Common use of Maximum Percentage Clause in Contracts

Maximum Percentage. The Warrant Agent shall not effect the exercise of the holder’s Warrant, and such holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of the Warrant, in determining the number of outstanding shares of Common Stock, the holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent annual report on Form 10-K, quarterly report on Form 10-Q, current report on Form 8-K or other public filing with the 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 Transfer Agent (or its successor) setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the Warrant, the Company shall, within two (2) Business Days, confirm orally and in writing to such 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 equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.

Maximum Percentage. The Warrant Agent Company shall not effect the exercise of the holder’s this Incremental Warrant, and such holder the Holder shall not have the right to exercise this Incremental Warrant, and any such Warrantexercise shall be null and void and treated as if never made, to the extent that after giving effect to such exercise, such person the Holder (together with such personthe Holder’s affiliatesaffiliates (as defined in Rule 405 of the Securities Act)), to the Warrant AgentCompany’s actual knowledge, would beneficially own in excess of 4.9949.9% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person the Holder and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the this Incremental Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the this Incremental Warrant beneficially owned by such person the Holder and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or notes, convertible preferred stock or other warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of the this Incremental Warrant, in determining the number of outstanding shares of Common Stock, the holder Holder may rely on the number of outstanding shares of Common Stock as reflected in (1) 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 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 Transfer Agent (or its successor) setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the WarrantHolder, the Company shall, within two (2) Business Days, confirm orally and in writing to such holder the Holder the number of shares of Common Stock then outstanding. “Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of equity securities of the Company by the holder Holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. In the event that the issuance of shares of Common Stock to the Holder upon exercise of this Incremental Warrant results in the Holder and its affiliates 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 and its affiliates’ 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 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 reinstate the portion of the Incremental Warrant and equivalent number of Warrant Shares for which such Excess Shares were voided and return to the Holder the Warrant Price paid by the Holder for the Excess Shares. By written notice to the Company, the holder Holder of a this Incremental Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder Holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company and provided, further, that the Maximum Percentage shall in no event shall exceed 49.9% prior to the Maximum Percentage exceed 9.99% termination of the shares of Common Stock outstanding immediately after giving effect to an exercise of a Warrant. The provisions of this paragraph shall be construed Tax Receivable Agreement, dated February 2, 2018, by and implemented in a manner otherwise than in strict conformity with the terms of this Section 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrantbetween Purple Innovation, Inc. and InnoHold, LLC.

Maximum Percentage. The Warrant Agent Holder may elect, by giving written notice to the Company, to be subject to the provisions contained in this Section 3(d); provided, Holder will not be subject to this Section 3(d) unless Holder affirmatively makes such election. If Holder elects to be subject to this Section 3(d), the Company shall not effect the exercise of the holder’s this Warrant, and such holder Holder shall not have the right to exercise such this Warrant, to the extent that after giving effect to such exercise, such person Holder (together with such personHolder’s affiliates), to the Warrant AgentCompany’s actual knowledge, would beneficially own in excess of 4.999.8% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person Holder and its Holder’s affiliates shall include the number of shares of Common Stock issuable upon exercise of the this Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (xi) exercise of the remaining, unexercised portion of the this Warrant beneficially owned by such person and its affiliates and (yii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person Holder and its Holder’s affiliates (including, without limitation, any convertible notes or convertible preferred stock shares or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determinationamended. For purposes of the this Warrant, in determining the number of outstanding shares of Common Stock, the holder Holder 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 U.S. Securities and Exchange Commission (the “SEC”) as the case may be, (2y) a more recent public announcement by the Company or (3z) any other notice by the Company or the Transfer Agent (or its successor) setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the WarrantHolder, the Company shall, within two (2) Business Daysbusiness days, confirm orally and in writing to such holder 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 equity securities of the Company by the holder Holder and its Holder’s affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a Warrant Holder may from time to time increase or decrease the Maximum Percentage applicable to such holder Holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) business day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this WarrantCompany.

