if any, setting forth the number of shares of Common Stock outstanding (~~such issued and outstanding shares,~~ the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives ~~an Exercise~~ a Notice of Issuance from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall ~~(i)~~ notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such ~~Exercise~~ Notice of Issuance would otherwise cause the Holder~~’s, together with the Attribution Parties’,~~ ’s beneficial ownership, as determined pursuant to this Section ~~11(a)~~4.8, to exceed the ~~Maximum Percentage~~Beneficial Ownership Limitation, the Holder must notify the Company of a reduced number of ~~Warrant Shares~~ shares of Common Stock to be purchased pursuant to such ~~Exercise~~ Notice of Issuance. For any reason at any time, upon the written or oral request of the Holder, the Company shall within one (1) Business Day confirm orally and in writing or by electronic mail to the Holder the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Sharesof Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including ~~this Warrant~~the Rights, by the Holder and ~~the~~ any other Attribution ~~Parties~~ Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of shares of Common Stock to the Holder upon exercise of ~~this Warrant~~ the Rights results in the ~~Holder, together with~~ Holder and the other Attribution ~~Parties,~~ Parties being deemed to beneficially own, in the aggregate, more than the ~~Maximum Percentage~~ Beneficial Ownership Limitation of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the ~~Exchange~~ 1934 Act), the number of shares so issued by which the Holder~~’s, together with~~ ’s and the other Attribution Parties’, ’ aggregate beneficial ownership exceeds the ~~Maximum Percentage~~ Beneficial Ownership Limitation (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder ~~and/or the Attribution Parties~~ shall not have the power to vote or to transfer the Excess Shares. ~~As soon as reasonably practicable after the issuance~~ Upon delivery of ~~the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By~~ a written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase (with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease the ~~Maximum Percentage~~ Beneficial Ownership Limitation to any other percentage not in excess of ~~19.99~~9.99% as specified in such notice; provided that (i) any such increase in the ~~Maximum Percentage~~ Beneficial Ownership Limitation will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company and ~~shall not negatively affect~~ (ii) any ~~partial exercise effected prior~~ such increase or decrease will apply only to ~~such change. (b) This Section 11 shall not restrict~~ the ~~number of shares of Common Stock which a~~ Holder or and the other Attribution Parties ~~may receive or beneficially own in order~~ and not to ~~determine~~ any other holder of Rights that is not an Attribution Party of the ~~amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant~~Holder. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of ~~this Warrant~~ the Rights hereunder in excess of the ~~Maximum Percentage~~ Beneficial Ownership Limitation shall not be deemed to be beneficially owned by the Holder ~~or the Attribution Parties~~ for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the ~~Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1)~~1934 Act. No prior inability to exercise ~~this Warrant~~ any Rights pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 4.8 to the extent necessary to correct this paragraph (or any portion of this ~~paragraph~~ paragraph) which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 4.8 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of Rights. For the purpose of this ~~Warrant~~Agreement: (x) “Attribution Parties” means, collectively, the following Persons and entities: (i) any investment vehicle, including, any funds, feeder funds or managed accounts, currently, or from time to time after the date hereof, directly or indirectly managed or advised by the Holder’s investment manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of the Holder or any of the foregoing, (iii) any Person acting or who could be deemed to be acting as a Group together with the Holder or any of the foregoing and (iv) any other Persons whose beneficial ownership of the Company’s Common Stock would or could be aggregated with the Holder’s and the other Attribution Parties for purposes of Section 13(d) of the 1934 Act. For clarity, the purpose of the foregoing is to subject collectively the Holder and all other Attribution Parties to the Beneficial Ownership Limitation, (y) “Group” means a “group” as that term is used in Section 13(d) of the 1934 Act and as defined in Rule 13d-5 thereunder and (z) “Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with, such Person, it being understood for purposes of this definition that “control” of a Person means the power directly or indirectly either to vote 10% or more of the stock having ordinary voting power for the election of directors of such Person or direct or cause the direction of the management and policies of such Person whether by contract or otherwise.

Appears in 1 contract

Sources: Amendment and Exchange Agreement (RiskOn International, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not ~~have the right to~~ exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99%~~ [4.99][9.99]% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (Shattuck Labs, Inc.)

Limitations on Exercise. ~~(a) Notwithstanding anything to the contrary contained herein, the~~ The Company shall not effect ~~the~~ any exercise ~~of any portion~~ of this Warrant, and the Holder ~~of this Warrant~~ shall not have the right to exercise any portion of ~~the~~ this Warrant, ~~and any such exercise shall be null and void ab initio and treated as if the exercise had not been made~~pursuant to SECTION 2.1 or otherwise, to the extent that ~~immediately prior~~ after giving effect to ~~or following~~ such issuance after exercise, the ~~Holder,~~ Holder (together with the ~~Attribution Parties, beneficially owns~~ Holder's affiliates and any other person or entity acting as a group together with Holder or any of Holder's affiliates) would beneficially own ~~as determined~~ in ~~accordance with Section 13(d~~excess of 9.99% (the "APPLICABLE PERCENTAGE") of the ~~Exchange Act and the rules promulgated thereunder, in excess~~ number of ~~a percentage set at the discretion of each Holder between 0% and 19.99% (the “Maximum Percentage”)~~ shares of the Common Stock ~~that would be issued and~~ outstanding ~~following~~ immediately after giving effect to such ~~exercise. The initial Maximum Percentage is [•]%~~issuance. For purposes of ~~calculating beneficial ownership for determining whether~~ the ~~Maximum Percentage is or will be exceeded~~foregoing sentence, ~~the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include~~ the number of shares of Common Stock ~~held and/or~~ beneficially owned by the Holder ~~together with the Attribution Parties plus~~ and its affiliates shall include the number of shares of Common Stock issuable upon exercise of ~~the relevant~~ this Warrant with respect to which the determination of such sentence is being ~~made~~ made, but shall exclude the number of shares of Common Stock which would be issuable upon (iA) exercise of the remaining, ~~unexercised~~ nonexercised portion of this Warrant ~~held and/or~~ beneficially owned by the Holder or ~~the Attribution Parties~~ any of its affiliates and (iiB) exercise or conversion of the unexercised or ~~unconverted~~ nonconverted portion of any other securities of the Company ~~held and/or beneficially owned by such Holder or any Attribution Party~~ (including, without limitation, any ~~convertible notes, convertible stock or~~ other warrants) ~~that are~~ subject to a limitation on conversion or exercise analogous to the limitation contained ~~herein. For purposes of this Paragraph 11(a), beneficial ownership of~~ herein beneficially owned by the Holder or ~~the Attribution Parties shall, except~~ any of its affiliates. Except as set forth in the ~~immediately~~ preceding sentence, for purposes of this SECTION 2.5, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. In addition, a determination as to any group status as contemplated above shall also be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this ~~Warrant~~SECTION 2.5, in determining the number of outstanding shares of Common Stock, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s 's most recent Form 10-K, QSB or Form 10-~~Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission~~KSB, as the case may be, (2y) a more recent public announcement by the Company or (3z) any other notice by the Company or the Company~~’s transfer agent~~ 's Transfer Agent setting forth the number of shares of Common Stock ~~outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~outstanding. ~~For any reason at any time, upon~~ Upon the written or oral request of the Holder, the Company shall within ~~one Trading Day~~ two trading days confirm orally and in writing ~~or by electronic mail~~ to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder ~~and the Attribution Parties~~ or its affiliates since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the such number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisabilitywas reported. The provisions of this paragraph shall be ~~construed and~~ implemented in a manner otherwise than in strict conformity with the terms of this ~~Section 11 to the extent necessary~~ SECTION 2.5 to correct this paragraph (or any portion ~~of this paragraph~~ hereof) which may be defective or inconsistent with the intended Applicable Percentage beneficial ownership limitation herein contained ~~in this Section 11~~ or to make changes or supplements necessary or desirable to properly give effect to such Applicable Percentage limitation. The ~~limitation~~ limitations contained in this paragraph ~~may not be waived and~~ shall apply to a successor holder of this Warrant. The holders of Common Stock of the Company shall be third party beneficiaries of this SECTION 2.5 and the Company may not waive this SECTION 2.5 without the consent of holders of a majority of its Common Stock.

Appears in 1 contract

Sources: Note and Warrant Purchase Agreement (National Coal Corp)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect ~~the~~ any exercise ~~of any portion~~ of this Warrant, and the Holder of shall not be entitled to exercise this Warrant ~~shall not have the right to exercise any portion~~ for a number of ~~the Warrant~~Warrant Shares in excess of that number of Warrant Shares which, ~~and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that~~ upon giving effect or immediately prior to ~~or following~~ such exercise, would cause (i) the aggregate number of shares of Common Stock beneficially owned by the Holder, ~~together~~ its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the ~~Attribution Parties, beneficially owns or would beneficially own as determined in accordance with~~ Holder’s for purposes of Section 13(d) of the Exchange Act ~~and the rules promulgated thereunder, in excess of a percentage set at the discretion of each Holder between 0% and 19.99~~to exceed 4.99% (the “Maximum Percentage”) of the ~~Common Stock that would be~~ total number of issued and outstanding following such exercise. The initial Maximum Percentage is [•]%. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock ~~held and/or~~ of the Company following such exercise, or (ii) the combined voting power of the securities of the Company beneficially owned by the Holder ~~together with the Attribution Parties, shall include the number of shares~~ and its Affiliates and any other Persons whose beneficial ownership of Common Stock ~~held and/or beneficially owned by the Holder together~~ would be aggregated with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For Holder’s for purposes of ~~this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with~~ Section 13(d) of the Exchange Act ~~and~~ to exceed 4.99% of the ~~rules promulgated thereunder~~combined voting power of all of the securities of the Company then 56 outstanding following such exercise. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Form 10-K, Q or Form 10-~~Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission~~K, as the case may be, filed with the Commission prior to the date hereof, (2y) a more recent public announcement by the Company or (3z) any other notice by the Company or ~~the Company’s~~ its transfer agent setting forth the number of shares of Common Stock ~~outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~outstanding. ~~For any reason at any time, upon~~ Upon the written ~~or oral~~ request of the Holder, the Company shall within ~~one~~ three (3) Trading ~~Day~~ Days confirm ~~orally and~~ in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder ~~and the Attribution Parties~~ since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the such number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shareswas reported. By written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage specified not in excess of 19.99% specified in such notice; provided that any such increase ~~in the Maximum Percentage~~ will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company. For purposes of this Section 11(a), the aggregate number of shares of Common Stock or voting securities beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act shall include the shares of Common Stock issuable upon the exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (x) exercise of the remaining unexercised and non-cancelled portion of this Warrant by the Holder and (y) exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including without limitation any securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including without limitation any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock), is subject to a limitation on conversion or exercise analogous to the limitation contained herein and ~~shall not negatively affect~~ is beneficially owned by the Holder or any ~~partial exercise effected prior to such change~~of its Affiliates and other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Underwriting Agreement (Terns Pharmaceuticals, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of ~~this~~ the Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~4.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of ~~this~~ the Warrant, in determining the number of outstanding shares of Common Stock, a Holder of ~~this~~ the Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one ~~Trading~~ (1) Business Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of ~~this~~ the Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 11(a) to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 11(a) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Securities Purchase Agreement (Baker Bros. Advisors Lp)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of ~~this~~ the Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~4.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of ~~this~~ the Warrant, in determining the number of outstanding shares of Common Stock, a Holder of ~~this~~ the Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one ~~Trading~~ (1) Business Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution ~~Parties~~ Parties, holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of ~~this~~ the Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this ~~paragraph~~ Section 11 shall have any effect on the applicability of the provisions of this ~~paragraph~~ Section 11 with respect to any subsequent determination of exercisability. The provisions of this ~~paragraph~~ Section 11 shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this ~~paragraph~~ Section 11 or any portion of this ~~paragraph~~ Section 11 which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this ~~paragraph~~ Section 11 may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Underwriting Agreement (Denali Therapeutics Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~[4.99][9.99] % (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this ~~Paragraph~~ Section 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares, if any. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this ~~paragraph~~ Section 11 shall have any effect on the applicability of the provisions of this ~~paragraph~~ Section 11 with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this ~~paragraph~~ Section 11 or any portion of this ~~paragraph~~ Section 11 which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this ~~paragraph~~ Section 11 may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (GRAIL, Inc.)

Limitations on Exercise. ~~(a)~~ Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of ~~this~~ a Warrant, and the Holder ~~of this Warrant~~ shall not have the right to exercise any portion of ~~the~~ a Warrant, pursuant to the terms and conditions of the Warrant and any such exercise shall be null and void ~~ab initio~~ and treated as if ~~the exercise had not been~~ never made, to the extent that ~~immediately prior~~ after giving effect to ~~or following~~ such exercise, the ~~Holder,~~ Holder together with the other Attribution ~~Parties, beneficially owns or~~ Parties collectively would beneficially own ~~as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder,~~ in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99%~~ [4.99][9.99%] (the “Maximum Percentage”) of the number of shares of Common Stock ~~that would be issued and~~ outstanding ~~following~~ immediately after giving effect to such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of ~~calculating beneficial ownership for determining whether~~ the ~~Maximum Percentage is or will be exceeded~~foregoing sentence, the aggregate number of shares of Common Stock ~~held and/or~~ beneficially owned by the Holder ~~together with~~ and the other Attribution ~~Parties,~~ Parties shall include the number of shares of Common Stock held ~~and/or beneficially owned~~ by the Holder ~~together with the~~ and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the ~~relevant Warrant~~ Warrants with respect to which the determination of such sentence is being ~~made~~ made, but shall exclude the number of shares of Common Stock ~~which~~ that would be issuable upon (iA) exercise of the remaining, unexercised ~~Warrant held and/or~~ portion of the Warrants beneficially owned by the Holder or any of the other Attribution Parties and (iiB) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company ~~held and/or beneficially owned by such Holder or any Attribution Party~~ (including, without limitation, any convertible ~~notes,~~ notes or convertible preferred stock or warrants, including the other Warrants) ~~that are~~ beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained ~~herein~~in this Section 3.3.10. For purposes of this ~~Paragraph 11(a)~~Section 3.3.10, beneficial ownership ~~of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence,~~ shall be calculated ~~and determined~~ in accordance with Section 13(d) of the ~~Exchange Act and the rules promulgated thereunder~~1934 Act. For purposes of ~~this Warrant~~the Warrants, in determining the number of outstanding shares of Common ~~Stock~~Stock the Holder may acquire upon the exercise of the Warrants without exceeding the Maximum Percentage, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s 's most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Q and Current ~~Report~~ Reports on Form 8-K or other public filing with the Securities and Exchange ~~Commission~~Commission (the “SEC”), as the case may be, (2y) a more recent public announcement by the Company or (3z) any other written notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent setting forth the number of shares of Common Stock outstanding (~~such issued and outstanding shares,~~ the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder~~’s, together with the Attribution Parties’,~~ 's beneficial ownership, as determined pursuant to this Section ~~11(a)~~3.3.10, to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. For any reason at any time, upon the written or oral request of the Holder, the Company shall within one (1) Business Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including ~~this Warrant~~the Warrants, by the Holder and ~~the~~ any other Attribution ~~Parties~~ Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of ~~this Warrant~~ the Warrants results in the ~~Holder, together with~~ Holder and the other Attribution ~~Parties,~~ Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the ~~Exchange~~ 1934 Act), the number of shares so issued by which the Holder~~’s, together with~~ 's and the other Attribution Parties’, ' aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder ~~and/or the Attribution Parties~~ shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By Upon delivery of a written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of ~~19.99~~9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company and ~~shall not negatively affect~~ (ii) any ~~partial exercise effected prior~~ such increase or decrease will apply only to ~~such change. (b) This Section 11 shall not restrict~~ the ~~number of shares of Common Stock which a~~ Holder or and the other Attribution Parties ~~may receive or beneficially own in order~~ and not to ~~determine~~ any other holder of Warrants that is not an Attribution Party of the ~~amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant~~Holder. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of ~~this Warrant~~ the Warrants in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder ~~or the Attribution Parties~~ for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the ~~Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1)~~1934 Act. No prior inability to exercise ~~this Warrant~~ the Warrants pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 3.3.10 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 3.3.10 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of ~~this Warrant~~the Warrants.

