Common use of Maximum Exercise Clause in Contracts

Maximum Exercise. 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 other security of the Holder subject to a limitation on conversion analogous to the limitations contained herein) and (2) the number of shares of Common Stock issuable upon the exercise of the portion of this Warrant with respect to which the determination of this proviso is being made, would result in beneficial ownership by the Holder and its Affiliates of any amount greater than 9.99% of the then outstanding shares of Common Stock (whether or not, at the time of such exercise, the 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 Regulations 13D-G thereunder, except as otherwise provided in clause (1) of such sentence. For any reason at any time, upon written or oral request of the Holder, the Company shall within one (1) business day confirm orally and in writing to the Holder the number of shares of Common Stock outstanding as of any given date. The limitations set forth herein (x) may be waived by the Holder upon provision of no less than sixty-one (61) days prior written notice to the Company and (y) shall automatically become null and void following notice to the Company upon the occurrence and during the continuance of an Event of Default (as defined in the Note).

Maximum Exercise. 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 other security of the Holder subject to a limitation on conversion analogous to the limitations contained herein) and (2) the number of shares of Common Stock issuable upon the exercise of the portion of this Warrant with respect to which the determination of this proviso is being made, would result in beneficial ownership by the Holder and its Affiliates of any amount greater than 9.994.99% of the then outstanding shares of Common Stock (whether or not, at the time of such exercise, the Holder and its Affiliates beneficially own more than 9.994.99% 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 proviso to 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 Regulations 13D-G thereunder, except as otherwise provided in clause (1) of such sentence. For any reason at any time, upon written or oral request of the Holder, the Company shall within one (1) business day confirm orally and in writing to the Holder the number of shares of Common Stock outstanding as of any given dateproviso. The limitations set forth herein (x) may be waived by the Holder upon provision of no less than sixty-one (61) days prior written notice to the Company and (y) shall automatically become null and void following notice to the Company upon the occurrence and during the continuance of an Event of Default (as defined in the NoteNote referred to in the Purchase Agreement dated as of the date hereof among the Holder and the Company (as amended, modified, restated and/or supplemented from time to time, the "Purchase Agreement")).

Maximum Exercise. (a) Notwithstanding anything herein to the contrarycontrary contained herein, 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 that may be acquired by the Holder and its Affiliates Subscriber upon exercise of this Warrant (other than shares of Common Stock which may or otherwise in respect hereof) shall be deemed beneficially owned through the ownership of the unexercised portion of the Warrant or the unexercised or unconverted portion of any other security of the Holder subject to a limitation on conversion analogous limited to the limitations contained herein) and extent necessary to insure that, following such exercise (2) or other issuance), the total number of shares of Common Stock issuable upon then beneficially owned by such Subscriber and its affiliates and any other persons whose beneficial ownership of Common Stock would be aggregated with the exercise Subscriber's for purposes of Section 13(d) of the portion of this Warrant with respect to which the determination of this proviso is being made1934 Act, would result in beneficial ownership by the Holder and its Affiliates of any amount greater than 9.99does not exceed 4.999% of the then total number of issued and outstanding shares of Common Stock (whether or not, at including for such purpose the time of such exercise, the Holder and its Affiliates beneficially own more than 9.99% of the then outstanding shares of Common StockStock issuable upon such exercise). 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 For such terms are used in and construed under Rule 144 under the Securities Act. For purposes of the second preceding sentencepurposes, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange 1934 Act of 1934, as amended, and Regulations 13D-G the rules and regulations promulgated thereunder, except as otherwise provided in clause (1) of such sentence. For any reason at any time, upon By written or oral request of the Holder, the Company shall within one (1) business day confirm orally and in writing notice to the Holder Company, a Subscriber may waive the provisions of this Section 10(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 Subscriber. (b) Notwithstanding anything to the contrary contained herein, the number of shares of Common Stock that may be acquired by the Subscriber upon 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 Subscriber and its affiliates and any other persons whose beneficial ownership of Common Stock would be aggregated with the Subscriber's for purposes of Section 13(d) of the 1934 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 1934 Act and the rules and regulations promulgated thereunder. This provision may not be waived. (c) Notwithstanding anything to the contrary in this Warrant, if the Company has not previously obtained Shareholder Approval (as defined below), then the Company may not issue shares of Common Stock in excess of the Issuable Maximum upon exercises of this Warrant at an exercise price which is less than the closing bid price on the trading day immediately preceding the Closing Date or date of the Subscription Agreement, whichever is higher (the "Threshold Price"). The "Issuable