Maximum Percentage. The A Registered Holder may notify the Company in writing in the event it elects to be subject to the provisions contained in this subsection 3.3(e); however, no such Registered Holder shall be subject to this subsection 3.3(e) unless it makes such election. If the election is made, the Warrant Agent shall not effect the exercise of the holder’s Warrantsuch exercise, and such holder Registered Holder shall not have the right to exercise such Sponsor Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, ) would beneficially own in excess of 4.999.8% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the Warrant Sponsor Warrants with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant Sponsor Warrants beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of the WarrantSponsor Warrants, in determining the number of outstanding shares of Common Stock, the holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent annual report on Form 10-K, quarterly report on Form 10-Q, current report on Form 8-K or other public filing with the Commission 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 Transfer Agent (or its successor) setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the Warranta Registered Holder, the Company shall, within two (2) Business Days, confirm orally and in writing to such 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 equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a Sponsor Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this WarrantCompany.

Maximum Percentage. The Warrant Agent A holder of Warrants may notify the Company in writing in the event it elects to be subject to the provisions contained in this Section 3.3.5. No holder of Warrants shall be subject to this Section 3.3.5 unless it makes such election. If election is made by a holder, the Company shall not effect the exercise of the holder’s this Warrant, and such holder shall not have the right to exercise such this Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, ) would beneficially own in excess of 4.99% nine and eight-tenths percent (9.8%) (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the this Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that which would be issuable upon (x) exercise of the remaining, unexercised portion of the this Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determinationamended. For purposes of the this Warrant, in determining the number of outstanding shares of Common Stock, the holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent annual report on Form 10-K, quarterly report on Form 10-Q, current report on Form 8-K or other public filing with the Commission SEC as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Transfer Agent (or its successor) setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written or oral request of the holder of the Warrantholder, the Company shall, shall within two (2) Business Days, Days confirm orally and in writing to such 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 equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, provided that any such increase shall will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this WarrantCompany.

Maximum Percentage. The Warrant Agent Notwithstanding anything to the contrary, the Holder may notify the Company in writing in the event it elects to be subject to the provisions contained in this Section 2.3; provided, no Holder shall be subject to this Section 2.3 unless such election is made. If the election is made by a Holder it shall do so by delivering the election notice in substantially the form of the election notice attached hereto, in which event, the Company shall not effect the exercise of the holderHolder’s Warrant, and such holder Holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant AgentCompany’s actual knowledge, would beneficially own in excess of 4.99% or 9.99% (as specified by the Holder) (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of the Warrant, in determining the number of outstanding shares of Common Stock, the holder Holder may rely on the number of outstanding shares of Common Stock as reflected in (1) 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 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 Transfer Agent (or its successor) setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the WarrantHolder, the Company shall, within two (2) Business Days, confirm orally and in writing to such holder 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 equity securities of the Company by the holder Holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a Warrant Holder may from time to time increase or decrease the Maximum Percentage applicable to such holder Holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this WarrantCompany.

Maximum Percentage. The Warrant Agent Registered Holder may notify the Company in writing in the event it elects to be subject to the provisions contained in this subsection 3.3.5; however, the Registered Holder shall not be subject to this subsection 3.3.5 unless the Registered Holder makes such election. If the election is made by the Registered Holder, the Company shall not effect the exercise of the holder’s Warrant, and such holder the Registered Holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, such person the Registered Holder (together with such personthe Registered Holder’s affiliatesaffiliates (as defined below)), to the Warrant AgentCompany’s actual knowledge, would beneficially own in excess of 4.999.999% (or such other amount as the Registered Holder may specify) (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person the Registered Holder and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the Warrant Shares with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person the Registered Holder and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person the Registered Holder and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants, including other Warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of the Warrant, in determining the number of outstanding shares of Common Stock, the holder Registered Holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent annual report Annual Report on Form 10-K, quarterly report Quarterly Report on Form 10-Q, current report Current Report on Form 8-K or other public filing with the 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 Transfer Agent (or its successor) setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the WarrantRegistered Holder, the Company shall, within two (2) Business Days, confirm orally and in writing to such holder the Registered 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 equity securities of the Company by the holder Registered Holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a Warrant Registered Holder may from time to time increase or decrease the Maximum Percentage applicable to such holder the Registered Holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a WarrantCompany. The provisions of this paragraph term “affiliate” shall be construed and implemented have the meaning ascribed to such term in a manner otherwise than in strict conformity with Rule 12b-2 under the terms of this Section 3.3.7 to correct this paragraph Exchange Act (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrantrule).