Appears in 1 contract

Sources: Warrant Agreement (Outlook Therapeutics, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect ~~the~~ any exercise ~~of any portion~~ of this Warrant, and the Holder of shall not be entitled to exercise this Warrant ~~shall not have the right to exercise any portion~~ for a number of ~~the Warrant~~Warrant Shares in excess of that number of Warrant Shares which, ~~and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that~~ upon giving effect or immediately prior to ~~or following~~ such exercise, would cause (i) the aggregate number of shares of Common Stock beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder~~, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with~~ ’s for purposes of Section 13(d) of the Exchange ~~Act and the rules promulgated thereunder~~Act, ~~in excess of a percentage set at the discretion of each Holder between 0% and 19.99~~to exceed 4.99% (the “Maximum Percentage”) of the ~~Common Stock that would be~~ total number of issued and outstanding following such exercise. The initial Maximum Percentage is [•]%. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock ~~held and/or~~ of the Company following such exercise, or (ii) the combined voting power of the securities of the Company beneficially owned by the Holder ~~together with the Attribution Parties, shall include the number of shares~~ and its Affiliates and any other Persons whose beneficial ownership of Common Stock ~~held and/or beneficially owned by the Holder together~~ would be aggregated with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For Holder’s for purposes of ~~this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with~~ Section 13(d) of the Exchange Act ~~and~~ to exceed 4.99% of the ~~rules promulgated thereunder~~combined voting power of all of the securities of the Company then outstanding following such exercise. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Form 10-K, Q or Form 10-~~Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission~~K, as the case may be, filed with the Commission prior to the date hereof, (2y) a more recent public announcement by the Company or (3z) any other notice by the Company or ~~the Company’s~~ its transfer agent setting forth the number of shares of Common Stock ~~outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~outstanding. ~~For any reason at any time, upon~~ Upon the written ~~or oral~~ request of the Holder, the Company shall within ~~one~~ three (3) Trading ~~Day~~ Days confirm ~~orally and~~ in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder ~~and the Attribution Parties~~ since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the such number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shareswas reported. By written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage ~~not in excess of 19.99%~~ specified in such notice; provided that any such increase ~~in the Maximum Percentage~~ will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company. For purposes of this Section 11(a), the aggregate number of shares of Common Stock or voting securities beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act shall include the shares of Common Stock issuable upon the exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (x) exercise of the remaining unexercised and non-cancelled portion of this Warrant by the Holder and (y) exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including without limitation any securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including without limitation any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock), is subject to a limitation on conversion or exercise analogous to the limitation contained herein and ~~shall not negatively affect~~ is beneficially owned by the Holder or any ~~partial exercise effected prior to such change~~of its Affiliates and other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (Evofem Biosciences, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not ~~have the right to~~ exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~9.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall ~~not~~ be deemed not to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (Vor Biopharma Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99%~~ [4.99][9.99]% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one ~~Trading Day~~ business day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (Jade Biosciences, Inc.)

Limitations on Exercise. ~~(a)~~ Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~9.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being US-DOCS\165267476.1 11 made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.specified

Appears in 1 contract

Sources: Warrant Agreement (AEON Biopharma, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not ~~have the right to~~ exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99%~~ [4.99][9.99]% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock, non-voting common stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this ~~Paragraph~~ Section 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the ~~Securities and Exchange~~ Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days confirm ~~orally and~~ in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares, if any. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; ~~provided~~ provided, that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this ~~paragraph~~ Section 11 shall have any effect on the applicability of the provisions of this ~~paragraph~~ Section 11 with respect to any subsequent determination of exercisability. The provisions of this ~~paragraph~~ Section 11 shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this ~~paragraph~~ Section 11 or any portion of this ~~paragraph~~ Section 11 which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this ~~paragraph~~ Section 11 may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (Aligos Therapeutics, Inc.)

Limitations on Exercise. ~~(a)~~ Notwithstanding anything to the contrary ~~contained~~ herein, except as specifically contemplated by this Section 1.7, the Company shall not effect ~~the~~ any exercise ~~of any portion~~ of this Warrant, and the Holder ~~of this Warrant~~ shall not ~~have the right~~ be entitled to exercise ~~any portion of the~~ this Warrant, ~~and any such exercise shall be null and void ab initio and treated as if the exercise had not been made~~for a number of Warrant Shares in excess of that number of Warrant Shares which, ~~to the extent that~~ upon giving effect or immediately prior to ~~or following~~ such exercise, would cause (i) the aggregate number of shares of Common Stock beneficially owned by the Holder, ~~together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with~~ its Affiliates and any Persons who are members of a Section 13(d) ~~of the Exchange Act and the rules promulgated thereunder, in excess of a percentage set at the discretion of each~~ group with such Holder ~~between 0% and 19.99%~~ or its Affiliates to exceed [[9.99%]//[4.99%]]1 (the “Maximum Percentage”) of the total number of issued and outstanding shares of Common Stock ~~that would be issued~~ of the Company following such exercise, or (ii) the combined voting power of the securities of the Company beneficially owned by the Holder and its Affiliates and any other Persons who are members of a Section 13(d) group with such Holder or its Affiliates to exceed the Maximum Percentage of the combined voting power of all of the securities of the Company then outstanding following such exercise. The initial Maximum Percentage is [•]%. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this ~~Paragraph 11(a)~~paragraph, beneficial ownership and whether a Holder is a member of ~~the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence,~~ a Section 13(d) group shall be calculated and determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Quarterly Report on Form 10-Q or Annual Report on Form 10-K~~, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission~~, as the case may be, filed with the Commission prior to the date hereof, (2y) a more recent public announcement by the Company or (3z) any other notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent setting forth the number of shares of Common Stock ~~outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~outstanding. ~~For any reason at any time, upon~~ Upon the written ~~or oral~~ request of the Holder, the Company shall within one (1) Trading Day confirm ~~orally and~~ in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder ~~and the Attribution Parties~~ since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the such number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shareswas reported. By written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any such increase ~~in the Maximum Percentage~~ will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the ~~Company~~ Company. For purposes of this Section 1.7, the aggregate number of shares of Common Stock or voting securities beneficially owned by the Holder and its Affiliates and any other Persons who are members of a Section 13(d) group with such Holder or its Affiliates shall ~~not negatively affect any partial~~ include the shares of Common Stock issuable upon: (x) the exercise ~~effected prior~~ of this Warrant with respect to which such ~~change. (b) This Section 11~~ determination is being made plus the remaining unexercised and non-cancelled portion of this Warrant but taking into account the limitations on exercise contained herein, but shall ~~not restrict~~ exclude the number of shares of Common Stock which a would otherwise be issuable upon exercise of the remaining unexercised and non-cancelled portion of this Warrant but for the limitations on exercise contained herein; and (y) the exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company beneficially owned by the Holder or ~~the Attribution Parties may receive or beneficially own in order to determine the amount~~ any of ~~securities or~~ its Affiliates and other ~~consideration that~~ Persons who are members of a Section 13(d) group with such Holder or its Affiliates that do not have voting power (including without limitation any securities of the ~~Attribution Parties may receive~~ Company which would entitle the holder thereof to acquire at any time Common Stock, including without limitation any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock), but shall exclude any such securities subject to any further limitation on conversion or exercise analogous to the limitation contained herein. Notwithstanding the foregoing, in the event ~~of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity,~~ that the ~~shares of Common Stock issuable pursuant to the terms~~ exercise of this Warrant would cause the Holder to beneficially own in excess of the Maximum Percentage ~~shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d)~~ of the ~~Exchange Act~~ shares of Common Stock outstanding immediately after giving effect to such exercise, then, in lieu of receiving Shares upon such exercise, such Holder may elect to receive a pre-funded warrant for one share of Common Stock in the form of Annex A hereto (the “Pre-Funded Warrant”). In such event, the Exercise Price shall be reduced by $0.001 per share of Common Stock, and the ~~rules promulgated thereunder or Section 16~~ exercise price of the ~~Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this~~ Pre-Funded Warrant ~~pursuant to this paragraph~~ shall ~~have any effect on the applicability~~ be $0.001 per underlying share of ~~the provisions of this paragraph with respect to any subsequent determination of exercisability~~Common Stock. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section ~~11 to the extent necessary~~ 1.7 to correct this paragraph (or any portion ~~of this paragraph~~ hereof) which may be defective or inconsistent with the intended ~~beneficial ownership limitation~~ Maximum Percentage herein contained ~~in this Section 11~~ or to make changes or supplements necessary or desirable to properly give effect to such limitation. ~~The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.~~This

Appears in 1 contract

Sources: Warrant to Purchase Stock (Verastem, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect ~~the~~ any exercise ~~of any portion~~ of this Warrant, and the Holder of shall not be entitled to exercise this Warrant ~~shall not have the right to exercise any portion~~ for a number of ~~the Warrant~~Warrant Shares in excess of that number of Warrant Shares which, ~~and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that~~ upon giving effect or immediately prior to ~~or following~~ such exercise, would cause (i) the aggregate number of shares of Common Stock beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder~~, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with~~ ’s for purposes of Section 13(d) of the Exchange Act ~~and the rules promulgated thereunder, in excess~~ (such as any other members of a ~~percentage set at the discretion of each Holder between 0% and 19.99~~Section 13(d) “group”), to exceed 9.99% (the “Maximum Percentage”) of the ~~Common Stock that would be~~ total number of issued and outstanding following such exercise. The initial Maximum Percentage is [•]%. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock ~~held and/or~~ of the Company following such exercise, or (ii) the combined voting power of the securities of the Company beneficially owned by the Holder ~~together with the Attribution Parties, shall include the number of shares~~ and its Affiliates and any other Persons whose beneficial ownership of Common Stock ~~held and/or beneficially owned by the Holder together~~ would be aggregated with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For Holder’s for purposes of ~~this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with~~ Section 13(d) of the Exchange Act ~~and~~ (such as any other members of a Section 13(d) “group”) to exceed 9.99% of the ~~rules promulgated thereunder~~combined voting power of all of the securities of the Company then outstanding following such exercise. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Form 10-K, Q or Form 10-~~Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission~~K, as the case may be, filed with the Commission prior to the date hereof, (2y) a more recent public announcement by the Company or (3z) any other notice by the Company or ~~the Company’s~~ its transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.Stock

Appears in 1 contract

Sources: Merger Agreement (Neoleukin Therapeutics, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, at any time that any of the ~~Company shall not effect~~ Company’s equity securities are registered under Section 12 of the ~~exercise~~ Securities Exchange Act of ~~any portion~~ 1934, as amended (the “Exchange Act”), the number of ~~this Warrant, and~~ shares of Common Stock that may be acquired by the Holder upon any exercise of this Warrant ~~shall not have the right to exercise any portion of the Warrant, and any such exercise~~ (or otherwise in respect hereof) shall be ~~null and void ab initio and treated as if the exercise had not been made,~~ limited to the extent ~~that immediately prior~~ necessary to or insure that, following such ~~exercise~~exercise (or other issuance), the ~~Holder, together~~ total number of shares of Common Stock then beneficially owned by such Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the ~~Attribution Parties~~Holder's for purposes of Section 13(d) of the Exchange Act, ~~beneficially owns or would beneficially own as~~ does not exceed 4.999% (the “5% Maximum Percentage”) of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock issuable upon such exercise). For such purposes, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder~~, in excess of a percentage set at the discretion of each Holder between 0% and 19.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The ~~initial Maximum Percentage is [•]%. For purposes~~ Company shall, instead of ~~calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of~~ issuing shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise in excess of the ~~relevant Warrant with respect~~ limitation referred to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), suspend its obligation to ~~exceed~~ issue shares in excess of the ~~Maximum Percentage~~foregoing limitation until such time, ~~the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to~~ if any, as such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock ~~shall~~ may be ~~determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant~~issued in compliance with such limitation. Additionally, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a the Holder may waive the provisions of this ~~Warrant may from time to time~~ Section 11(a) or increase or decrease the 5% Maximum Percentage to any other percentage ~~not in excess of 19.99%~~ specified in such notice; ~~provided~~ provided, that (i) any such waiver or increase ~~in the Maximum Percentage~~ or decrease will not be effective until the 61st day after such notice is delivered to the ~~Company~~ Company, and ~~shall~~ (ii) any such waiver or increase or decrease will apply only to the Holder and not ~~negatively affect~~ to any ~~partial exercise effected prior to such change~~other holder of Warrants. (b) Notwithstanding anything to the contrary contained herein and regardless of whether the restrictions contained in Section 11(a) are waived as provided therein, the number of shares of Common Stock that may be acquired by the Holder upon any exercise of this Warrant (or otherwise in respect hereof) shall be limited to the extent necessary to insure that, following such exercise (or other issuance), the total number of shares of Common Stock then beneficially owned by such Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder's for purposes of Section 13(d) of the Exchange Act, does not exceed 9.999% (the “10% Maximum Percentage”) of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock issuable upon such exercise). For such purposes, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. The Company shall, instead of issuing shares of Common Stock in excess of the limitation referred to in this Section 11(b), suspend its obligation to issue shares in excess of the foregoing limitation until such time, if any, as such shares of Common Stock may be issued in compliance with such limitation. The provisions of this Section 11(b) may not be waived. (c) This Section 11 shall not restrict the number of shares of Common Stock which a Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section ~~9(c~~9(b) this Warrant or the amount of Distributed Property to which the Holder may become entitled pursuant to Section 9(d) of this Warrant. ~~For purposes of clarity~~In addition, ~~the shares of Common Stock issuable~~ this provision shall not in any way limit any other adjustment to be made pursuant to ~~the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of~~ Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant9 hereof.

Appears in 1 contract

Sources: Securities Agreement (Powder River Basin Gas Corp)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not ~~have the right to~~ exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~9.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage ~~not in excess of 19.99~~no greater than either (1) 49.99% or (2) as specified in such notice so long as, if, immediately after delivery of such notice, this Warrant was exercised to the fullest extent permitted under such proposed Maximum Percentage, such exercise would not result in a change of control under Nasdaq Listing Rule 5635(b) or any successor rule; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall ~~not~~ be deemed to not be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (Vor Biopharma Inc.)