Maximum" means, as of any given date, a number of shares of Common Stock equal to 15,421,757, less such number of shares of Common Stock as have been issued at a price below the Threshold Price upon (1) conversion of Notes, or (2) in payment of interest thereunder, or (3) upon exercise of the Warrants, or (4) upon operation of any rights of first refusal under the Agreement. The limitations set forth herein Each Subscriber shall be entitled to a portion of the Issuable Maximum equal to the quotient obtained by dividing: (x) may be waived the principal amount of Notes issued and sold to such Subscriber on the Closing Date by the Holder upon provision of no less than sixty-one (61) days prior written notice to the Company and (y) the aggregate principal amount of all Notes issued and sold by the Company on the Closing Date. If any Subscriber shall automatically become null and void following notice no longer hold Notes, then such Subscriber's remaining portion of the Issuable Maximum shall be allocated pro-rata among the remaining Subscribers, giving effect to the Company upon Company's desire to allocate this limitation among the occurrence and during class of securities known as the continuance of an Event of Default Notes. If on any Conversion Date (as defined in the NoteNotes), or at such time as a Subscriber shall notify the Company that the condition in (A) following this clause shall be in effect: (A) the aggregate number of shares of Common Stock that would then be issuable upon exercise in full of all then outstanding Warrants would exceed the Issuable Maximum on such date, and (B) the Company shall not have previously obtained the vote of shareholders, as may be required by the applicable rules and regulations of the American Stock Exchange (or any successor entity or any other trading market on which the Company's securities then trade), applicable to approve the issuance of shares of Common Stock in excess of the Issuable Maximum pursuant to the terms hereof (the "Shareholder Approval"), then, the Company shall issue to the Subscribers a number of shares of Common Stock equal to the Issuable Maximum and, with respect to the remainder of the aggregate Warrants then held by the Subscribers for which an exercise would result in an issuance of shares of Common Stock in excess of the Issuable Maximum, the Company must use its best efforts to seek and obtain Shareholder Approval as soon as possible, but in any event not later than the 90th day following such date of exercise or the date of such request. The Company and the Subscriber understand and agree that Warrant Shares issued to and then held by the Subscriber as a result of exercises of Warrants shall not be entitled to cast votes on any resolution to obtain Shareholder Approval pursuant hereto.

Maximum Exercise. (a) Notwithstanding anything herein to the contrarycontrary contained herein, 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 that may be acquired by the Holder and its Affiliates Subscriber upon exercise of this Warrant (other than shares of Common Stock which may or otherwise in respect hereof) shall be deemed beneficially owned through the ownership of the unexercised portion of the Warrant or the unexercised or unconverted portion of any other security of the Holder subject to a limitation on conversion analogous limited to the limitations contained herein) and extent necessary to insure that, following such exercise (2) or other issuance), the total number of shares of Common Stock issuable upon then beneficially owned by such Subscriber and its affiliates and any other persons whose beneficial ownership of Common Stock would be aggregated with the exercise Subscriber's for purposes of Section 13(d) of the portion of this Warrant with respect to which the determination of this proviso is being made1934 Act, would result in beneficial ownership by the Holder and its Affiliates of any amount greater than 9.99does not exceed 4.999% of the then total number of issued and outstanding shares of Common Stock (whether or not, at including for such purpose the time of such exercise, the Holder and its Affiliates beneficially own more than 9.99% of the then outstanding shares of Common StockStock issuable upon such exercise). 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 For such terms are used in and construed under Rule 144 under the Securities Act. For purposes of the second preceding sentencepurposes, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange 1934 Act of 1934, as amended, and Regulations 13D-G the rules and regulations promulgated thereunder, except as otherwise provided in clause (1) of such sentence. For any reason at any time, upon By written or oral request of the Holder, the Company shall within one (1) business day confirm orally and in writing notice to the Holder Company, a Subscriber may waive the provisions of this Section 10(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 Subscriber. (b) Notwithstanding anything to the contrary contained herein, the number of shares of Common Stock outstanding as of any given date. The limitations set forth herein (x) that may be waived acquired by the Holder Subscriber upon provision exercise of no less than sixty-one this Warrant (61or otherwise in respect hereof) days prior written notice shall be limited to the Company extent necessary to insure that, following such exercise (or other issuance), the total number of shares of Common Stock then beneficially owned by such Subscriber and its affiliates and any other persons whose beneficial ownership of Common Stock would be aggregated with the Subscriber's for purposes of Section 13(d) of the 1934 Act, does not exceed 9.999% of the total number of issued and outstanding shares of Common Stock (yincluding 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) shall automatically become null of the 1934 Act and void following notice to the Company upon the occurrence rules and during the continuance of an Event of Default (as defined in the Note)regulations promulgated thereunder. This provision may not be waived.