Maximum Percentage. The Warrant Agent A holder of Warrants may notify the Company in writing in the event it elects to be subject to the provisions contained in this Section 3.3.5. No holder of Warrants shall be subject to this Section 3.3.5 unless it makes such election. If election is made by a holder, the Company shall not effect the exercise of the holder’s this Warrant, and such holder shall not have the right to exercise such this Warrant, to the extent that after giving effect to such exercise, such person Person (together with such personPerson’s affiliates), to the Warrant Agent’s actual knowledge, ) would beneficially own in excess of 4.999.8% (the “Maximum Percentage”) of the shares of Common Stock Ordinary Shares outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock Ordinary Shares beneficially owned by such person Person and its affiliates shall include the number of shares of Common Stock Ordinary Shares issuable upon exercise of the this Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that Ordinary Shares which would be issuable upon (x) exercise of the remaining, unexercised portion of the this Warrant beneficially owned by such person Person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person Person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determinationamended. For purposes of the this Warrant, in determining the number of outstanding shares of Common StockOrdinary Shares, the holder may rely on the number of outstanding shares of Common Stock Ordinary Shares as reflected in (1) the Company’s most recent annual report Form 20-F, Current Report on Form 10-K, quarterly report on Form 10-Q, current report on Form 86-K or other public filing with the Commission SEC as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Transfer Agent (or its successor) setting forth the number of shares of Common Stock Ordinary Shares outstanding. For any reason at any time, upon the written or oral request of the holder of the Warrantholder, the Company shall, shall within two (2) Business Days, Days confirm orally and in writing to such the holder the number of shares of Common Stock Ordinary Shares then outstanding. 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 equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding shares of Common Stock Ordinary Shares was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, provided that any such increase shall will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this WarrantCompany.

Maximum Percentage. The A holder of a Warrant may notify the Company in writing in the event it elects to be subject to the provisions contained in this Section 3.3.5; however, no holder of a Warrant shall be subject to this subsection 3.3.5 unless he, she or it makes such election. If the election is made by a holder, the Warrant Agent shall not effect the exercise of the holder’s Warrant, and such holder shall not have the right to exercise such WarrantWarrant or effect a Cashless Exchange (it being understood that any Exercise Notice or Cashless Exchange Notice delivered in violation of this Section 3.3.5 shall be null and void), to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of 4.999.8% (the “Maximum Percentage”) of the shares of Company Common Stock Shares outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Company Common Stock Shares beneficially owned by such person and its affiliates shall include the number of shares of Company Common Stock Shares issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Company Common Stock Shares that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of the Warrant, in determining the number of outstanding shares of Company Common StockShares, the holder may rely on the number of outstanding shares of Company Common Stock Shares as reflected in (1) the Company’s most recent annual report on Form 1020-K, quarterly report on Form 10-QF, current report on Form 86-K K, or other public filing with the Commission SEC as the case may be, (2) a more recent public announcement by the Company Company, or (3) any other notice by the Company or the transfer agent for the Company Common Shares (the “Transfer Agent (or its successorAgent”) setting forth the number of shares of Company Common Stock Shares outstanding. For any reason at any time, upon the written request of the holder of the Warrant, the Company shall, within two (2) Business Days, confirm orally and in writing to such holder the number of shares of Company Common Stock Shares then outstanding. In any case, the number of outstanding shares of Company Common Stock Shares shall be determined after giving effect to the conversion or exercise of equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding shares of Company Common Stock Shares was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this WarrantCompany.

Maximum Percentage. The A holder of a Warrant Agent may notify the Company in writing in the event it elects to be subject to the provisions contained in this subsection 3.3.5; however, no holder of a Warrant shall not effect be subject to this subsection 3.3.5 unless he, she or it makes such election. If the exercise of the election is made by a holder’s Warrant, and such holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of 4.999.8% or such other amount as the holder may specify (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of the Warrant, in determining the number of outstanding shares of Common Stock, the holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent annual report Annual Report on Form 10-K, quarterly report Quarterly Report on Form 10-Q, current report Current Report on Form 8-K or other public filing with the Commission Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or Continental Stock Transfer & Trust Company, as transfer agent (in such capacity, the “Transfer Agent (or its successor) setting Agent”),setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the Warrant, the Company shall, within two (2) Business Days, Days confirm orally and in writing to such 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 equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this WarrantCompany.