Limitations on Exercise. ~~(a) Notwithstanding anything to the contrary contained herein, the~~ The Company shall not effect the exercise of any ~~portion of this Warrant~~Rights, and the Holder ~~of this Warrant~~ shall not have the right to exercise any portion of any Rights pursuant to the ~~Warrant,~~ terms and conditions of this Agreement and any such exercise shall be null and void ~~ab initio~~ and treated as if ~~the exercise had not been~~ never made, to the extent that ~~immediately prior~~ after giving effect to ~~or following~~ such exercise, the ~~Holder,~~ Holder together with the other Attribution ~~Parties, beneficially owns or~~ Parties collectively would beneficially own ~~as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder,~~ in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~9.99% (the “~~Maximum Percentage~~Beneficial Ownership Limitation”) of the shares of Common Stock ~~that would be issued and~~ outstanding ~~following~~ immediately after giving effect to such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of ~~calculating beneficial ownership for determining whether~~ the ~~Maximum Percentage is or will be exceeded~~foregoing sentence, the aggregate number of shares of Common Stock ~~held and/or~~ beneficially owned by the Holder ~~together with~~ and the other Attribution ~~Parties,~~ Parties (as defined in the Existing Note) shall include the number of shares of Common Stock held ~~and/or beneficially owned~~ by the Holder ~~together with the~~ and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the ~~relevant Warrant~~ Rights issued hereunder with respect to which the determination of such sentence is being ~~made~~ made, but shall exclude ~~the number of~~ shares of Common Stock which would be issuable upon (iA) exercise of the remaining, ~~unexercised Warrant held and/or~~ nonexercised portion of the Rights beneficially owned by the Holder or any of the other Attribution Parties and (iiB) exercise or conversion of the unexercised or ~~unconverted~~ nonconverted portion of any other securities of the Company ~~held and/or beneficially owned by such Holder or any Attribution Party~~ (including, without limitation, any convertible ~~notes,~~ notes or convertible preferred stock or warrants) ~~that are~~ beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained ~~herein~~in this Section 11.8(a). For purposes of this ~~Paragraph 11(a~~Section 11.8(a), beneficial ownership ~~of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence,~~ shall be calculated ~~and determined~~ in accordance with Section 13(d) of the ~~Exchange~~ 1934 Act ~~and~~ (as defined in the ~~rules promulgated thereunder~~Existing Note). For purposes of ~~this Warrant, in~~ determining the number of outstanding shares of Common ~~Stock~~Stock the Holder may acquire upon the exercise of the Rights without exceeding the Beneficial Ownership Limitation, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the ~~Securities and Exchange Commission~~SEC, as the case may be, (2y) a more recent public announcement by the Company or (3z) any other written notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent, if any, setting forth the number of shares of Common Stock outstanding (~~such issued and outstanding shares,~~ the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives ~~an Exercise~~ a Notice of Issuance from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall ~~(i)~~ notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such ~~Exercise~~ Notice of Issuance would otherwise cause the Holder~~’s, together with the Attribution Parties’,~~ ’s beneficial ownership, as determined pursuant to this Section ~~11(a~~11.8(a), to exceed the ~~Maximum Percentage~~Beneficial Ownership Limitation, the Holder must notify the Company of a reduced number of ~~Warrant Shares~~ shares of Common Stock to be purchased pursuant to such ~~Exercise~~ Notice of Issuance. For any reason at any time, upon the written or oral request of the Holder, the Company shall within one (1) Business Day confirm orally and in writing or by electronic mail to the Holder the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Sharesof Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including ~~this Warrant~~the Rights, by the Holder and ~~the~~ any other Attribution ~~Parties~~ Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of shares of Common Stock to the Holder upon exercise of ~~this Warrant~~ the Rights results in the ~~Holder, together with~~ Holder and the other Attribution ~~Parties,~~ Parties being deemed to beneficially own, in the aggregate, more than the ~~Maximum Percentage~~ Beneficial Ownership Limitation of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the ~~Exchange~~ 1934 Act), the number of shares so issued by which the Holder~~’s, together with~~ ’s and the other Attribution Parties’, ’ aggregate beneficial ownership exceeds the ~~Maximum Percentage~~ Beneficial Ownership Limitation (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder ~~and/or the Attribution Parties~~ shall not have the power to vote or to transfer the Excess Shares. ~~As soon as reasonably practicable after the issuance~~ Upon delivery of ~~the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By~~ a written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase (with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease the ~~Maximum Percentage~~ Beneficial Ownership Limitation to any other percentage not in excess of ~~19.99~~9.99% as specified in such notice; provided that (i) any such increase in the ~~Maximum Percentage~~ Beneficial Ownership Limitation will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company and ~~shall not negatively affect~~ (ii) any ~~partial exercise effected prior~~ such increase or decrease will apply only to ~~such change. (b) This Section 11 shall not restrict~~ the ~~number of shares of Common Stock which a~~ Holder or and the other Attribution Parties ~~may receive or beneficially own in order~~ and not to ~~determine~~ any other holder of Rights that is not an Attribution Party of the ~~amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant~~Holder. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of ~~this Warrant~~ the Rights hereunder in excess of the ~~Maximum Percentage~~ Beneficial Ownership Limitation shall not be deemed to be beneficially owned by the Holder ~~or the Attribution Parties~~ for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the ~~Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1)~~1934 Act. No prior inability to exercise ~~this Warrant~~ any Rights pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 11.8(a) to the extent necessary to correct this paragraph (or any portion of this ~~paragraph~~ paragraph) which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 11.8(a) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of ~~this Warrant~~Rights.

Appears in 1 contract

Sources: Exchange Agreement (Delcath Systems, Inc.)

Limitations on Exercise. (ai) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder ~~of this Warrant~~ shall not have the right to exercise any portion of ~~the~~ this Warrant, and any such exercise shall be null and void ~~ab initio~~ and treated as if ~~the exercise had not been~~ never made, to the extent that ~~immediately prior~~ after giving effect to ~~or following~~ such exercise, the ~~Holder,~~ Holder together with the other Attribution ~~Parties, beneficially owns or~~ Parties collectively would beneficially own ~~as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder,~~ in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~9.99% (the “Maximum Percentage”) of the shares of Common Stock ~~that would be~~ outstanding immediately after giving effect to such exercise. Notwithstanding anything to the contrary set forth herein, by written notice to the Company, the Holder may, in its sole discretion, increase or decrease the Maximum Percentage to any other percentage not in excess of 19.999% of the Common Stock of the Company issued and outstanding ~~following~~ on November 15, 2021 (when taken together with any shares issued pursuant to the Second Lien Agreement (as defined in the Credit Agreement), unless the Company’s shareholders shall have approved the issuance of the Monroe Supporting Shares (as defined in the Credit Agreement) and the transactions contemplated by this Warrant) specified in such ~~exercise. The initial~~ notice and such percentage will be deemed the new Maximum Percentage for all purposes under this Warrant; provided, that any such increase will not be effective until the 61st day after such notice is ~~[•]%~~delivered to the Company. For purposes of ~~calculating beneficial ownership for determining whether~~ the ~~Maximum Percentage is or will be exceeded~~preceding sentences, the aggregate number of shares of Common Stock ~~held and/or~~ beneficially owned by the Holder ~~together with~~ and the other Attribution ~~Parties,~~ Parties shall include the number of shares of Common Stock held ~~and/or beneficially owned~~ by the Holder ~~together with the~~ and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of ~~the relevant~~ this Warrant with respect to which the determination of such sentence is being ~~made~~ made, but shall exclude ~~the number of~~ shares of Common Stock which would be issuable upon (iA) exercise of the remaining, unexercised portion of this Warrant ~~held and/or~~ beneficially owned by the Holder or any of the other Attribution Parties and (iiB) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company ~~held and/or beneficially owned by such Holder or any Attribution Party~~ (including, without limitation, any convertible ~~notes,~~ notes or convertible preferred stock or warrants, including other warrants issued concurrently herewith) ~~that are~~ beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained ~~herein~~in this Section 1(d). For purposes of this ~~Paragraph 11(a~~Section 1(d), beneficial ownership ~~of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence,~~ shall be calculated ~~and determined~~ in accordance with Section 13(d) of the ~~Exchange Act and the rules promulgated thereunder~~1934 Act. For purposes of ~~this Warrant, in~~ determining the number of outstanding shares of Common ~~Stock, a~~ Stock the Holder may acquire upon the exercise of this Warrant ~~may rely on~~ without exceeding the ~~number of outstanding~~ Maximum Percentage, there were 41,970,915 shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding ~~shares~~on November 15, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. 2021. (ii) If the Company receives an Exercise Notice from the Holder at a time when the ~~actual number~~ when the issuance of ~~outstanding shares~~ the Warrant Shares would not comply with applicable law, including the rules and regulations of the Nasdaq Stock Market (or any securities exchange on which the Common Stock is ~~less than the Reported Outstanding Share Number~~listed) (“Applicable Law”), the Company shall (iA) notify the Holder in writing of the number of shares of Common Stock issued or issuable in connection with any other transaction by the Company that may be aggregated with the issuance of the Warrant Shares under the rules and regulations of the Nasdaq Stock Market (or any other securities exchange on which the Common Stock is then ~~outstanding and~~listed), and to the extent that such Exercise Notice would otherwise cause the Holder~~’s, together with the Attribution Parties’,~~ ’s beneficial ownership, as determined pursuant to this Section ~~11(a~~1(d), to exceed the Maximum ~~Percentage~~Percentage or would not comply with Applicable Law, the Holder must notify the Company of a reduced number of Warrant Shares to be ~~purchased~~ acquired pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (iiB) as soon as reasonably practicable, the Company shall return to the Holder any ~~exercise price~~ Exercise Price paid by the Holder for the Reduction Shares~~. In any case,~~ . (iii) Upon the ~~number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities~~ written request of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall ~~return~~ promptly confirm in writing or by electronic mail to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock issued or issuable in connection with any other transaction by the Company that may be aggregated with the issuance of the Warrant Shares under the rules and regulations of the Nasdaq Stock Market (or any other securities exchange on which ~~a Holder or~~ the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(cCommon Stock is then listed). (iv) ~~of this Warrant.~~ For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage or the issuance of which would not comply with Applicable Law shall not be deemed to be beneficially owned by the Holder ~~or the Attribution Parties~~ for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the ~~Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1).~~ 1934 Act. (v) No prior inability to exercise this Warrant pursuant to this ~~paragraph~~ Section 1(d) shall have any effect on the applicability of the provisions of this ~~paragraph~~ Section 1(d) with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 1(d) to the extent necessary to correct this paragraph or any portion of this ~~paragraph~~ Section 1(d) which may be defective or inconsistent with the intended beneficial ownership or Applicable Law limitation contained in this Section 11 1(d) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this ~~paragraph~~ Section 1(d) may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (AgileThought, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect ~~the~~ any exercise ~~of any portion~~ of this Warrant, and the Holder of shall not be entitled to exercise this Warrant ~~shall not have the right to exercise any portion~~ for a number of ~~the Warrant~~Warrant Shares in excess of that number of Warrant Shares which, ~~and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that~~ upon giving effect or immediately prior to ~~or following~~ such exercise, would cause [(i)] (A) the outstanding Class A Common Stock beneficially owned by the Holder and any other Persons whose beneficial ownership of shares of Class A Common Stock would be aggregated with the Holder~~, together with~~ ’s for purposes of Section 13(d) of the ~~Attribution Parties, beneficially owns or would beneficially own~~ Exchange Act (such as ~~determined~~ any other members of a Section 13(d) “group”) to exceed [19.99]% of the outstanding Class A Common Stock (as computed in accordance with Section 13(d) of the Exchange ~~Act~~ Act); or (B) the combined voting power of the securities of the Company beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of shares of Class A Common Stock and the ~~rules promulgated thereunder~~Company’s Class B common stock, ~~in excess~~ par value $0.0001 per share (“Class B Common Stock”), would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act (such as any other members of a ~~percentage set at~~ Section 13(d) “group”) to exceed [19.99]% of the ~~discretion~~ combined voting power of ~~each Holder between 0%~~ all of the securities of the Company then outstanding following such exercise[, or (ii) the aggregate number of shares of Class A Common Stock beneficially owned by the Holder, its Affiliates and ~~19.99%~~ any other Persons whose beneficial ownership of shares of Class A Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act (such as any other members of a Section 13(d) “group”) to exceed [4.99][9.99]% (the “Maximum Percentage”) of the ~~Common Stock that would be~~ total number of issued and outstanding following such exercise. The initial Maximum Percentage is [•]%. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company ~~held and/or beneficially owned by~~ following such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunderexercise]. For purposes of this Warrant, in determining the number of outstanding shares of Class A Common Stock and Class B Common Stock, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Class A Common Stock and Class B Common Stock as reflected in (1x) the Company’s most recent Form 10-K, Q or Form 10-~~Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission~~K, as the case may be, filed with the Commission prior to the date hereof, (2y) a more recent public announcement by the Company or (3z) any other notice by the Company or ~~the Company’s~~ its transfer agent setting forth the number of shares of Class A Common Stock ~~outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~or Class B Common Stock outstanding. ~~For any reason at any time, upon~~ Upon the written ~~or oral~~ request of the Holder, the Company shall within ~~one~~ three (3) Trading ~~Day~~ Days confirm ~~orally and~~ in writing or by electronic mail to the Holder the number of shares of Class A Common Stock and Class B Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Class A Common Stock and Class B Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder ~~and the Attribution Parties~~ since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the such number of outstanding shares of Class A Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and ~~void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares~~Class B Common Stock was reported. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. [By written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage specified not in excess of 19.99% specified in such notice; provided that any such increase ~~in the Maximum Percentage~~ will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company.] For purposes of this Section 11(a), the aggregate number of shares of Class A Common Stock or voting securities beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of shares of Class A Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act (such as any other members of a Section 13(d) “group”) shall include the shares of Class A Common Stock issuable upon the exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Class A Common Stock which would be issuable upon (x) exercise of the remaining unexercised and non-cancelled portion of this Warrant by the Holder and (y) exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including without limitation any securities of the Company which would entitle the holder thereof to acquire at any time shares of Class A Common Stock, including without limitation any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares of Class A Common Stock), is subject to a limitation on conversion or exercise analogous to the limitation contained herein and ~~shall not negatively affect~~ is beneficially owned by the Holder or any ~~partial exercise effected prior to~~ of its Affiliates and other Persons whose beneficial ownership of shares of Class A Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act (such ~~change~~as any other members of a Section 13(d) “group”). (b) This Section 11 shall not restrict the number of shares of Class A Common Stock which a Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Underwriting Agreement (Cibus, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not ~~have the right to~~ exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~9.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (European Wax Center, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect ~~the~~ any exercise ~~of any portion~~ of this Warrant, and the Holder of shall not be entitled to exercise this Warrant ~~shall not have the right to exercise any portion~~ for a number of ~~the Warrant~~Warrant Shares in excess of that number of Warrant Shares which, ~~and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that~~ upon giving effect or immediately prior to ~~or following~~ such exercise, would cause (i) the ~~Holder, together with the Attribution Parties,~~ aggregate number of shares of Common Stock beneficially ~~owns or would beneficially own~~ owned as ~~determined~~ calculated in accordance with Section 13(d) of the United States Securities Exchange Act of 1934, as amended, by the Holder, its Affiliates and ~~the rules promulgated thereunder, in excess~~ any Persons who are members of a ~~percentage set at the discretion of each~~ Section 13(d) group with such Holder ~~between 0% and 19.99~~or its Affiliates to exceed 4.99% (the “Maximum Percentage”) of the ~~Common Stock that would be~~ total number of issued and outstanding following such exercise. The initial Maximum Percentage is [•]%. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock ~~held and/or~~ of the Company following such exercise, or (ii) the combined voting power of the securities of the Company beneficially owned by the Holder ~~together~~ and its Affiliates and any other Persons who are members of a Section 13(d) group with such Holder or its Affiliates to exceed the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise Maximum Percentage of the ~~relevant Warrant with respect to which the determination is being made but shall exclude the number~~ combined voting power of ~~shares of Common Stock which would be issuable upon (i) exercise~~ all of the ~~remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other~~ securities of the Company ~~held and/or beneficially owned by~~ then outstanding following such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunderexercise. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Quarterly Report on Form 10-Q or Annual Report on Form 10-K~~, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission~~, as the case may be, filed with the Commission prior to the date hereof, (2y) a more recent public announcement by the Company or (3z) any other notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent setting forth the number of shares of Common Stock ~~outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~outstanding. ~~For any reason at any time, upon~~ Upon the written ~~or oral~~ request of the Holder, the Company shall within ~~one~~ three (3) Trading ~~Day~~ Days confirm ~~orally and~~ in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder ~~and the Attribution Parties~~ since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the such number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shareswas reported. By written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage specified not in excess of 19.99% specified in such notice~~; provided~~ . For purposes of this Section 11(a), the aggregate number of shares of Common Stock or voting securities beneficially owned by the Holder and its Affiliates and any other Persons who are members of a Section 13(d) group with such Holder or its Affiliates shall include the shares of Common Stock issuable upon (x) the exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon exercise of the remaining unexercised and non-cancelled portion of this Warrant by the Holder and (y) the exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including without limitation any ~~increase in~~ securities of the ~~Maximum Percentage will not be effective until~~ Company which would entitle the ~~61st day after such notice~~ holder thereof to acquire at any time Common Stock, including without limitation any debt, preferred stock, right, option, warrant or other instrument that is ~~delivered~~ at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock), is subject to a limitation on conversion or exercise analogous to the ~~Company~~ limitation contained herein and ~~shall not negatively affect~~ is beneficially owned by the Holder or any ~~partial exercise effected prior to~~ of its Affiliates and other Persons who are members of a Section 13(d) group with such ~~change~~Holder or its Affiliates. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder 9 of this Warrant.