Maximum Exercise. 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 number of this Warrant upon exercise of which the sum of (1) Shares, which, when added to 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 other security of the Holder subject to a limitation on conversion analogous to the limitations contained herein) and (2) the number of shares of Common Stock issuable upon the exercise of the portion of this Warrant with respect to which the determination of this proviso is being made), would result in beneficial ownership by the Holder and its Affiliates of any amount of shares of Common Stock greater than 9.9919.9% of the then outstanding shares of Common Stock (whether or notthe “Maximum Common Stock Issuance”), at unless the time issuance of such exerciseWarrant Shares hereunder in excess of the Maximum Common Stock Issuance shall first be approved by the Company’s stockholders; provided, that, for this purpose only, the Holder and its Affiliates beneficially own more than 9.99% of the then outstanding agrees that it shall not be entitled to vote any shares of Common StockStock owned by the Holder, and that such restriction on voting shall be interpreted to apply to the fullest extent necessary to comply with the rules of the NASDAQ Stock Market (and any published or written interpretations thereof by the Nasdaq Stock Market or its staff). 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 Regulations 13D-G thereunder, except as otherwise provided in clause (1) of such sentence. For any reason at any time, upon written or oral request of the Holder, the Company shall within one (1) business day confirm orally and in writing to the Holder the number of shares of Common Stock outstanding as of any given date. The limitations set forth herein (x) may be waived by the Holder upon provision of no less than sixty-one (61) days prior written notice to the Company and (y) shall automatically become null and void following notice to the Company upon the occurrence and during the continuance of an Event of Default (as defined in the Note).

Maximum Exercise. Notwithstanding anything herein to the contrary, in no event shall the Holder and other Holders of Class A Warrants be permitted to exercise Warrants in excess of each such Holder’s Pro Rata Portion of Warrant Shares which a number of whole Warrant Shares that would exceed 19.99% of the Company’s Common Stock outstanding as of the Issue Date (which 19.99% is agreed to be equal to but not less than 3,945,507 shares of Common Stock) (the “Cap”). In addition, the Holder shall not be entitled to exercise any portion of this Warrant on an exercise date in connection with that number of Shares of Common Stock which would be in excess of that portion of this Warrant upon exercise of which the sum of (1i) 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 other security of the Holder subject to a limitation affiliates on conversion analogous to the limitations contained herein) an exercise date, and (2ii) the number of shares of Common Stock issuable upon the exercise of the portion of this Warrant with respect to which the determination of this proviso limitation is being mademade on an exercise date, and (iii) the number of shares of Common Stock issuable upon the conversion of convertible notes issued by the Company and owned by the Holder, with respect to which the determination of this limitation is being made on an exercise date, which would result in beneficial ownership by the Holder and its Affiliates affiliates of any amount greater more than 9.994.99% of the then outstanding shares of Common Stock (whether or not, at the time of on such exercise, the 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 Actdate. For the purposes of the second immediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and Regulations 13D-G Regulation 13d-3 thereunder, except as otherwise provided in clause (1) of such sentence. For any reason at any time, upon written or oral request of Subject to the Holderforegoing, the Company Holder shall within one (1) business day confirm orally and not be limited to aggregate exercises which would result in writing to the Holder issuance of more than 4.99% but less than the number of shares of Common Stock outstanding as of any given dateCap. The limitations set forth herein 4.99% limitation (xbut not the Cap) described in this paragraph may be waived by the Holder increased upon provision of no less than sixty-one (61) days prior written notice from the Holder to the Company to up to 9.99%. The Holder may allocate which of the equity of the Company deemed beneficially owned by the Subscriber shall be included in the 4.99% (or if waived, 9.99%) amount described above and (y) which shall automatically become null and void following notice be allocated to the Company upon the occurrence and during the continuance of an Event of Default excess above 4.99% (as defined in the Note)or if waived 9.99%) provided such allocations are consistent with applicable law.