Maximum Percentage. The A Registered Holder may notify the Company in writing in the event it elects to be subject to the provisions contained in this subsection 3.3(e); however, no such Registered Holder shall be subject to this subsection 3.3(e) unless it makes such election. If the election is made, the Warrant Agent shall not effect the exercise of the holder’s Warrantsuch exercise, and such holder Registered Holder shall not have the right to exercise such Director Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, ) would beneficially own in excess of 4.999.8% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the Warrant Director Warrants with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant Director Warrants beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of the WarrantDirector Warrants, in determining the number of outstanding shares of Common Stock, the holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent annual report on Form 10-K, quarterly report on Form 10-Q, current report on Form 8-K or other public filing with the Commission 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 Transfer Agent (or its successor) setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the Warranta Registered Holder, the Company shall, within two (2) Business Days, confirm orally and in writing to such 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 equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a Director Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this WarrantCompany.

Maximum Percentage. The Warrant Agent A holder of Warrants may notify the Company in writing in the event it elects to be subject to the provisions contained in this Section 3.3.5. No holder of Warrants shall be subject to this Section 3.3.5 unless it makes such election. If election is made by a holder, the Company shall not effect the exercise of the holder’s this Warrant, and such holder shall not have the right to exercise such this Warrant, to the extent that after giving effect to such exercise, such person Person (together with such personPerson’s affiliates), to the Warrant Agent’s actual knowledge, ) would beneficially own in excess of 4.999.8% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person Person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the this Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that which would be issuable upon (x) exercise of the remaining, unexercised portion of the this Warrant beneficially owned by such person Person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person Person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determinationamended. For purposes of the this Warrant, in determining the number of outstanding shares of Common Stock, the holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent annual report on Form 10-K, quarterly report on Form 10-KSB, Form 10-Q, current report Form 10-QSB, 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 notice by the Company or the Transfer Agent (or its successor) setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written or oral request of the holder of the Warrantholder, the Company shall, shall within two (2) Business Days, Days confirm orally and in writing to such 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 equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, provided that any such increase shall will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this WarrantCompany.

Maximum Percentage. The Holder may notify the Company in writing in the event it elects to be subject to the provisions contained in this Section 2(a)(iii); provided, however, no Holder shall be subject to this Section 2(a)(iii) unless he, she or it makes such election. If the election is made by the Holder, the Warrant Agent shall not effect the exercise of all or a portion of the holderHolder’s WarrantPre-Funded Warrants, and such holder Holder shall not have the right to exercise all or a portion of such WarrantPre-Funded Warrants, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of 4.9919.9% (or such other amount as a Holder may specify) (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of all or a portion of the Warrant Pre-Funded Warrants with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant Pre-Funded Warrants beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock shares or warrants) ), subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determinationamended. For purposes of the WarrantPre-Funded Warrants, in determining the number of outstanding shares of Common Stock, the holder Holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent annual report Annual Report on Form 10-K, quarterly report Quarterly Report on Form 10-Q, current report Current Report on Form 8-K or other public filing with the U.S. Securities and Exchange Commission (the “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 Transfer Agent (or its successor) setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder Holder of the WarrantPre-Funded Warrants, the Company shall, within two five (25) Business Days, confirm orally and in writing to such holder 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 equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the holder Holder of a Warrant the Pre-Funded Warrants may from time to time increase or decrease the Maximum Percentage applicable to such holder it to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this WarrantCompany.