Appears in 1 contract

Sources: Security Agreement (Esports Technologies, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this ~~Warrant~~Warrant (other than for Pre-Funded Warrants), and the Holder of this Warrant shall not ~~have the right to~~ exercise any portion of the ~~Warrant~~Warrant (other than for Pre-Funded Warrants), and any such exercise (other than for Pre-Funded Warrants) shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99%~~ [4.99][9.99]% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (Shattuck Labs, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not have the right to exercise any portion of ~~the~~ this Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~9.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s ~~transfer agent~~ Transfer Agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other ~~percentage~~ percentage, not in excess of 19.99% %, specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1), until such Warrant Shares are exercised. No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (Acuren Corp)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of ~~this~~ the Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~4.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of ~~this~~ the Warrant, in determining the number of outstanding shares of Common Stock, a Holder of ~~this~~ the Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one ~~Trading~~ (1) Business Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of ~~this~~ the Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this ~~paragraph~~ Section 11 shall have any effect on the applicability of the provisions of this ~~paragraph~~ Section 11 with respect to any subsequent determination of exercisability. The provisions of this ~~paragraph~~ Section 11 shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this ~~paragraph~~ Section 11 or any portion of this ~~paragraph~~ Section 11 which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this ~~paragraph~~ Section 11 may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Securities Purchase Agreement (Enliven Therapeutics, Inc.)

Limitations on Exercise. ~~(a) Notwithstanding anything to the contrary contained herein~~No Holder, ~~the Company shall not effect the exercise of any portion~~ including for purposes of this ~~Warrant~~section, ~~and the Holder~~ owners of ~~this Warrant~~ beneficial interests in Global Warrants, shall ~~not~~ have the right to exercise any ~~portion of the~~ Warrant, pursuant to Section 6 or otherwise, and ~~any~~ no such exercise shall be ~~null and void ab initio and treated as if the exercise had not been made~~effective, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of a percentage set at the discretion of each Holder between 0% and 19.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise. The initial Maximum Percentage is [•]%. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to such issuance after exercise as set forth on the ~~conversion or exercise of securities of the Company~~applicable Warrant Exercise Notice, ~~including this Warrant, by~~ the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, (together with the ~~Attribution Parties~~Holder’s Affiliates, ~~being deemed to beneficially own, in the aggregate, more than the Maximum Percentage~~ and any other Person whose beneficial ownership of ~~the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which~~ Ordinary Shares would be aggregated with the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including ’s for purposes of Section 13(d) of the Exchange Act and the applicable rules ~~promulgated thereunder or Section 16~~ and regulations of the SEC, including any “group” (within the meaning of the Exchange ~~Act~~ Act) of which the Holder or any such other Person is a member (such Persons, “Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation, provided that (i) a Holder may waive the application of the limitations in this Section 20(a) to such Holder upon sixty-five (65) calendar days’ prior written notice to the Company by such Holder and (ii) the ~~rules promulgated thereunder~~limitations in this Section 20(a) shall not apply in the event of a Fundamental Transaction. For the avoidance of doubt, a Holder shall be permitted to exercise a number of Warrants, at any time, sufficient for the Holder and Attribution Parties to maintain in the aggregate beneficial ownership of Ordinary Shares in an amount equal to or less than the then-applicable Beneficial Ownership Limitation, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed if and ~~implemented in a manner otherwise than in strict conformity with the terms of this Section 11~~ to the extent ~~necessary~~ that the Company issues additional Ordinary Shares for any reason (including, for the avoidance of doubt, any exercise, exchange or conversion of warrants, options or convertible securities or other securities into Ordinary Shares). Notwithstanding any other provision of this Agreement, by accepting a Warrant, each Holder shall be deemed to ~~correct this paragraph~~ have agreed not to exercise any Warrants or any ~~portion~~ rights attaching to the Warrants, or take any action in respect of ~~this paragraph which may~~ the Warrants in breach of the ITRs and any such exercise or action shall be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrantinvalid.

Appears in 1 contract

Sources: Warrant Agreement (Mallinckrodt PLC)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not ~~have the right to~~ exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~9.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares and reinstate the Warrant to the extent of such surrendered Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (Day One Biopharmaceuticals, Inc.)

Limitations on Exercise. ~~(a) Notwithstanding anything to the contrary contained herein, the~~ The Company shall not effect the exercise of any ~~portion of this Warrant~~Rights, and the Holder ~~of this Warrant~~ shall not have the right to exercise any portion of any Rights pursuant to the ~~Warrant,~~ terms and conditions of this Agreement and any such exercise shall be null and void ~~ab initio~~ and treated as if ~~the exercise had not been~~ never made, to the extent that ~~immediately prior~~ after giving effect to ~~or following~~ such exercise, the ~~Holder,~~ Holder together with the other Attribution ~~Parties, beneficially owns or~~ Parties collectively would beneficially own ~~as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder,~~ in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~9.9% (the “~~Maximum Percentage~~Beneficial Ownership Limitation”) of the shares of Common Stock ~~that would be issued and~~ outstanding ~~following~~ immediately after giving effect to such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of ~~calculating beneficial ownership for determining whether~~ the ~~Maximum Percentage is or will be exceeded~~foregoing sentence, the aggregate number of shares of Common Stock ~~held and/or~~ beneficially owned by the Holder ~~together with~~ and the other Attribution ~~Parties,~~ Parties (as defined in the November Notes) shall include the number of shares of Common Stock held ~~and/or beneficially owned~~ by the Holder ~~together with the~~ and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the ~~relevant Warrant~~ Rights issued hereunder with respect to which the determination of such sentence is being ~~made~~ made, but shall exclude ~~the number of~~ shares of Common Stock which would be issuable upon (iA) exercise of the remaining, ~~unexercised Warrant held and/or~~ nonexercised portion of the Rights beneficially owned by the Holder or any of the other Attribution Parties and (iiB) exercise or conversion of the unexercised or ~~unconverted~~ nonconverted portion of any other securities of the Company ~~held and/or beneficially owned by such Holder or any Attribution Party~~ (including, without limitation, any convertible ~~notes,~~ notes or convertible preferred stock or warrants) ~~that are~~ beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained ~~herein~~in this Section 4.8. For purposes of this ~~Paragraph 11(a)~~Section 4.8, beneficial ownership ~~of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence,~~ shall be calculated ~~and determined~~ in accordance with Section 13(d) of the ~~Exchange~~ 1934 Act ~~and~~ (as defined in the ~~rules promulgated thereunder~~November Notes). For purposes of ~~this Warrant, in~~ determining the number of outstanding shares of Common ~~Stock~~Stock the Holder may acquire upon the exercise of the Rights without exceeding the Beneficial Ownership Limitation, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the ~~Securities and Exchange Commission~~SEC, as the case may be, (2y) a more recent public announcement by the Company or (3z) any other written notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent, if any, setting forth the number of shares of Common Stock outstanding (~~such issued and outstanding shares,~~ the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives ~~an Exercise~~ a Notice of Issuance from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall ~~(i)~~ notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such ~~Exercise~~ Notice of Issuance would otherwise cause the Holder~~’s, together with the Attribution Parties’,~~ ’s beneficial ownership, as determined pursuant to this Section ~~11(a)~~4.8, to exceed the ~~Maximum Percentage~~Beneficial Ownership Limitation, the Holder must notify the Company of a reduced number of ~~Warrant Shares~~ shares of Common Stock to be purchased pursuant to such ~~Exercise~~ Notice of Issuance. For any reason at any time, upon the written or oral request of the Holder, the Company shall within one (1) Business Day confirm orally and in writing or by electronic mail to the Holder the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Sharesof Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including ~~this Warrant~~the Rights, by the Holder and ~~the~~ any other Attribution ~~Parties~~ Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of shares of Common Stock to the Holder upon exercise of ~~this Warrant~~ the Rights results in the ~~Holder, together with~~ Holder and the other Attribution ~~Parties,~~ Parties being deemed to beneficially own, in the aggregate, more than the ~~Maximum Percentage~~ Beneficial Ownership Limitation of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the ~~Exchange~~ 1934 Act), the number of shares so issued by which the Holder~~’s, together with~~ ’s and the other Attribution Parties’, ’ aggregate beneficial ownership exceeds the ~~Maximum Percentage~~ Beneficial Ownership Limitation (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder ~~and/or the Attribution Parties~~ shall not have the power to vote or to transfer the Excess Shares. ~~As soon as reasonably practicable after the issuance~~ Upon delivery of ~~the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By~~ a written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase (with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease the ~~Maximum Percentage~~ Beneficial Ownership Limitation to any other percentage not in excess of ~~19.99~~9.9% as specified in such notice; provided that (i) any such increase in the ~~Maximum Percentage~~ Beneficial Ownership Limitation will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company and ~~shall not negatively affect~~ (ii) any ~~partial exercise effected prior~~ such increase or decrease will apply only to ~~such change. (b) This Section 11 shall not restrict~~ the ~~number of shares of Common Stock which a~~ Holder or and the other Attribution Parties ~~may receive or beneficially own in order~~ and not to ~~determine~~ any other holder of Rights that is not an Attribution Party of the ~~amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant~~Holder. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of ~~this Warrant~~ the Rights hereunder in excess of the ~~Maximum Percentage~~ Beneficial Ownership Limitation shall not be deemed to be beneficially owned by the Holder ~~or the Attribution Parties~~ for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the ~~Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1)~~1934 Act. No prior inability to exercise ~~this Warrant~~ any Rights pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 4.8 to the extent necessary to correct this paragraph (or any portion of this ~~paragraph~~ paragraph) which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 4.8 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of ~~this Warrant~~Rights.

Appears in 1 contract

Sources: Waiver Agreement (Helios & Matheson Analytics Inc.)

Limitations on Exercise. ~~(a) Notwithstanding anything to the contrary contained herein, the~~ The Company shall not effect the exercise of any ~~portion of this Warrant~~Rights, and the Holder ~~of this Warrant~~ shall not have the right to exercise any portion of any Rights pursuant to the ~~Warrant,~~ terms and conditions of this Agreement and any such exercise shall be null and void ~~ab initio~~ and treated as if ~~the exercise had not been~~ never made, to the extent that ~~immediately prior~~ after giving effect to ~~or following~~ such exercise, the ~~Holder,~~ Holder together with the other Attribution ~~Parties, beneficially owns or~~ Parties (as defined below) collectively would beneficially own ~~as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder,~~ in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~9.99% (the “~~Maximum Percentage~~Beneficial Ownership Limitation”) of the shares of Common Stock ~~that would be issued and~~ outstanding ~~following~~ immediately after giving effect to such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of ~~calculating beneficial ownership for determining whether~~ the ~~Maximum Percentage is or will be exceeded~~foregoing sentence, the aggregate number of shares of Common Stock ~~held and/or~~ beneficially owned by the Holder ~~together with~~ and the other Attribution ~~Parties,~~ Parties shall include the number of shares of Common Stock held ~~and/or beneficially owned~~ by the Holder ~~together with the~~ and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the ~~relevant Warrant~~ Rights issued hereunder with respect to which the determination of such sentence is being ~~made~~ made, but shall exclude ~~the number of~~ shares of Common Stock which would be issuable upon (iA) exercise of the remaining, ~~unexercised Warrant held and/or~~ nonexercised portion of the Rights beneficially owned by the Holder or any of the other Attribution Parties and (iiB) exercise or conversion of the unexercised or ~~unconverted~~ nonconverted portion of any other securities of the Company ~~held and/or beneficially owned by such Holder or any Attribution Party~~ (including, without limitation, any convertible ~~notes,~~ notes or convertible preferred stock or warrants) ~~that are~~ beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained ~~herein~~in this Section 4.8. For purposes of this ~~Paragraph 11(a),~~ Section 4.8 beneficial ownership ~~of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence,~~ shall be calculated ~~and determined~~ in accordance with Section 13(d) of the Securities Exchange Act ~~and~~ of 1934, as amended (the ~~rules promulgated thereunder~~“1934 Act”). For purposes of ~~this Warrant, in~~ determining the number of outstanding shares of Common ~~Stock~~Stock the Holder may acquire upon the exercise of the Rights without exceeding the Beneficial Ownership Limitation, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the ~~Securities and Exchange Commission~~SEC, as the case may be, (2y) a more recent public announcement by the Company or (3z) any other written notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent, if any, setting forth the number of shares of Common Stock outstanding (~~such issued and outstanding shares,~~ the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives ~~an Exercise~~ a Notice of Issuance from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall ~~(i)~~ notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such ~~Exercise~~ Notice of Issuance would otherwise cause the Holder~~’s, together with the Attribution Parties’,~~ ’s beneficial ownership, as determined pursuant to this Section ~~11(a)~~4.8, to exceed the ~~Maximum Percentage~~Beneficial Ownership Limitation, the Holder must notify the Company of a reduced number of ~~Warrant Shares~~ shares of Common Stock to be purchased pursuant to such ~~Exercise~~ Notice of Issuance. For any reason at any time, upon the written or oral request of the Holder, the Company shall within one (1) Business Day confirm orally and in writing or by electronic mail to the Holder the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Sharesof Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including ~~this Warrant~~the Rights, by the Holder and ~~the~~ any other Attribution ~~Parties~~ Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of shares of Common Stock to the Holder upon exercise of ~~this Warrant~~ the Rights results in the ~~Holder, together with~~ Holder and the other Attribution ~~Parties,~~ Parties being deemed to beneficially own, in the aggregate, more than the ~~Maximum Percentage~~ Beneficial Ownership Limitation of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the ~~Exchange~~ 1934 Act), the number of shares so issued by which the Holder~~’s, together with~~ ’s and the other Attribution Parties’, ’ aggregate beneficial ownership exceeds the ~~Maximum Percentage~~ Beneficial Ownership Limitation (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder ~~and/or the Attribution Parties~~ shall not have the power to vote or to transfer the Excess Shares. ~~As soon as reasonably practicable after the issuance~~ Upon delivery of ~~the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By~~ a written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase (with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease the ~~Maximum Percentage~~ Beneficial Ownership Limitation to any other percentage not in excess of ~~19.99~~9.99% as specified in such notice; provided that (i) any such increase in the ~~Maximum Percentage~~ Beneficial Ownership Limitation will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company and ~~shall not negatively affect~~ (ii) any ~~partial exercise effected prior~~ such increase or decrease will apply only to ~~such change. (b) This Section 11 shall not restrict~~ the ~~number of shares of Common Stock which a~~ Holder or and the other Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall and not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.to