Maximum Exercise. (a) Notwithstanding anything herein to the contrarycontrary contained herein, 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 that may be acquired by the Holder and its Affiliates upon exercise of this Warrant (other than shares of Common Stock which may or otherwise in respect hereof) shall be deemed beneficially owned through the ownership of the unexercised portion of the Warrant or the unexercised or unconverted portion of any other security of the Holder subject to a limitation on conversion analogous limited to the limitations contained herein) and extent necessary to insure that, following such exercise (2) or other issuance), the total number of shares of Common Stock issuable upon the exercise of the portion of this Warrant with respect to which the determination of this proviso is being made, would result in beneficial ownership then beneficially owned by the such Holder and its Affiliates affiliates and any other persons whose beneficial ownership of any amount greater than 9.99Common Stock would be aggregated with the Holder's for purposes of Section 13(d) of the 1934 Act, does not exceed 4.999% of the then total number of issued and outstanding shares of Common Stock (whether or not, at including for such purpose the time of such exercise, the Holder and its Affiliates beneficially own more than 9.99% of the then outstanding shares of Common StockStock issuable upon such exercise). 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 For such terms are used in and construed under Rule 144 under the Securities Act. For purposes of the second preceding sentencepurposes, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange 1934 Act of 1934, as amended, and Regulations 13D-G the rules and regulations promulgated thereunder, except as otherwise provided in clause (1) of such sentence. For any reason at any time, upon By written or oral request of the Holder, the Company shall within one (1) business day confirm orally and in writing notice to the Company, a Holder may waive the provisions of this Section 10(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 Holder. (b) Notwithstanding anything to the contrary contained herein, the number of shares of Common Stock outstanding as of any given date. The limitations set forth herein (x) that may be waived acquired by the Holder upon 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 1934 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 1934 Act and the rules and regulations promulgated thereunder. This provision may not be waived. (c) Notwithstanding anything to the contrary in this Warrant, if the Company has not previously obtained Shareholder Approval (as defined below), then the Company may not issue shares of no Common Stock in excess of the Issuable Maximum upon exercises of this Warrant at an exercise price which is less than sixty-one the closing bid price on the trading day immediately preceding the Closing Date or date of the Subscription Agreement, whichever is higher (61the "Threshold Price"). The "Issuable Maximum" means, as of any date, a number of shares of Common Stock equal to 21,504,469, less such number of shares of Common Stock as have been issued at a price below the Threshold Price upon (1) days prior written notice conversion of Notes, or (2) in payment of interest thereunder, or (3) upon exercise of the Warrants, or (4) upon operation of any rights of first refusal under the Agreement. Each Holder shall be entitled to a portion of the Issuable Maximum equal to the Company quotient obtained by dividing: (x) the principal amount of Notes issued and sold to such Holder on the Closing Date by (y) the aggregate principal amount of all Notes issued and sold by the Company on the Closing Date. If any Holder shall automatically become null and void following notice no longer hold Notes, then such Holder's remaining portion of the Issuable Maximum shall be allocated pro-rata among the remaining Holders, giving effect to the Company upon Company's desire to allocate this limitation among the occurrence and during class of securities known as the continuance of an Event of Default Notes. If on any Conversion Date (as defined in the NoteNotes), or at such time as a Holder shall notify the Company that the condition in (A) following this clause shall be in effect: (A) the aggregate number of shares of Common Stock that would then be issuable upon exercise in full of all then outstanding Warrants would exceed the Issuable Maximum on such date, and (B) the Company shall not have previously obtained the vote of shareholders, as may be required by the applicable rules and regulations of the American Stock Exchange (or any successor entity or any other trading market on which the Company's securities then trade), applicable to approve the issuance of shares of Common Stock in excess of the Issuable Maximum pursuant to the terms hereof (the "Shareholder Approval"), then, the Company shall issue to the Holders a number of shares of Common Stock equal to the Issuable Maximum and, with respect to the remainder of the aggregate Warrants then held by the Holders for which an exercise would result in an issuance of shares of Common Stock in excess of the Issuable Maximum, the Company must use its best efforts to seek and obtain Shareholder Approval as soon as possible, but in any event not later than the 60th day following such date of exercise or the date of such request. The Company and the Holder understand and agree that Warrant Shares issued to and then held by the Holder as a result of exercises of Warrants shall not be entitled to cast votes on any resolution to obtain Shareholder Approval pursuant hereto.