Maximum Percentage. The A holder of a Warrant may notify the Company in writing in the event it elects to be subject to the provisions contained in this subsection 3.3.5; however, no holder of a Warrant shall be subject to this subsection 3.3.5 unless he, she or it makes such election. If the election is made by a holder, the Warrant Agent shall not effect cause the exercise of the holder’s Warrant, and such holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of 4.999.8% (the “Maximum Percentage”) of the shares of Common Stock Shares outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock Shares beneficially owned by such person and its affiliates shall include the number of shares of Common Stock Shares issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock Shares that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of the Warrant, in determining the number of outstanding shares of Common StockShares, the holder may rely on the number of outstanding shares of Common Stock Shares as reflected in (1) the Company’s most recent annual report on Form 1020-K, quarterly report on Form 10-QF, current report on Form 86-K or other public filing with the Commission SEC as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Transfer Warrant Agent (or its successor) setting forth the number of shares of Common Stock Shares outstanding. For any reason at any time, upon the written request of the holder of the Warrant, the Company shall, within two (2) Business Days, confirm orally and in writing to such holder the number of shares of Common Stock Shares then outstanding. In any case, the number of outstanding shares of Common Stock Shares shall be determined after giving effect to the conversion or exercise of equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding shares of Common Stock Shares was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this WarrantCompany.

Maximum Percentage. The Registered Holder may notify the Warrant Agent in writing in the event it elects to be subject to the provisions contained in this subsection 3.3.5; however, no Registered Holder shall be subject to this subsection 3.3.5 unless he, she or it makes such election. If the election is made by a Registered Holder, the Warrant Agent shall not effect the exercise of the holderRegistered Holder’s Warrant, and such holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of, at the election of 4.99the Registered Holder as specified in the notice to the Warrant Agent, either 4.9% or 9.8% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of the Warrant, in determining the number of outstanding shares of Common Stock, the holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent annual report on Form 10-K, quarterly report on Form 10-Q, current report on Form 8-K or other public filing with the Commission as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or Continental Stock Transfer & Trust Company (the “Transfer Agent (or its successorAgent”) setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the Warrant, the Company shall, within two (2) Business Days, confirm orally and in writing to such 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 equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the CompanyWarrant Agent, the holder of a Warrant Registered Holder may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this WarrantWarrant Agent.

Maximum Percentage. The Warrant Agent Issuer shall not effect the exercise of the holder’s Warrantknowingly permit any conversion pursuant to this Section 2.4, and such holder a Designated Holder shall not have the right to exercise such Warrantthe same, to the extent that that, after giving effect to such exerciseconversion, such person Designated Holder (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, its Affiliates) would beneficially own in excess of 4.994.9% (the “Maximum Percentage”) of the shares Common Stock outstanding immediately after giving effect to such exercise (or such higher or lower amount as such Designated Holder may specify with at least 61 days’ written notice to the Issuer, but which in no event may exceed 19.9% of the Common Stock outstanding immediately after giving effect to such exercise) (as applicable, the “Maximum Percentage”). For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person a Designated Holder and its affiliates Affiliates shall include the number of shares of Common Stock issuable upon exercise of the Warrant conversion pursuant to this Section 2.4 with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that which would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company Issuer beneficially owned by such person Designated Holder and its affiliates Affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrantsoption granted pursuant to the Stock Purchase and Conversion Agreement) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraphSection 2.4(f), beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of the WarrantConversion Shares, in determining the number of outstanding shares of Common Stock, the holder Designated Holders may rely on the number of outstanding shares of Common Stock as reflected in the most recent of (1i) the CompanyIssuer’s most recent annual report Annual Report on Form 10-K, quarterly report Quarterly Report on Form 10-Q, current report on Form 8-K Q or other public filing with the Commission SEC, as the case may be, (2ii) a more recent public announcement by the Company Issuer or (3iii) any other notice by the Company or the Transfer Agent (Issuer or its successor) transfer agent setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon Upon the written request of the holder of the Warranta Designated Holder, the Company shall, within Issuer shall promptly (and no later than two (2) Business Days, Days following such request) confirm orally and in writing to such holder Designated Holder the number of shares of Common Stock then outstanding. In any caseFurthermore, upon the number written request of outstanding shares of Common Stock the Issuer, each Designated Holder shall be determined after giving effect confirm to the conversion or exercise of equity securities of the Company by the holder and Issuer its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice then current beneficial ownership with respect to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Issuer’s Common Stock outstanding immediately after giving effect to an exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this WarrantStock.