Appears in 1 contract

Sources: Exchange Agreement (Bed Bath & Beyond Inc)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect ~~the~~ any exercise ~~of any portion~~ of this Warrant, and the Holder of shall not be entitled to exercise this Warrant ~~shall not have the right to exercise any portion~~ for a number of ~~the Warrant~~Warrant Shares in excess of that number of Warrant Shares which, ~~and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that~~ upon giving effect or immediately prior to ~~or following~~ such exercise, would cause (i) the aggregate number of shares of Common Stock beneficially owned by the Holder, ~~together~~ its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the ~~Attribution Parties, beneficially owns or would beneficially own as determined in accordance with~~ Holder’s for purposes of Section 13(d) of the Securities Exchange Act ~~and~~ of 1934, as amended (the ~~rules promulgated thereunder~~“Exchange Act”), ~~in excess of a percentage set~~ to exceed 9.99% (or, at the ~~discretion~~ election of ~~each Holder between 0% and 19.99%~~ the purchaser, 4.99%) (the “Maximum Percentage”) of the ~~Common Stock that would be~~ total number of issued and outstanding following such exercise. The initial Maximum Percentage is [•]%. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock ~~held and/or~~ of the Company following such exercise, or (ii) the combined voting power of the securities of the Company beneficially owned by the Holder ~~together with the Attribution Parties, shall include the number of shares~~ and its Affiliates and any other Persons whose beneficial ownership of Common Stock ~~held and/or beneficially owned by the Holder together~~ would be aggregated with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For Holder’s for purposes of ~~this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with~~ Section 13(d) of the Exchange Act ~~and~~ to exceed 9.99% (or, at the ~~rules promulgated thereunder~~election of the purchaser, 4.99%) of the combined voting power of all of the securities of the Company then outstanding following such exercise. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Form 10-K, Q or Form 10-~~Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission~~K, as the case may be, filed with the Commission prior to the Exercise Date, (2y) a more recent public announcement by the Company or (3z) any other notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent setting forth the number of shares of Common Stock ~~outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~outstanding. ~~For any reason at any time, upon~~ Upon the written ~~or oral~~ request of the Holder, the Company shall within ~~one~~ three (3) Trading ~~Day~~ Days confirm ~~orally and~~ in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder ~~and the Attribution Parties~~ since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the such number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shareswas reported. By written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of ~~19.99~~9.99% specified in such notice; provided that any such increase ~~in the Maximum Percentage~~ or decrease will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company. For purposes of this Section 11(a), the aggregate number of shares of Common Stock or voting securities beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act shall include the shares of Common Stock issuable upon the exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (x) exercise of the remaining unexercised and non-cancelled portion of this Warrant by the Holder and (y) exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including without limitation any securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including without limitation any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock), is subject to a limitation on conversion or exercise analogous to the limitation contained herein and ~~shall not negatively affect~~ is beneficially owned by the Holder or any ~~partial exercise effected prior to such change~~of its Affiliates and other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Underwriting Agreement (TELA Bio, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~9.99% (the “Maximum Percentage”) of the ~~Common Stock~~ Ordinary Shares that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of ~~shares of Common Stock~~ Ordinary Shares held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of ~~shares of Common Stock~~ Ordinary Shares held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of ~~shares of Common Stock~~ Ordinary Shares issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of ~~shares of Common Stock~~ Ordinary Shares which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible ~~stock~~ shares or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding ~~shares of Common Stock~~Ordinary Shares, a Holder of this Warrant may rely on the number of outstanding ~~shares of Common Stock~~ Ordinary Shares as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of ~~shares of Common Stock~~ Ordinary Shares outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one ~~Trading Day~~ business day confirm orally and in writing or by electronic mail to the Holder the number of ~~shares of Common Stock~~ Ordinary Shares then outstanding. The Holder shall disclose to the Company the number of ~~shares of Common Stock~~ Ordinary Shares that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding ~~shares of Common Stock~~ Ordinary Shares is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of ~~shares of Common Stock~~ Ordinary Shares then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding ~~shares of Common Stock~~ Ordinary Shares shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of ~~Common Stock~~ Ordinary Shares to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding ~~shares of Common Stock~~ Ordinary Shares (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of ~~shares of Common Stock~~ Ordinary Shares which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the ~~shares of Common Stock~~ Ordinary Shares issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Pre Funded Warrant Agreement (Crescent Biopharma, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not ~~have the right to~~ exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99%~~ [4.99][9.99]% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock, non-voting common stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this ~~Paragraph 11(a~~Section11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the ~~Securities and Exchange~~ Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within ~~one~~ two Trading ~~Day~~ Days confirm ~~orally and~~ in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares, if any. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this ~~paragraph~~ Section 11 shall have any effect on the applicability of the provisions of this ~~paragraph~~ Section 11 with respect to any subsequent determination of exercisability. The provisions of this ~~paragraph~~ Section 11 shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this ~~paragraph~~ Section 11 or any portion of this ~~paragraph~~ Section 11 which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this ~~paragraph~~ Section 11 may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (Aligos Therapeutics, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99%~~ [4.99][9.99]% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this ~~Paragraph~~ Section 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the ~~Securities and Exchange~~ Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one ~~Trading~~ (1) Business Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of ~~19.99~~19.9% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (Alto Neuroscience, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99%~~ [4.99][9.99]% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one ~~Trading~~ Business Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (Lb Pharmaceuticals Inc)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect ~~the~~ any exercise ~~of any portion~~ of this Warrant, and the Holder of shall not be entitled to exercise this Warrant ~~shall not have the right~~ for a number of Warrant Shares in excess of that number of Warrant Shares which, immediately after giving effect to ~~exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following~~ such exercise, would cause (i) the aggregate number of Common Stock beneficially owned by the Holder, ~~together~~ its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the ~~Attribution Parties, beneficially owns or would beneficially own as determined in accordance with~~ Holder’s for purposes of Section 13(d) of the Exchange Act ~~and the rules promulgated thereunder, in excess~~ (such as any other members of a ~~percentage set at the discretion of each Holder between 0% and 19.99% (the~~ Section 13(d) “~~Maximum Percentage~~group”) to exceed 9.99% of the ~~Common Stock that would be~~ total number of issued and outstanding Common Stock of the Company following such exercise~~. The initial Maximum Percentage is [•]%. For purposes~~ , or (ii) the combined voting power of ~~calculating beneficial ownership for determining whether~~ the ~~Maximum Percentage is or will be exceeded,~~ securities of the ~~aggregate number of shares of Common Stock held and/or~~ Company beneficially owned by the Holder ~~together with the Attribution Parties, shall include the number of shares~~ and its Affiliates and any other Persons whose beneficial ownership of Common Stock ~~held and/or beneficially owned by the Holder together~~ would be aggregated with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For Holder’s for purposes of ~~this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with~~ Section 13(d) of the Exchange Act (such as any other members of a Section 13(d) “group”) to exceed 9.99% of the combined voting power of all of the securities of the Company then outstanding following such exercise (the thresholds in clauses (i) and (ii) each representing the ~~rules promulgated thereunder~~“Maximum Percentage”). For purposes of this Warrant, in determining the number of outstanding ~~shares of~~ Common Stock, a the Holder ~~of this Warrant~~ may rely on the number of outstanding ~~shares of~~ Common Stock as reflected in (1x) the Company’s most recent Form 10-K, Q or Form 10-~~Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission~~K, as the case may be, filed with the Commission prior to the date hereof, (2y) a more recent public announcement by the Company or (3z) any other notice by the Company or ~~the Company’s~~ its transfer agent setting forth the number of ~~shares of~~ Common Stock ~~outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~outstanding. ~~For any reason at any time, upon~~ Upon the written ~~or oral~~ request of the Holder, the Company shall within ~~one~~ three (3) Trading ~~Day~~ Days confirm ~~orally and~~ in writing or by electronic mail to the Holder the number of ~~shares of~~ Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding ~~shares of~~ Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder ~~and the Attribution Parties~~ since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the such number of outstanding ~~shares of~~ Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shareswas reported. By written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage specified not in excess of ~~19.99~~9.99% as specified in such notice; provided that any such increase ~~in the Maximum Percentage~~ will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company. For purposes of this Section 11(a), the aggregate number of Common Stock or voting securities beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock or voting securities would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act (such as any other members of a Section 13(d) “group”) shall include the Common Stock issuable upon the exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of Common Stock which would be issuable upon (x) exercise of the remaining unexercised and non-cancelled portion of this Warrant by the Holder and (y) exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including without limitation any securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including without limitation any debt, preferred share, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock), is subject to a limitation on conversion or exercise analogous to the limitation contained herein and ~~shall not negatively affect~~ is beneficially owned by the Holder or any ~~partial exercise effected prior to~~ of its Affiliates and other Persons whose beneficial ownership of Common Stock or voting securities would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act (such ~~change~~as any other members of a Section 13(d) “group”). (b) This Section 11 shall not restrict the number of ~~shares of~~ Common Stock ~~which~~ that a Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Exchange Agreement (CARGO Therapeutics, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not ~~have the right to~~ exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99%~~ [4.99%/9.99%/19.99%] (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Security Agreement (Leap Therapeutics, Inc.)

Limitations on Exercise. (a) ~~Notwithstanding anything to the contrary contained herein, the Company~~ The Holder shall ~~not effect the exercise of any portion of this Warrant, and the Holder of~~ be prohibited from exercising this Warrant ~~shall not have the right to exercise any portion of the Warrant~~if, ~~and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that~~ immediately prior to or following such ~~exercise~~exercise (or portion of such exercise thereof), the Holder, together with ~~the~~ its Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act ~~and the rules promulgated thereunder, in excess of a percentage set at the discretion of each Holder between 0~~more than [4.99% ~~and 19.99%~~ ][9.99%] (the “Maximum Percentage”) of the ~~Common Stock that would be~~ issued and outstanding ~~following such exercise. The initial Maximum Percentage~~ Common Stock or any other class of equity security (other than an exempted security) of the Company that is ~~[•]%~~registered pursuant to Section 12 of the Exchange Act. For purposes of calculating beneficial ~~ownership for determining whether the Maximum Percentage is or will be exceeded~~ownership, the aggregate number of shares of Common Stock ~~held and/or~~ beneficially owned by the ~~Holder~~ Holder, together with ~~the~~ its Attribution Parties, shall include the number of shares of Common Stock ~~held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock~~ issuable upon exercise of ~~the relevant~~ this Warrant with respect to which the determination is being ~~made~~ made, but shall exclude the number of shares of Common Stock which ~~would be~~ are issuable upon (i) ~~exercise~~ conversion of the remaining, ~~unexercised~~ unconverted portion of this Warrant ~~held and/or~~ beneficially owned by the ~~Holder or the~~ Holder, together with its Attribution ~~Parties~~ Parties, and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company ~~held and/or~~ beneficially owned by ~~such Holder or any~~ the Holder, together with its Attribution ~~Party~~ Parties (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this ~~Paragraph~~ Section 11(a), beneficial ownership ~~of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence,~~ shall be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, it being acknowledged and agreed that the Holder is solely responsible for any schedules required to be filed in accordance therewith. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the ~~Securities and Exchange Commission~~SEC, as the case may be, (2) a more recent public announcement by the Company or (3) any other written notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent setting forth the number of shares of Common Stock ~~outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~outstanding. For any reason at any time, upon the written ~~or oral~~ request of the Holder, the Company shall within ~~one Trading Day~~ two (2) Business Days confirm to the Holder, orally and in ~~writing or by electronic mail to the Holder~~ writing, the number of shares of Common Stock then outstanding. ~~The~~ Each delivery of an Exercise Notice by the Holder ~~shall disclose to~~ will constitute a representation by the Holder, upon which the Company shall be entitled to rely without investigation, that the Holder has evaluated the limitation set forth in this paragraph and determined that the issuance of the full number of Warrant Shares requested in such Exercise Notice is permitted under this paragraph. Any purported delivery of any number of shares of Common Stock ~~that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and~~ or any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder other security upon exercise of this Warrant ~~results in~~ shall be void and have no effect to the extent, but only to the extent, that before or after such delivery, the exercising Holder, together with ~~the~~ its Affiliates and any other Attribution ~~Parties, being deemed to beneficially own,~~ Party would have beneficial ownership in ~~the aggregate, more than~~ excess of the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess SharesPercentage. By written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the ~~Company and shall not negatively affect any partial exercise effected prior to such change~~Company. (b) This Section 11 shall not restrict the number of shares of Common Stock which a the Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that ~~such~~ the Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section ~~9(c~~9(d) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Security Agreement (Beyond Air, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of a percentage set at the discretion of each Holder between 0% and 19.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise. The initial Maximum Percentage is [•]%. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one ~~Trading~~ Trade Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (In8bio, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect ~~the~~ any exercise ~~of any portion~~ of this Warrant, and the Holder of shall not be entitled to exercise this Warrant ~~shall not have the right to exercise any portion~~ for a number of ~~the Warrant~~Warrant Shares in excess of that number of Warrant Shares which, ~~and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that~~ upon giving effect or immediately prior to ~~or following~~ such exercise, would cause (i) the aggregate number of shares of Common Stock beneficially owned by the Holder, ~~together~~ its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the ~~Attribution Parties, beneficially owns or would beneficially own as determined in accordance with~~ Holder’s for purposes of Section 13(d) of the Exchange Act ~~and the rules promulgated thereunder, in excess of a percentage set at the discretion of each Holder between 0% and 19.99~~to exceed 9.99% (the “Maximum Percentage”) of the ~~Common Stock that would be~~ total number of issued and outstanding following such exercise. The initial Maximum Percentage is [•]%. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock ~~held and/or~~ of the Company following such exercise, or (ii) the combined voting power of the securities of the Company beneficially owned by the Holder ~~together with the Attribution Parties, shall include the number of shares~~ and its Affiliates and any other Persons whose beneficial ownership of Common Stock ~~held and/or beneficially owned by the Holder together~~ would be aggregated with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For Holder’s for purposes of ~~this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with~~ Section 13(d) of the Exchange Act ~~and~~ to exceed 9.99% of the ~~rules promulgated thereunder~~combined voting power of all of the securities of the Company then outstanding following such exercise. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Form 10-K, Q or Form 10-~~Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission~~K, as the case may be, filed with the Commission prior to the Exercise Date, (2y) a more recent public announcement by the Company or (3z) any other notice by the Company or ~~the Company’s transfer agent~~ its Transfer Agent setting forth the number of shares of Common Stock ~~outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~outstanding. ~~For any reason at any time, upon~~ Upon the written ~~or oral~~ request of the Holder, the Company shall within ~~one~~ three Trading ~~Day~~ Days confirm ~~orally and~~ in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder ~~and the Attribution Parties~~ since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the such number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shareswas reported. By written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other ~~percentage~~ percentage, not in excess of 19.99% %, specified in such notice; provided that any such increase ~~in the Maximum Percentage~~ or decrease will not be effective until the 61st day after such notice is delivered to the Company. For purposes of this Section 11(a), the aggregate number of shares of Common Stock or voting securities beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act shall include the shares of Common Stock issuable upon the exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (x) exercise of the remaining unexercised and non-cancelled portion of this Warrant by the Holder and (y) exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including without limitation any securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including without limitation any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock), is subject to a limitation on conversion or exercise analogous to the limitation contained herein and ~~shall not negatively affect~~ is beneficially owned by the Holder or any ~~partial exercise effected prior to such change~~of its Affiliates and other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Subscription Agreement (Bellerophon Therapeutics, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of ~~this~~ the Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99%~~ [4.99%][9.99%] (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this ~~Paragraph~~ Section 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of ~~this~~ the Warrant, in determining the number of outstanding shares of Common Stock, a Holder of ~~this~~ the Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the ~~Securities and Exchange~~ Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one ~~Trading~~ (1) Business Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of ~~this~~ the Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section ~~9(c~~9(d) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of ~~this~~ Section 11 11(a) to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in ~~this~~ Section 11 11(a) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (CervoMed Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of ~~this~~ the Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~4.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of ~~this~~ the Warrant, in determining the number of outstanding shares of Common Stock, a Holder of ~~this~~ the Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the ~~Securities and Exchange~~ Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one ~~Trading~~ (1) Business Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of ~~this~~ the Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 11(a) to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 11(a) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: 3(a)(9) Exchange Agreement (Baker Bros. Advisors Lp)

Limitations on Exercise. ~~(a)~~ Notwithstanding anything to the contrary contained herein, the Company shall not effect ~~the~~ any exercise ~~of any portion~~ of this Warrant, and the Holder of shall not be entitled to exercise this Warrant ~~shall not have the right to exercise any portion~~ for a number of ~~the Warrant~~Warrant Shares in excess of that number of Warrant Shares which, ~~and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that~~ upon giving effect or immediately prior to ~~or following~~ such exercise, would cause (i) the aggregate number of shares of Common Stock beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of shares of Common Stock would be aggregated with the Holder~~, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with~~ ’s for purposes of Section 13(d) of the Exchange ~~Act and the rules promulgated thereunder~~Act, ~~in excess of a percentage set at the discretion of each Holder between 0% and~~ to exceed 19.99% (the “Maximum Percentage”) of the ~~Common Stock that would be~~ total number of issued and outstanding shares of Common Stock of the Company following such exercise~~. The initial Maximum Percentage is [•]%. For purposes~~ , or (ii) the combined voting power of ~~calculating~~ the securities of the Company beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership ~~for determining whether the Maximum Percentage is or will be exceeded, the aggregate number~~ of shares of Common Stock ~~held and/or beneficially owned by the Holder together~~ would be aggregated with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For Holder’s for purposes of ~~this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with~~ Section 13(d) of the Exchange Act to exceed 19.99% of the combined voting power of all of the securities of the Company then outstanding following such exercise; provided, however, that the Holder shall be permitted to exercise this Warrant for a number of Warrant Shares in excess of the Maximum Percentage upon receipt of such approval as may be required by the applicable rules and regulations of The Nasdaq Stock Market, LLC (or any successor entity) (“Nasdaq”), if any, from the ~~rules promulgated thereunder~~stockholders of the Company with respect to a change of control of the Company pursuant to Section 5635(b) of the Listing Rules of Nasdaq resulting from the beneficial ownership in excess of 19.99% of the Company’s outstanding Common Stock upon the issuance of the Warrant Shares (“Stockholder Approval”). For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Form 10-K, Q or Form 10-~~Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission~~K, as the case may be, filed with the Commission prior to the date hereof, (2y) a more recent public announcement by the Company or (3z) any other notice by the Company ~~or the Company’s transfer agent~~ setting forth the number of shares of Common Stock ~~outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~outstanding. ~~For any reason at any time, upon~~ Upon the written ~~or oral~~ request of the Holder, the Company shall within ~~one~~ three (3) Trading ~~Day~~ Days confirm ~~orally and~~ in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder ~~and the Attribution Parties~~ since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the such number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shareswas reported. By written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any such increase ~~in the Maximum Percentage~~ will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company; provided, however, that the Holder shall be permitted to increase the Maximum Percentage upon receipt of Stockholder Approval. For purposes of this Section 12(a), the aggregate number of shares of Common Stock or voting securities beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Shares would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act shall include the shares of Common Stock issuable upon the exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (x) exercise of the remaining unexercised and non-cancelled portion of this Warrant by the Holder and (y) exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including without limitation any securities of the Company which would entitle the holder thereof to acquire at any time shares of Common Stock, including without limitation any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares of Common Stock), is subject to a limitation on conversion or exercise analogous to the limitation contained herein and ~~shall not negatively affect~~ is beneficially owned by the Holder or any ~~partial exercise effected prior to such change. (b~~of its Affiliates and other Persons whose beneficial ownership of shares of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act. This Section 11 12 shall not restrict the number of shares of Common Stock which a Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Pre Funded Warrant to Purchase Common Stock (Elicio Therapeutics, Inc.)