Maximum Exercise. Notwithstanding anything herein to the contraryany other provision hereof, in no event shall the Holder shall not be entitled permitted to exercise all or 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 other security of the Holder subject to Warrant, if as a limitation on conversion analogous to the limitations contained herein) and (2) the number of shares of Common Stock issuable upon the exercise of the portion of this Warrant with respect to which the determination of this proviso is being made, would result in beneficial ownership by the Holder and its Affiliates of any amount greater than 9.99% of the then outstanding shares of Common Stock (whether or not, at the time of such exercise, exercise the Holder and its Affiliates beneficially own more than 9.99% of the holder would then outstanding shares of Common Stock). As used herein, the term “ Affiliatebecome a “ten percent beneficial owner” means any person or entity that, directly or indirectly through one or more intermediaries, controls or is controlled by or is (as defined in Rule 16a-2 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 Regulations 13D-G thereunder, except as otherwise provided in clause (1) of such sentenceCommon Stock. For greater certainty, this Warrant shall not be exercisable by the Holder or redeemed by the Company, if, after giving effect to such exercise, the Holder, together with its affiliates and any reason at other persons acting as a group together with the Holder or any time, upon written or oral request of the Holder’s affiliates, would in aggregate beneficially own, or exercise control or direction over that number of voting securities of the Company which is 9.99% or greater of the total issued and outstanding voting securities of the Company, immediately after giving effect to such exercise (the “Beneficial Ownership Limitation”). The Holder, upon notice to the Company, may increase the Beneficial Ownership Limitation; provided, however, that any increase in the Beneficial Ownership Limitation shall not become effective until the 61st day after such notice is delivered to the Company. For purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act. Notwithstanding anything in this Warrant to the contrary, and in addition to the Beneficial Ownership Limitation described above, the Company shall within one (1) business day confirm orally and in writing to Holder agree that the Holder the total cumulative number of shares of Common Stock outstanding that may be issued to Holder under this Warrant, together with any shares of Common Stock issued to holders of warrants in the same series of transactions as this Warrant, may not exceed the requirements of any given dateThe Nasdaq Capital Market (including the rules related to the aggregation of offerings under Nasdaq Listing Rule 5635(d) if applicable) (the “Exchange Cap”), unless (i) stockholder approval is obtained to issue more than the Exchange Cap or (ii) the Common Stock is not listed for quotation on Nasdaq or NYSE American. The limitations set forth herein (x) may Exchange Cap shall be waived by the Holder upon provision of no less than sixtyappropriately adjusted for any reorganization, recapitalization, non-one (61) days prior written notice to the Company and (y) shall automatically become null and void following notice to the Company upon the occurrence and during the continuance of an Event of Default (as defined in the Note)cash dividend, stock split, reverse stock split or other similar transaction.