Maximum Percentage. The Warrant Agent Notwithstanding anything to the contrary in this Certificate, in no event (including, for greater certainty, on expiry) shall not effect the Company issue, be required to issue or be deemed to have issued a number of Common Shares upon exercise of or otherwise pursuant to the holder’s WarrantWarrants, and such holder the Holder shall not have the right to exercise any portion of the Warrants pursuant to the terms and conditions of this Certificate and any such Warrantexercise shall be null and void and treated as if never made, in each case, to the extent that after giving effect to such exercise, such person (the Holder together with such person’s affiliates), to the Warrant Agent’s actual knowledge, other Attribution Parties (as defined below) collectively would beneficially own or exercise control or direction over, directly or indirectly in excess of 4.99% (the “Maximum Percentage”) of the shares of Common Stock Shares outstanding immediately after giving effect to such exercise. Notwithstanding the foregoing, the Holder may, upon notice to the Company, increase or decrease the Maximum Percentage, provided that the Maximum Percentage in no event exceeds 9.99% of the number of Common Shares outstanding immediately after giving effect to the issuance of the Common Shares upon exercise of this Warrant held by the Holder and the provisions of this Section 1(e) shall continue to apply; provided, further, any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company. In the event that the issuance of Common Shares under this Certificate would result in the Holder (collectively with any other Attribution Parties) beneficially owning or being able to exercise control or direction over, directly or indirectly, Common Shares in excess of the Maximum Percentage of the Common Shares outstanding immediately after giving effect to such exercise or issuance, such number of Common Shares up to but not in excess of the Maximum Percentage shall be issued and after such number of Common Shares have been issued, the remaining issued and outstanding Warrants shall be automatically deemed to be unexercised. For purposes of the foregoing sentencethis paragraph, the aggregate number of shares of Common Stock Shares beneficially owned by such person the Holder and its affiliates the other Attribution Parties shall include the number of shares Common Shares held by the Holder and all other Attribution Parties plus the number of Common Stock Shares issuable upon exercise of the Warrant any Warrants with respect to which the determination of such sentence calculation is being made, but shall exclude shares of Common Stock that Shares which would be issuable upon (xA) exercise of the remaining, unexercised portion of the Warrant outstanding Warrants beneficially owned by such person and its affiliates the Holder or any of the other Attribution Parties and (yB) exercise or conversion of the unexercised or unconverted nonconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes notes, convertible debentures, or convertible preferred stock or warrants) beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained hereinin this Section 1(e). Except as set forth in the preceding sentence, for For purposes of this paragraphSection 1(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the United States Securities Exchange Act of 1934, as amended amended, and the rules and regulations promulgated thereunder (the “U.S. Securities Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of the Warrant, in determining the number of outstanding shares Common Shares the Holder may acquire upon exercise of Common Stockthe Warrants without exceeding the Maximum Percentage, the holder Holder may rely on the number of outstanding shares of Common Stock Shares as reflected in the most recent of (1x) the Company’s most recent annual report Annual Report on Form 10-K, quarterly report Quarterly Report on Form 10-Q, current report Current Report on Form 8-K or other public filing with the Commission U.S. Securities and Exchange Commission, 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 Transfer Agent (or its successor) transfer agent, if any, setting forth the number of shares Common Shares outstanding (the “Reported Outstanding Share Number”). If the Company receives an Election to Purchase from the Holder at a time when the actual number of outstanding Common Shares is less than the Reported Outstanding Share Number, the Company shall notify the Holder in writing of the number of Common Stock outstandingShares then outstanding and, to the extent that such Election to Purchase would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this Section 1(e), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Common Shares to be exercised pursuant to such Election to Purchase. For any reason at any time, upon the written request of the holder of the WarrantHolder, the Company shall, shall within two (2) one Business Days, Day confirm orally and in writing or by electronic mail to such holder the Holder the number of shares of Common Stock Shares then outstanding. In any case, the number of outstanding shares of Common Stock Shares shall be determined after giving effect to the conversion or exercise of equity securities of the Company Company, including the Warrants, by the holder Holder and its affiliates any other Attribution Party since the date as of which such the Reported Outstanding Share Number was reported. In the event that the issuance of Common Shares to the Holder upon exercise of the Warrants results in the Holder and the other Attribution Parties being deemed to beneficially own or exercise control or direction over, directly or indirectly, in the aggregate, more than the Maximum Percentage of the number of outstanding shares Common Shares (as determined under Section 13(d) of the U.S. Securities Exchange Act), the number of Common Stock was reported. By written notice to Shares so issued by which the Company, Holder’s and the holder of a Warrant may from time to time increase other Attribution Parties’ aggregate beneficial ownership or decrease control exceeds the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided(the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, however, that any such increase and the Holder shall not be effective until have the sixty-first (61st) day after such notice is delivered power to vote or to transfer the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a WarrantExcess Shares. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 3.3.7 1(e) to the extent necessary to correct this paragraph (or any portion hereofof this paragraph) which may be defective or inconsistent with the intended Maximum Percentage herein beneficial ownership limitation contained in this Section 1(e) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations limitation contained in this paragraph may not be waived and shall apply to a successor holder of any and all Warrants. For the purposes of this WarrantSection 1(e), “Attribution Parties” shall mean, 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 Common Shares would or could be aggregated with the Holders and the other Attribution Parties for purposes of Section 13(d) of the U.S. Securities Exchange Act; and “Group” shall mean a “group” as that term is used in Section 13(d) of the U.S. Securities Exchange Act and as defined in Rule 13d-5 thereunder. For clarity, the purpose of these definitions are to subject the Holder and all other Attribution Parties to the Maximum Percentage.