Limitations on Exercise. ~~(a) Notwithstanding anything to the contrary contained herein, the~~ The Company shall not effect ~~the~~ any exercise ~~of any portion~~ of this Warrant, and the Holder ~~of this Warrant~~ shall not have the right to exercise any portion of ~~the~~ this Warrant, ~~and any such exercise shall be null and void ab initio and treated as if the exercise had not been made~~pursuant to SECTION 2.1 or otherwise, to the extent that ~~immediately prior~~ after giving effect to ~~or following~~ such issuance after exercise, the ~~Holder,~~ Holder (together with the ~~Attribution Parties, beneficially owns~~ Holder's affiliates and any other person or entity acting as a group together with Holder or any of Holder's affiliates) would beneficially own ~~as determined~~ in ~~accordance with Section 13(d~~excess of 4.99% (the "APPLICABLE PERCENTAGE") of the ~~Exchange Act and the rules promulgated thereunder, in excess~~ number of ~~a percentage set at the discretion of each Holder between 0% and 19.99% (the “Maximum Percentage”)~~ shares of the Common Stock ~~that would be issued and~~ outstanding ~~following~~ immediately after giving effect to such ~~exercise. The initial Maximum Percentage is [•]%~~issuance. For purposes of ~~calculating beneficial ownership for determining whether~~ the ~~Maximum Percentage is or will be exceeded~~foregoing sentence, ~~the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include~~ the number of shares of Common Stock ~~held and/or~~ beneficially owned by the Holder ~~together with the Attribution Parties plus~~ and its affiliates shall include the number of shares of Common Stock issuable upon exercise of ~~the relevant~~ this Warrant with respect to which the determination of such sentence is being ~~made~~ made, but shall exclude the number of shares of Common Stock which would be issuable upon (iA) exercise of the remaining, ~~unexercised~~ nonexercised portion of this Warrant ~~held and/or~~ beneficially owned by the Holder or ~~the Attribution Parties~~ any of its affiliates and (iiB) exercise or conversion of the unexercised or ~~unconverted~~ nonconverted portion of any other securities of the Company ~~held and/or beneficially owned by such Holder or any Attribution Party~~ (including, without limitation, any ~~convertible notes, convertible stock or~~ other warrants) ~~that are~~ subject to a limitation on conversion or exercise analogous to the limitation contained ~~herein. For purposes of this Paragraph 11(a), beneficial ownership of~~ herein beneficially owned by the Holder or ~~the Attribution Parties shall, except~~ any of its affiliates. Except as set forth in the ~~immediately~~ preceding sentence, for purposes of this SECTION 2.5, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. In addition, a determination as to any group status as contemplated above shall also be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this ~~Warrant~~SECTION 2.5, in determining the number of outstanding shares of Common Stock, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s 's most recent Form 10-K, QSB or Form 10-~~Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission~~KSB, as the case may be, (2y) a more recent public announcement by the Company or (3z) any other notice by the Company or the Company~~’s transfer agent~~ 's Transfer Agent setting forth the number of shares of Common Stock ~~outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~outstanding. ~~For any reason at any time, upon~~ Upon the written or oral request of the Holder, the Company shall within ~~one Trading Day~~ two trading days confirm orally and in writing ~~or by electronic mail~~ to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder ~~and the Attribution Parties~~ or its affiliates since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the such number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisabilitywas reported. The provisions of this paragraph shall be ~~construed and~~ implemented in a manner otherwise than in strict conformity with the terms of this ~~Section 11 to the extent necessary~~ SECTION 2.5 to correct this paragraph (or any portion ~~of this paragraph~~ hereof) which may be defective or inconsistent with the intended Applicable Percentage beneficial ownership limitation herein contained ~~in this Section 11~~ or to make changes or supplements necessary or desirable to properly give effect to such Applicable Percentage limitation. The ~~limitation~~ limitations contained in this paragraph ~~may not be waived and~~ shall apply to a successor holder of this Warrant. The holders of Common Stock of the Company shall be third party beneficiaries of this SECTION 2.5 and the Company may not waive this SECTION 2.5 without the consent of holders of a majority of its Common Stock.

Appears in 1 contract

Sources: Note and Warrant Purchase Agreement (National Coal Corp)

Limitations on Exercise. ~~(a) Notwithstanding anything to the contrary contained herein, the~~ The Company shall not effect the exercise of any ~~portion of this Warrant~~Rights, and the Holder ~~of this Warrant~~ shall not have the right to exercise any portion of any Rights pursuant to the ~~Warrant,~~ terms and conditions of this Agreement and any such exercise shall be null and void ~~ab initio~~ and treated as if ~~the exercise had not been~~ never made, to the extent that ~~immediately prior~~ after giving effect to ~~or following~~ such exercise, the ~~Holder,~~ Holder together with the other Attribution ~~Parties, beneficially owns or~~ Parties collectively would beneficially own ~~as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder,~~ in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~9.99% (the “~~Maximum Percentage~~Beneficial Ownership Limitation”) of the shares of Common Stock ~~that would be issued and~~ outstanding ~~following~~ immediately after giving effect to such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of ~~calculating beneficial ownership for determining whether~~ the ~~Maximum Percentage is or will be exceeded~~foregoing sentence, the aggregate number of shares of Common Stock ~~held and/or~~ beneficially owned by the Holder ~~together with~~ and the other Attribution ~~Parties,~~ Parties (as defined in the Existing Warrants) shall include the number of shares of Common Stock ~~held and/or~~ beneficially owned by the Holder ~~together with the~~ and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the ~~relevant Warrant~~ Rights issued hereunder with respect to which the determination of such sentence is being ~~made~~ made, but shall exclude ~~the number of~~ shares of Common Stock which would be issuable upon (iA) exercise of the remaining, ~~unexercised Warrant held and/or~~ nonexercised portion of the Rights beneficially owned by the Holder or any of the other Attribution Parties and (iiB) exercise or conversion of the unexercised or ~~unconverted~~ nonconverted portion of any other securities of the Company ~~held and/or beneficially owned by such Holder or any Attribution Party~~ (including, without limitation, any convertible ~~notes,~~ notes or convertible preferred stock or warrants) ~~that are~~ beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained ~~herein~~in this Section 11.8. For purposes of this ~~Paragraph 11(a)~~Section 11.8, beneficial ownership ~~of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence,~~ shall be calculated ~~and determined~~ in accordance with Section 13(d) of the ~~Exchange Act and the rules promulgated thereunder~~1934 Act. For purposes of ~~this Warrant, in~~ determining the number of outstanding shares of Common ~~Stock~~Stock the Holder may acquire upon the exercise of the Rights without exceeding the Beneficial Ownership Limitation, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the ~~Securities and Exchange Commission~~SEC, as the case may be, (2y) a more recent public announcement by the Company or (3z) any other written notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent, if any, setting forth the number of shares of Common Stock outstanding (~~such issued and outstanding shares,~~ the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives ~~an Exercise~~ a Notice of Issuance from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall ~~(i)~~ notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such ~~Exercise~~ Notice of Issuance would otherwise cause the Holder~~’s, together with the Attribution Parties’,~~ ’s beneficial ownership, as determined pursuant to this Section ~~11(a)~~11.8, to exceed the ~~Maximum Percentage~~Beneficial Ownership Limitation, the Holder must notify the Company of a reduced number of ~~Warrant Shares~~ shares of Common Stock to be ~~purchased~~ issued pursuant to such ~~Exercise~~ Notice of Issuance. For any reason at any time, upon the written (which may be an e-mail) request of the Holder, the Company shall within one (1) Business Day confirm orally and in writing (which may be an e-mail) to the Holder the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Sharesof Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including ~~this Warrant~~the Rights, by the Holder and ~~the~~ any other Attribution ~~Parties~~ Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of shares of Common Stock to the Holder upon exercise of ~~this Warrant~~ the Rights results in the ~~Holder, together with~~ Holder and the other Attribution ~~Parties,~~ Parties being deemed to beneficially own, in the aggregate, more than the ~~Maximum Percentage~~ Beneficial Ownership Limitation of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the ~~Exchange~~ 1934 Act), the number of shares so issued by which the Holder~~’s, together with~~ ’s and the other Attribution Parties’, ’ aggregate beneficial ownership exceeds the ~~Maximum Percentage~~ Beneficial Ownership Limitation (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder ~~and/or the Attribution Parties~~ shall not have the power to vote or to transfer the Excess Shares. ~~As soon as reasonably practicable after the issuance~~ Upon delivery of ~~the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By~~ a written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase (with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease the ~~Maximum Percentage~~ Beneficial Ownership Limitation to any other percentage not in excess of ~~19.99~~9.99% as specified in such notice; provided that (i) any such increase in the ~~Maximum Percentage~~ Beneficial Ownership Limitation will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company and ~~shall not negatively affect~~ (ii) any ~~partial exercise effected prior~~ such increase or decrease will apply only to ~~such change. (b) This Section 11 shall not restrict~~ the ~~number of shares of Common Stock which a~~ Holder or and the other Attribution Parties ~~may receive or beneficially own in order~~ and not to ~~determine~~ any other holder of Rights that is not an Attribution Party of the ~~amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant~~Holder. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of ~~this Warrant~~ the Rights hereunder in excess of the ~~Maximum Percentage~~ Beneficial Ownership Limitation shall not be deemed to be beneficially owned by the Holder ~~or the Attribution Parties~~ for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the ~~Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1)~~1934 Act. No prior inability to exercise ~~this Warrant~~ any Rights pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 11.8 to the extent necessary to correct this paragraph (or any portion of this ~~paragraph~~ paragraph) which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 11.8 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of ~~this Warrant~~Rights.

Appears in 1 contract

Sources: Exchange Agreement (Inpixon)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained in any Section herein, the Company shall not effect ~~the~~ any exercise ~~of any portion~~ of this Warrant, and the Holder of shall not be entitled to exercise this Warrant ~~shall not have the right~~ for a number of Warrant Shares in excess of that number of Warrant Shares which, upon giving effect to ~~exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following~~ such exercise, ~~the Holder, together with the Attribution Parties, beneficially owns or~~ would ~~beneficially own as determined in accordance with Section 13(d~~cause (i) of the Exchange Act and the rules promulgated thereunder, in excess of a percentage set at the discretion of each Holder between 0% and 19.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise. The initial Maximum Percentage is [•]%. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock ~~held and/or~~ beneficially owned by the Holder ~~together~~ and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the ~~Attribution Parties~~Holder’s for purposes of Section 13(d) of the Exchange Act, ~~shall include~~ to exceed 9.99% of the total number of issued and outstanding shares of Common Stock ~~held and/or~~ of the Company following such exercise, or (ii) the combined voting power of the securities of the Company beneficially owned by the Holder ~~together with the Attribution Parties plus the number of shares~~ and its Affiliates and any other Persons whose beneficial ownership of Common Stock ~~issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which~~ would be ~~issuable upon (i) exercise of~~ aggregated with the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For Holder’s for purposes of ~~this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with~~ Section 13(d) of the Exchange Act ~~and~~ to exceed 9.99% of the ~~rules promulgated thereunder~~combined voting power of all of the securities of the Company then outstanding following such exercise. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Quarterly Report on Form 10-Q or Annual Report on Form 10-K~~, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission~~, as the case may be, filed with the Commission prior to the date hereof, (2y) a more recent public announcement by the Company or (3z) any other notice by the Company or ~~the Company’s~~ its transfer agent setting forth the number of shares of Common Stock ~~outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~outstanding. ~~For any reason at any time, upon~~ Upon the written ~~or oral~~ request of the Holder, the Company shall within ~~one~~ three (3) Trading ~~Day~~ Days confirm ~~orally and~~ in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder ~~and the Attribution Parties~~ since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the such number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shareswas reported. By written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage specified not in excess of 19.99% ~~specified~~ in such notice; provided that any such increase ~~in the Maximum Percentage~~ will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company. For purposes of this Section 11(a), the aggregate number of shares of Common Stock or voting securities beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act shall include the shares of Common Stock issuable upon the exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (x) exercise of the remaining unexercised and non-cancelled portion of this Warrant by the Holder and (y) exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including, without limitation, any securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock), is subject to a limitation on conversion or exercise analogous to the limitation contained herein and ~~shall not negatively affect~~ is beneficially owned by the Holder or any ~~partial exercise effected prior to such change~~of its Affiliates and other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act. (b) This Section 11 shall not restrict the number of shares of Common Stock ~~which~~ that a Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder 9 of this Warrant.

Appears in 1 contract

Sources: Securities Purchase Agreement (ImmunoGen, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, at any time that any of the ~~Company shall not effect~~ Company’s equity securities are registered under Section 12 of the ~~exercise~~ Securities Exchange Act of ~~any portion~~ 1934, as amended (the “Exchange Act”) the number of ~~this Warrant, and~~ shares of Common Stock that may be acquired by the Holder upon any exercise of this Warrant ~~shall not have the right to exercise any portion of the Warrant, and any such exercise~~ (or otherwise in respect hereof) shall be ~~null and void ab initio and treated as if the exercise had not been made,~~ limited to the extent ~~that immediately prior~~ necessary to or insure that, following such ~~exercise~~exercise (or other issuance), the ~~Holder, together~~ total number of shares of Common Stock then beneficially owned by such Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the ~~Attribution Parties~~Holder’s for purposes of Section 13(d) of the Exchange Act, ~~beneficially owns or would beneficially own as~~ does not exceed 4.999% (the “5% Maximum Percentage”) of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock issuable upon such exercise). For such purposes, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder~~, in excess of a percentage set at the discretion of each Holder between 0% and 19.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The ~~initial Maximum Percentage is [•]%. For purposes~~ Company shall, instead of ~~calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of~~ issuing shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise in excess of the ~~relevant Warrant with respect~~ limitation referred to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), suspend its obligation to ~~exceed~~ issue shares in excess of the ~~Maximum Percentage~~foregoing limitation until such time, ~~the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to~~ if any, as such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock ~~shall~~ may be ~~determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant~~issued in compliance with such limitation. Additionally, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a the Holder may waive the provisions of this ~~Warrant may from time to time~~ Section 11(a) or increase or decrease the 5% Maximum Percentage to any other percentage ~~not in excess of 19.99%~~ specified in such notice; ~~provided~~ provided, that (i) any such waiver or increase ~~in the Maximum Percentage~~ or decrease will not be effective until the 61st day after such notice is delivered to the ~~Company~~ Company, and ~~shall~~ (ii) any such waiver or increase or decrease will apply only to the Holder and not ~~negatively affect~~ to any ~~partial exercise effected prior to~~ other holder of Warrants. As used herein, the term “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such ~~change.~~ terms are used in and construed under Rule 144; and “Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (bor an agency or subdivision thereof) ~~This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities~~ or other ~~consideration that such Holder or the Attribution Parties may receive in the event~~ entity of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrantkind.