Maximum Exercise. 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 other security of the Holder subject to a limitation on conversion analogous to the limitations contained herein) and (2) the number of shares of Common Stock issuable upon the exercise of the portion of this Warrant with respect to which the determination of this proviso is being made, would result in beneficial ownership by the Holder and its Affiliates of any amount greater than 9.994.99% of the then outstanding shares of Common Stock (whether or not, at the time of such exercise, the Holder and its Affiliates beneficially own more than 9.994.99% 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 proviso to 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 Regulations 13D-G thereunder, except as otherwise provided in clause (1) of such sentenceproviso. For any reason at any time, upon written or oral request of the Holder, the Company At no time shall within one (1) business day confirm orally and in writing to the Holder the number of shares of Common Stock outstanding as of any given date. The limitations set forth herein (x) may be waived beneficially owned by the Holder upon provision exceed 19.99% of no less than sixty-one (61) days prior written notice the outstanding shares of Common Stock. Notwithstanding anything contained herein to the contrary, the number of shares of Common Stock issuable by the Company and (y) shall automatically become null and void following notice acquirable by the Holder at a price below $1.57 per share pursuant to the Company upon terms of this Warrant, the occurrence and during the continuance of an Event of Default Purchase Agreement, any Related Agreement (as defined in the NotePurchase Agreement) or otherwise, shall not exceed an aggregate of 13,567,898 shares of Common Stock (subject to appropriate adjustment for stock splits, stock dividends, or other similar recapitalizations affecting the Common Stock) (the “Maximum Common Stock Issuance”), unless the issuance of Common Shares hereunder in excess of the Maximum Common Stock Issuance shall first be approved by the Company’s shareholders. If at any point in time and from time to time the number of shares of Common Stock issued pursuant to the terms of this Warrant, the Purchase Agreement, any Related Agreement (as defined in the Purchase Agreement) or otherwise, together with the number of shares of Common Stock that would then be issuable by the Company to the Holder in the event of a conversion pursuant to the terms of this Warrant, the Purchase Agreement, any Related Agreement (as defined in the Purchase Agreement) or otherwise, would exceed the Maximum Common Stock Issuance but for this Section 10, the Company shall promptly call a shareholders meeting to solicit shareholder approval for the issuance of the shares of Common Stock hereunder in excess of the Maximum Common Stock Issuance.

Maximum Exercise. Notwithstanding anything herein to the contrary, in no event shall the Holder any Seller be entitled to exercise any portion of this Warrant his Stock Options in excess of that portion of this Warrant such Seller’s Stock Options that upon exercise of which the sum of which (1) the number of shares of Common Stock common stock of the Buyer beneficially owned by the Holder and its Affiliates any Seller (other than shares of Common Stock common stock which may be deemed beneficially owned through the ownership of the unexercised portion of the Warrant such Seller’s Stock Options or the unexercised or unconverted portion of any other security of the Holder such Seller subject to a limitation on conversion analogous to the limitations contained herein) and (2) the number of shares of Common Stock common stock of the Buyer issuable upon the exercise of the portion of this Warrant such Seller’s Stock Options with respect to which the determination of this proviso is being made, would result in beneficial ownership by the Holder such Seller and its Affiliates of any amount greater than 9.994.99% of the then outstanding shares of Common Stock common stock of the Buyer (whether or not, at the time of such exercise, the Holder such Seller and its Affiliates beneficially own more than 9.994.99% of the then outstanding shares of Common Stockcommon stock of the Buyer). 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 proviso to 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 Regulations 13D-G thereunder, except as otherwise provided in clause (1) of such sentenceproviso. For purposes of this Section 5.7, “Stock Options” means any reason at any time, upon written or oral request stock options of the HolderBuyer issued to the Sellers. However, the Company limitations imposed by this Section 5.7 shall within one (1) business day confirm orally not apply to Stock Options exercised by the Sellers in accordance with the “cashless exercise sale and in writing to the Holder the number of shares of Common Stock outstanding as of any given date. The limitations remittance procedure” set forth herein (x) may be waived by the Holder upon provision of no less than sixty-one (61) days prior written notice to the Company and (y) shall automatically become null and void following notice to the Company upon the occurrence and during the continuance of an Event of Default (as defined in the Note)their respective stock option agreements.