Appears in 1 contract

Sources: Securities Agreement (Cleveland Biolabs Inc)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect ~~the~~ any exercise ~~of any portion~~ of this Warrant, and the Holder of shall not be entitled to exercise this Warrant ~~shall not have the right to exercise any portion~~ for a number of ~~the Warrant~~Warrant Shares in excess of that number of Warrant Shares which, ~~and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that~~ upon giving effect or immediately prior to ~~or following~~ such exercise, would cause (i) the aggregate number of shares of Common Stock beneficially owned by the Holder, ~~together~~ its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the ~~Attribution Parties, beneficially owns or would beneficially own as determined in accordance with~~ Holder’s for purposes of Section 13(d) of the Exchange Act ~~and the rules promulgated thereunder, in excess of a percentage set at the discretion of each Holder between 0% and 19.99%~~ to exceed [4.99%][9.99%] (the “Maximum Percentage”) of the ~~Common Stock that would be~~ total number of issued and outstanding following such exercise. The initial Maximum Percentage is [•]%. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock ~~held and/or~~ of the Company following such exercise, or (ii) the combined voting power of the securities of the Company beneficially owned by the Holder ~~together with the Attribution Parties, shall include the number of shares~~ and its Affiliates and any other Persons whose beneficial ownership of Common Stock ~~held and/or beneficially owned by the Holder together~~ would be aggregated with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For Holder’s for purposes of ~~this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with~~ Section 13(d) of the Exchange Act ~~and~~ to exceed 9.99% of the ~~rules promulgated thereunder~~combined voting power of all of the securities of the Company then outstanding following such exercise. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Form 10-K, Q or Form 10-~~Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission~~K, as the case may be, filed with the Commission prior to the Exercise Date, (2y) a more recent public announcement by the Company or (3z) any other notice by the Company or ~~the Company’s transfer agent~~ its Transfer Agent setting forth the number of shares of Common Stock ~~outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~outstanding. ~~For any reason at any time, upon~~ Upon the written ~~or oral~~ request of the Holder, the Company shall within ~~one~~ three (3) Trading ~~Day~~ Days confirm ~~orally and~~ in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder ~~and the Attribution Parties~~ since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the such number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shareswas reported. By written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other ~~percentage~~ percentage, not in excess of 19.99% %, specified in such notice; provided that any such increase ~~in the Maximum Percentage~~ or decrease will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company. For purposes of this Section 11(a), the aggregate number of shares of Common Stock or voting securities beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act shall include the shares of Common Stock issuable upon the exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (x) exercise of the remaining unexercised and non-cancelled portion of this Warrant by the Holder and (y) exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including without limitation any securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including without limitation any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock), is subject to a limitation on conversion or exercise analogous to the limitation contained herein and ~~shall not negatively affect~~ is beneficially owned by the Holder or any ~~partial exercise effected prior to such change~~of its Affiliates and other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Underwriting Agreement (KalVista Pharmaceuticals, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the ~~Company shall not effect the exercise~~ number of ~~any portion~~ shares of ~~this Warrant, and~~ Common Stock that may be acquired by the Holder upon any exercise of this Warrant ~~shall not have the right to exercise any portion of the Warrant, and any such exercise~~ (or otherwise in respect hereof) shall be ~~null and void ab initio and treated as if the exercise had not been made,~~ limited to the extent ~~that immediately prior~~ necessary to or insure that, following such ~~exercise~~exercise (or other issuance), the ~~Holder, together~~ total number of shares of Common Stock then beneficially owned by such Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the ~~Attribution Parties~~Holder's for purposes of Section 13(d) of the Exchange Act, ~~beneficially owns or would beneficially own as~~ does not exceed 4.999% (the "5% Maximum Percentage") of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock issuable upon such exercise). For such purposes, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder~~, in excess of a percentage set at the discretion of each Holder between 0% and 19.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The ~~initial Maximum Percentage is [•]%. For purposes~~ Company shall, instead of ~~calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of~~ issuing shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise in excess of the ~~relevant Warrant with respect~~ limitation referred to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), suspend its obligation to ~~exceed~~ issue shares in excess of the ~~Maximum Percentage~~foregoing limitation until such time, ~~the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to~~ if any, as such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock ~~shall~~ may be ~~determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant~~issued in compliance with such limitation. Additionally, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a the Holder may waive the provisions of this ~~Warrant may from time to time~~ Section 11(a) or increase or decrease the 5% Maximum Percentage to any other percentage ~~not in excess of 19.99%~~ specified in such notice; ~~provided~~ provided, that (i) any such waiver or increase ~~in the Maximum Percentage~~ or decrease will not be effective until the 61st day after such notice is delivered to the ~~Company~~ Company, and ~~shall~~ (ii) any such waiver or increase or decrease will apply only to the Holder and not ~~negatively affect~~ to any ~~partial exercise effected prior to such change~~other holder of Warrants. (b) Notwithstanding anything to the contrary contained herein and regardless of whether the restrictions contained in Section 11(a) are waived as provided therein, the number of shares of Common Stock that may be acquired by the Holder upon any exercise of this Warrant (or otherwise in respect hereof) shall be limited to the extent necessary to insure that, following such exercise (or other issuance), the total number of shares of Common Stock then beneficially owned by such Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder's for purposes of Section 13(d) of the Exchange Act, does not exceed 9.999% (the " 10% Maximum Percentage") of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock issuable upon such exercise). For such purposes, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. The Company shall, instead of issuing shares of Common Stock in excess of the limitation referred to in this Section 11(b), suspend its obligation to issue shares in excess of the foregoing limitation until such time, if any, as such shares of Common Stock may be issued in compliance with such limitation. The provisions of this Section 11(b) may not be waived. (c) This Section 11 shall not restrict the number of shares of Common Stock which a Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section ~~9(c~~9(b) this Warrant or the amount of Distributed Property to which the Holder may become entitled pursuant to Section 9(d) of this Warrant. ~~For purposes of clarity~~In addition, ~~the shares of Common Stock issuable~~ this provision shall not in any way limit any other adjustment to be made pursuant to ~~the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of~~ Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant9 hereof.

Appears in 1 contract

Sources: Securities Agreement (Advaxis, Inc.)

Limitations on Exercise. ~~(a)~~ Notwithstanding anything to the contrary contained herein, the ~~Company shall not effect the exercise~~ number of ~~any portion of this Warrant, and~~ Warrant Shares that may be acquired by the Holder upon any exercise of this Warrant ~~shall not have the right to exercise any portion of the Warrant, and any such exercise~~ (or otherwise in respect hereof) shall be ~~null and void ab initio and treated as if the exercise had not been made,~~ limited to the extent ~~that immediately~~ necessary to ensure that, prior to or following such ~~exercise~~exercise (or other issuance), the ~~Holder, together with~~ total number of shares of Common Stock then beneficially owned by the Holder and its Attribution Parties, ~~beneficially owns or would beneficially own~~ as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated ~~thereunder, in excess of a percentage set at the discretion of each Holder between 0% and 19.99%~~ thereunder does not exceed [4.99%][9.99%][19.99%] (the “Maximum Percentage”) of the ~~Common Stock that would be~~ total number of then issued and outstanding ~~following~~ shares of Common Stock (including for such purpose the shares of Common Stock issuable upon such exercise~~. The initial Maximum Percentage~~ ) or any other class of equity security (other than an exempted security) of the Company that is ~~[•]%~~registered pursuant to Section 12 of the Exchange Act. For purposes of ~~calculating beneficial ownership for determining whether~~ the ~~Maximum Percentage is or will be exceeded~~foregoing sentence, the aggregate number of shares of Common Stock ~~held and/or~~ beneficially owned by the ~~Holder~~ Holder, together with ~~the~~ its Attribution Parties, shall include the number of shares of Common Stock ~~held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock~~ issuable upon exercise of ~~the relevant~~ this Warrant with respect to which the determination of such sentence is being ~~made~~ made, but shall exclude ~~the number of~~ shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised portion of this Warrant ~~held and/or~~ beneficially owned by the ~~Holder or the~~ Holder, together with its Attribution ~~Parties~~ Parties, and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company ~~held and/or~~ beneficially owned by ~~such Holder or any~~ the Holder, together with its Attribution ~~Party~~ Parties (including, without limitation, any convertible ~~notes,~~ notes or convertible stock or warrants) ), that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this ~~Paragraph 11(a)~~paragraph, beneficial ownership ~~of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence,~~ shall be calculated ~~and determined~~ in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this ~~Warrant~~Section 11, in determining the number of outstanding shares of Common Stock, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Form 10-KQ, Form 10-QK, ~~Current Report on Form 8-K~~ or other public filing ~~with~~ by the ~~Securities and Exchange Commission~~Company, as the case may be, (2y) a more recent public announcement by the Company or (3z) any other written notice by the Company or ~~the Company’s~~ its transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). ~~For any reason at any time, upon~~ Upon the written ~~or oral~~ request of the Holder, the Company shall within one (1) Trading ~~Day~~ Days confirm ~~orally and~~ in writing ~~or by electronic mail~~ to ~~the~~ such Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall ~~(i)~~ notify the Holder in writing of the number of shares of Common Stock then ~~outstanding and~~outstanding; provided, that to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section ~~11(a)~~11, to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) ~~and (ii)~~ and, as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; ~~provided~~ provided, that (i) any such increase ~~in the Maximum Percentage~~ will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the ~~Company~~ Company, and (ii) any such increase or decrease will apply only to the Holder and not to any other holder of Warrants. The provisions of this paragraph shall ~~not negatively affect~~ be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to correct this paragraph (or any ~~partial exercise effected prior~~ portion hereof) which may be defective or inconsistent with the intended beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such ~~change. (b) This Section 11 shall not restrict the~~ limitation. Any purported delivery of any number of shares of Common Stock ~~which a Holder~~ or ~~the Attribution Parties may receive or beneficially own in order to determine the amount of securities or~~ any other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms security upon exercise of this Warrant shall be void and have no effect to the extent, but only to the extent, that before or after such delivery, the exercising Holder, together with its Attribution Parties, would have beneficial ownership in excess of the Maximum ~~Percentage shall not~~ Percentage. For purposes hereof, “Attribution Parties” means, collectively, the following Persons and entities: (i) any direct or indirect Affiliates of the Holder, (ii) any Person acting or who reasonably could be deemed to be ~~beneficially owned by~~ acting as a group together with the Holder or any of the foregoing and (iii) any other Persons whose beneficial ownership of Common Stock reasonably could be aggregated with the Holder’s and the other Attribution Parties ~~for any purpose including~~ for purposes of Section 13(d) ~~of the Exchange Act and the rules promulgated thereunder~~ or Section 16 of the Exchange Act (for clarity, the purpose of the foregoing is to subject collectively the Holder and all other Attribution Parties to the ~~rules~~ Maximum Percentage). (1) promulgated thereunder~~, including Rule 16a-1(a)(1)~~. No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Pre Funded Warrant to Purchase Common Stock (Dianthus Therapeutics, Inc. /DE/)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of ~~this~~ the Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~4.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of ~~this~~ the Warrant, in determining the number of outstanding shares of Common Stock, a Holder of ~~this~~ the Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one ~~Trading~~ (1) Business Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of ~~this~~ the Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 11(a) to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 11(a) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Underwriting Agreement (Monte Rosa Therapeutics, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of ~~this~~ the Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99%~~ [4.99%] (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of ~~this~~ the Warrant, in determining the number of outstanding shares of Common Stock, a Holder of ~~this~~ the Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written ~~or oral~~ request of the Holder, the Company shall within one ~~Trading~~ (1) Business Day confirm ~~orally and~~ in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of ~~this~~ the Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section ~~9(c~~9(d) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act ~~and the rules~~ Rule 16a-1(a) (1) promulgated thereunder~~, including Rule 16a-1(a)(1)~~. No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 11(a) to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 11(a) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Security Agreement (VYNE Therapeutics Inc.)

Limitations on Exercise. ~~(a) Notwithstanding anything to the contrary contained herein, the~~ The Company shall not effect the exercise of any ~~portion of this Warrant~~Rights, and the Holder ~~of this Warrant~~ shall not have the right to exercise any portion of any Rights pursuant to the ~~Warrant,~~ terms and conditions of this Agreement and any such exercise shall be null and void ~~ab initio~~ and treated as if ~~the exercise had not been~~ never made, to the extent that ~~immediately prior~~ after giving effect to ~~or following~~ such exercise, the ~~Holder,~~ Holder together with the other Attribution ~~Parties, beneficially owns or~~ Parties collectively would beneficially own ~~as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder,~~ in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~9.99% (the “~~Maximum Percentage~~Beneficial Ownership Limitation”) of the shares of Common Stock ~~that would be issued and~~ outstanding ~~following~~ immediately after giving effect to such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of ~~calculating beneficial ownership for determining whether~~ the ~~Maximum Percentage is or will be exceeded~~foregoing sentence, the aggregate number of shares of Common Stock ~~held and/or~~ beneficially owned by the Holder ~~together with~~ and the other Attribution ~~Parties,~~ Parties (as defined in the June Note) shall include the number of shares of Common Stock held ~~and/or beneficially owned~~ by the Holder ~~together with the~~ and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the ~~relevant Warrant~~ Rights issued hereunder with respect to which the determination of such sentence is being ~~made~~ made, but shall exclude ~~the number of~~ shares of Common Stock which would be issuable upon (iA) exercise of the remaining, ~~unexercised Warrant held and/or~~ nonexercised portion of the Rights beneficially owned by the Holder or any of the other Attribution Parties and (iiB) exercise or conversion of the unexercised or ~~unconverted~~ nonconverted portion of any other securities of the Company ~~held and/or beneficially owned by such Holder or any Attribution Party~~ (including, without limitation, any convertible ~~notes,~~ notes or convertible preferred stock or warrants) ~~that are~~ beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained ~~herein~~in this Section 11.8. For purposes of this ~~Paragraph 11(a)~~Section 11.8, beneficial ownership ~~of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence,~~ shall be calculated ~~and determined~~ in accordance with Section 13(d) of the ~~Exchange~~ 1934 Act ~~and~~ (as defined in the ~~rules promulgated thereunder~~June Note). For purposes of ~~this Warrant, in~~ determining the number of outstanding shares of Common ~~Stock~~Stock the Holder may acquire upon the exercise of the Rights without exceeding the Beneficial Ownership Limitation, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the ~~Securities and Exchange Commission~~SEC, as the case may be, (2y) a more recent public announcement by the Company or (3z) any other written notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent, if any, setting forth the number of shares of Common Stock outstanding (~~such issued and outstanding shares,~~ the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives ~~an Exercise~~ a Notice of Issuance from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall ~~(i)~~ notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such ~~Exercise~~ Notice of Issuance would otherwise cause the Holder~~’s, together with the Attribution Parties’,~~ ’s beneficial ownership, as determined pursuant to this Section ~~11(a)~~11.8, to exceed the ~~Maximum Percentage~~Beneficial Ownership Limitation, the Holder must notify the Company of a reduced number of ~~Warrant Shares~~ shares of Common Stock to be purchased pursuant to such ~~Exercise~~ Notice of Issuance. For any reason at any time, upon the written or oral request of the Holder, the Company shall within one (1) Business Day confirm orally and in writing or by electronic mail to the Holder the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Sharesof Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including ~~this Warrant~~the Rights, by the Holder and ~~the~~ any other Attribution ~~Parties~~ Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of shares of Common Stock to the Holder upon exercise of ~~this Warrant~~ the Rights results in the ~~Holder, together with~~ Holder and the other Attribution ~~Parties,~~ Parties being deemed to beneficially own, in the aggregate, more than the ~~Maximum Percentage~~ Beneficial Ownership Limitation of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the ~~Exchange~~ 1934 Act), the number of shares so issued by which the Holder~~’s, together with~~ ’s and the other Attribution Parties’, ’ aggregate beneficial ownership exceeds the ~~Maximum Percentage~~ Beneficial Ownership Limitation (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder ~~and/or the Attribution Parties~~ shall not have the power to vote or to transfer the Excess Shares. ~~As soon as reasonably practicable after the issuance~~ Upon delivery of ~~the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By~~ a written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase (with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease the ~~Maximum Percentage~~ Beneficial Ownership Limitation to any other percentage not in excess of ~~19.99~~9.99% as specified in such notice; provided that (i) any such increase in the ~~Maximum Percentage~~ Beneficial Ownership Limitation will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company and ~~shall not negatively affect~~ (ii) any ~~partial exercise effected prior~~ such increase or decrease will apply only to ~~such change. (b) This Section 11 shall not restrict~~ the ~~number of shares of Common Stock which a~~ Holder or and the other Attribution Parties ~~may receive or beneficially own in order~~ and not to ~~determine~~ any other holder of Rights that is not an Attribution Party of the ~~amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant~~Holder. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of ~~this Warrant~~ the Rights hereunder in excess of the ~~Maximum Percentage~~ Beneficial Ownership Limitation shall not be deemed to be beneficially owned by the Holder ~~or the Attribution Parties~~ for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the ~~Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1)~~1934 Act. No prior inability to exercise ~~this Warrant~~ any Rights pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 11.8 to the extent necessary to correct this paragraph (or any portion of this ~~paragraph~~ paragraph) which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 11.8 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of ~~this Warrant~~Rights.

Appears in 1 contract

Sources: Amendment and Exchange Agreement (Helios & Matheson Analytics Inc.)

Limitations on Exercise. (a) ~~Notwithstanding~~ Except as specified in Section 9(b), notwithstanding anything to the contrary contained herein, the ~~Company shall not effect~~ number of Warrant Shares that may be acquired by the Holder upon any exercise of ~~any portion of this Warrant, and the Holder of this Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise~~ these Warrants (or otherwise in respect hereof) shall be ~~null and void ab initio and treated as if the exercise had not been made,~~ limited to the extent ~~that immediately prior~~ necessary to or insure that, following such ~~exercise~~exercise (or other issuance), the ~~Holder, together~~ total number of shares of Common Stock then beneficially owned by such Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the ~~Attribution Parties~~Holder’s for purposes of Section 13(d) of the Exchange Act, ~~beneficially owns or would beneficially own as~~ does not exceed 9.99% of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock issuable upon such exercise). For such purposes, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, . Notwithstanding anything to the contrary contained in excess of a percentage set at the discretion of each Holder between 0% and 19.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise. The initial Maximum Percentage is [•]%. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant this Warrant ~~with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon~~ Agreement: (i) ~~exercise~~ no term of this Section 9 may be waived by any party, nor may any term of this Section 9 be amended such that the ~~remaining, unexercised Warrant held and/or beneficially owned by the Holder~~ threshold percentage of ownership as set forth above would be directly or ~~the Attribution Parties and~~ indirectly increased; (ii) ~~exercise~~ this restriction runs with these Warrants and may not be modified or ~~conversion of the unexercised~~ waived by any subsequent Holder hereof; and (iii) any attempted waiver, modification or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes amendment of this ~~Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence,~~ Section 9 will be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void ~~and shall be cancelled~~ ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this ~~paragraph~~ Section 9 shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not ~~be waived and shall~~ apply to any or more of the following periods: (i) while there is an outstanding tender offer for any or all of the shares of the Company’s Common Stock, (ii) after the Holder has received a ~~successor holder~~ duly issued Exercise Demand for the Warrant Shares of this Warrant, but not after such Exercise Demand has been withdrawn or canceled pursuant to the provisions of Section 3(l)(ii), or (iii) at any time which is thirty (30) days or less before the Expiration Date.

Appears in 1 contract

Sources: Securities Agreement (SPYR, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99%~~ [4.99][9.99]% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (Maze Therapeutics, Inc.)

Limitations on Exercise. ~~(a)~~ Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of ~~this~~ a Five-Year Warrant, and the Holder ~~of this Warrant~~ shall not have the right to exercise any portion of ~~the~~ a Five-Year Warrant, pursuant to the terms and conditions of the Five-Year Warrant and any such exercise shall be null and void ~~ab initio~~ and treated as if ~~the exercise had not been~~ never made, to the extent that ~~immediately prior~~ after giving effect to ~~or following~~ such exercise, the ~~Holder,~~ Holder together with the other Attribution ~~Parties, beneficially owns or~~ Parties collectively would beneficially own ~~as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder,~~ in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99%~~ [4.99][9.99%] (the “Maximum Percentage”) of the number of shares of Common Stock ~~that would be issued and~~ outstanding ~~following~~ immediately after giving effect to such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of ~~calculating beneficial ownership for determining whether~~ the ~~Maximum Percentage is or will be exceeded~~foregoing sentence, the aggregate number of shares of Common Stock ~~held and/or~~ beneficially owned by the Holder ~~together with~~ and the other Attribution ~~Parties,~~ Parties shall include the number of shares of Common Stock held ~~and/or beneficially owned~~ by the Holder ~~together with the~~ and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the ~~relevant Warrant~~ Five-Year Warrants with respect to which the determination of such sentence is being ~~made~~ made, but shall exclude the number of shares of Common Stock ~~which~~ that would be issuable upon (iA) exercise of the remaining, unexercised ~~Warrant held and/or~~ portion of the Five-Year Warrants beneficially owned by the Holder or any of the other Attribution Parties and (iiB) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company ~~held and/or beneficially owned by such Holder or any Attribution Party~~ (including, without limitation, any convertible ~~notes,~~ notes or convertible preferred stock or warrants) ~~that are~~ beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained ~~herein~~in this Section 3.3.10. For purposes of this ~~Paragraph 11(a)~~Section 3.3.10, beneficial ownership ~~of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence,~~ shall be calculated ~~and determined~~ in accordance with Section 13(d) of the ~~Exchange Act and the rules promulgated thereunder~~1934 Act. For purposes of ~~this Warrant~~the Five-Year Warrants, in determining the number of outstanding shares of Common ~~Stock~~Stock the Holder may acquire upon the exercise of the Five-Year Warrants without exceeding the Maximum Percentage, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Q and Current ~~Report~~ Reports on Form 8-K or other public filing with the Securities and Exchange ~~Commission~~Commission (the “SEC”), as the case may be, (2y) a more recent public announcement by the Company or (3z) any other written notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent setting forth the number of shares of Common Stock outstanding (~~such issued and outstanding shares,~~ the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder~~’s, together with the Attribution Parties’,~~ ’s beneficial ownership, as determined pursuant to this Section ~~11(a)~~3.3.10, to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Five-Year Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. For any reason at any time, upon the written or oral request of the Holder, the Company shall within one (1) Business Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including ~~this Warrant~~the Five-Year Warrants, by the Holder and ~~the~~ any other Attribution ~~Parties~~ Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of ~~this Warrant~~ the Five-Year Warrants results in the ~~Holder, together with~~ Holder and the other Attribution ~~Parties,~~ Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the ~~Exchange~~ 1934 Act), the number of shares so issued by which the Holder~~’s, together with~~ ’s and the other Attribution Parties’, ’ aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder ~~and/or the Attribution Parties~~ shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By Upon delivery of a written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of ~~19.99~~9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company and ~~shall not negatively affect~~ (ii) any ~~partial exercise effected prior~~ such increase or decrease will apply only to ~~such change. (b) This Section 11 shall not restrict~~ the ~~number of shares of Common Stock which a~~ Holder or and the other Attribution Parties ~~may receive or beneficially own in order~~ and not to ~~determine~~ any other holder of Five-Year Warrants that is not an Attribution Party of the ~~amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant~~Holder. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of ~~this Warrant~~ the Five-Year Warrants in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder ~~or the Attribution Parties~~ for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the ~~Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1)~~1934 Act. No prior inability to exercise ~~this Warrant~~ the Five-Year Warrants pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 3.3.10 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 3.3.10 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of ~~this Warrant~~the Five-Year Warrants.” b. Section 1(f) of the Form of Certificated Warrant Agreement included as Exhibit D is amended and restated as follows: “[Reserved].”

Appears in 1 contract

Sources: Warrant Agreement (Outlook Therapeutics, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not ~~have the right to~~ exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99~~9.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm ~~orally and~~ in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) or that no reduction is necessary in order to receive shares in compliance with the Maximum Percentage, and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares (if any) and to issue the shares to the Holder (reduced by the Reduction Shares, if applicable). In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess ~~Shares~~Shares and the Holder shall return such Excess Shares (if in its possession) to the Company. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage ~~not~~ specified in such notice, provided however, that (1) in no case shall the percentage specified be in excess of 19.99% ~~specified in such notice; provided that~~ and (2) any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall ~~not~~ be deemed to not be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (Lexeo Therapeutics, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect ~~the~~ any exercise ~~of any portion~~ of this Warrant, and the Holder of shall not be entitled to exercise this Warrant ~~shall not have the right to exercise any portion~~ for a number of ~~the Warrant~~Warrant Shares in excess of that number of Warrant Shares which, ~~and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that~~ upon giving effect or immediately prior to ~~or following~~ such exercise, would cause (i) the aggregate number of shares of Common Stock beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder~~, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with~~ ’s for purposes of Section 13(d) of the Exchange Act ~~and the rules promulgated thereunder, in excess~~ (such as any other members of a ~~percentage set at the discretion of each Holder between 0% and 19.99~~Section 13(d) “group”), to exceed 4.99% (the “Maximum Percentage”) of the ~~Common Stock that would be~~ total number of issued and outstanding following such exercise. The initial Maximum Percentage is [•]%. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock ~~held and/or~~ of the Company following such exercise, or (ii) the combined voting power of the securities of the Company beneficially owned by the Holder ~~together with the Attribution Parties, shall include the number of shares~~ and its Affiliates and any other Persons whose beneficial ownership of Common Stock ~~held and/or beneficially owned by the Holder together~~ would be aggregated with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For Holder’s for purposes of ~~this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with~~ Section 13(d) of the Exchange Act ~~and~~ (such as any other members of a Section 13(d) “group”) to exceed 4.99% of the ~~rules promulgated thereunder~~combined voting power of all of the securities of the Company then outstanding following such exercise. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Form 10-K, Q or Form 10-~~Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission~~K, as the case may be, filed with the Commission prior to the date of exercise, (2y) a more recent public announcement by the ~~Company~~ Company, or (3z) any other written notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent setting forth the number of shares of Common Stock ~~outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~outstanding. ~~For any reason at any time, upon~~ Upon the written ~~or oral~~ request of the Holder, the Company shall within ~~one~~ three (3) Trading ~~Day~~ Days following receipt of the written request confirm ~~orally and~~ in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder ~~and the Attribution Parties~~ since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the such number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shareswas reported. By written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any such increase ~~in the Maximum Percentage~~ will not be effective until the ~~61st~~ sixty-first (61st) day after such written notice is delivered to the Company. For purposes of this Section 11(a), the aggregate number of shares of Common Stock or voting securities beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act (such as any other members of a Section 13(d) “group”) shall include the shares of Common Stock issuable upon the exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (1) exercise of the remaining unexercised and non-cancelled portion of this Warrant by the Holder and (2) exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including without limitation any securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including without limitation any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock), is subject to a limitation on conversion or exercise analogous to the limitation contained herein and ~~shall not negatively affect~~ is beneficially owned by the Holder or any ~~partial exercise effected prior to~~ of its Affiliates and other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act (such ~~change~~as any other members of a Section 13(d) “group”). (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Securities Purchase Agreement (Leap Therapeutics, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary ~~contained~~ herein, unless and until the Stockholder Approval is obtained, the Company shall not effect ~~the~~ any exercise ~~of any portion~~ of this Warrant, and the ~~Holder of~~ holder shall not be entitled to exercise this Warrant ~~shall not have the right to exercise any portion~~ for a number of ~~the Warrant~~Warrant Shares in excess of that number of Warrant Shares which, ~~and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that~~ upon giving effect or immediately prior to ~~or following~~ such exercise, would cause (i) the aggregate number of shares of Common Stock beneficially owned by the Holder, ~~together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with~~ its Affiliates and any Persons who are members of a Section 13(d) ~~of the Exchange Act and the rules promulgated thereunder, in excess of a percentage set at the discretion of each~~ group with such Holder ~~between 0% and 19.99%~~ or its Affiliates to exceed [4.99%/9.99%/19.99%] (the “Maximum Percentage”) of the total number of issued and outstanding shares of Common Stock ~~that would be issued~~ of the Company following such exercise, or (ii) the combined voting power of the securities of the Company beneficially owned by the Holder and its Affiliates and any other Persons who are members of a Section 13(d) group with such Holder or its Affiliates to exceed the Maximum Percentage of the combined voting power of all of the securities of the Company then outstanding following such exercise. The initial Maximum Percentage is [•]%. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this ~~Paragraph 11(a)~~paragraph, beneficial ownership and whether a holder is a member of ~~the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence,~~ a Section 13(d) group shall be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a the Holder ~~of this Warrant~~ may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company’s most recent Quarterly Report on Form 10-Q or Annual Report on Form 10-K~~, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission~~, as the case may be, filed with the Commission prior to the date hereof, (2y) a more recent public announcement by the Company or (3z) any other notice by the Company or the ~~Company’s transfer agent~~ Transfer Agent setting forth the number of shares of Common Stock ~~outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”)~~outstanding. ~~For any reason at any time, upon~~ Upon the written ~~or oral~~ request of the Holder, the Company shall within ~~one~~ three (3) Trading ~~Day~~ Days confirm ~~orally and~~ in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder ~~and the Attribution Parties~~ since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the such number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shareswas reported. By written notice to the Company, a the Holder ~~of this Warrant~~ may from time to time increase or decrease the Maximum Percentage to any other percentage specified not in excess of 19.99% specified in such notice; provided that any such increase ~~in the Maximum Percentage~~ will not be effective until the ~~61st~~ sixty-first (61st) day after such notice is delivered to the Company. For purposes of this Section 11(a), the aggregate number of shares of Common Stock or voting securities beneficially owned by the Holder and its Affiliates and any other Persons who are members of a Section 13(d) group with such Holder or its Affiliates shall include the shares of Common Stock issuable upon: (x) the exercise of this Warrant with respect to which such determination is being made plus the remaining unexercised and non-cancelled portion of this Warrant but taking into account the limitations on exercise contained herein, but shall exclude the number of shares of Common Stock which would otherwise be issuable upon exercise of the remaining unexercised and non-cancelled portion of this Warrant but for the limitations on exercise contained herein; and (y) the exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company beneficially owned by the Holder or any of its Affiliates and other Persons who are members of a Section 13(d) group with such Holder or its Affiliates that do not have voting power (including without limitation any securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including without limitation any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock), but shall ~~not negatively affect~~ exclude any ~~partial~~ such securities subject to any further limitation on conversion or exercise ~~effected prior~~ analogous to ~~such change~~the limitation contained herein. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder ~~or the Attribution Parties~~ may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder ~~or the Attribution Parties~~ may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Security Agreement (Rezolute, Inc.)

Limitations on Exercise. (a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of ~~a percentage set at the discretion of each Holder between 0% and 19.99%~~ [4.99][9.99] (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise~~. The initial Maximum Percentage is [•]%~~. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one ~~Trading Day~~ business day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change. (b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

Appears in 1 contract

Sources: Warrant Agreement (X4 Pharmaceuticals, Inc)

Common use of Limitations on Exercise Clause in Contracts