Maximum Percentage. The Warrant Agent Notwithstanding anything to the contrary, the Holder may notify the Company in writing in the event it elects to be subject to the provisions contained in this Section 2.3; provided, no Holder shall be subject to this Section 2.3 unless such election is made. If the election is made by a Holder it shall do so by delivering the election notice in substantially the form of the election notice attached hereto, in which event, the Company shall not effect the exercise of any portion of the holderHolder’s Warrant, and such holder the Holder shall not have the right to exercise any portion of such 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 after giving effect immediately prior to or following such exercise, such person (the Holder together with such person’s affiliates), to the Warrant Agent’s actual knowledge, Attribution Parties beneficially owns or would beneficially own in excess of 4.99% or 9.99% (as specified by the Holder) (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and its affiliates the Holder together with the Attribution Parties shall include the number of shares of Common Stock issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates the Holder or the Attribution Parties and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates the Holder or any Attribution Party (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended amended, and the rules promulgated thereunder (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of the Warrant, in determining the number of outstanding shares of Common Stock, the holder Holder may rely on the number of outstanding shares of Common Stock as reflected in (1) 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 (the “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 Transfer Agent (or its successor) Company’s transfer agent setting forth the number of shares of Common Stock outstandingoutstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written request of the holder of the WarrantHolder, the Company shall, within two (2) Business Days, confirm orally and in writing to such holder the Holder the number of shares of Common Stock then outstanding. 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 2.3, 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 equity securities of the Company by the holder Holder and its affiliates the Attribution Parties since the date as of which such 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 was reported(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, the holder of a Warrant Holder may from time to time increase or decrease the Maximum Percentage applicable to such holder the Holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an not negatively affect any partial exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect effected prior to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrantchange.

Maximum Percentage. The Warrant Agent Notwithstanding anything to the contrary, the Holder may notify the Company in writing in the event it elects to be subject to the provisions contained in this Section 2.3; however, no Holder shall be subject to this Section 2.3 unless such election is made. If the election is made by a Holder it shall do so by delivering the election notice in substantially the form of the election notice attached hereto, in which event, the Company shall not effect the exercise of the holderHolder’s Warrant, and such holder Holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant AgentCompany’s actual knowledge, would beneficially own in excess of 4.99% or 9.99% (as specified by the Holder) (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of the Warrant, in determining the number of outstanding shares of Common Stock, the holder Holder may rely on the number of outstanding shares of Common Stock as reflected in (1) 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 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 Transfer Agent (or its successor) setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the WarrantHolder, the Company shall, within two (2) Business Days, confirm orally and in writing to such holder 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 equity securities of the Company by the holder Holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a Warrant Holder may from time to time increase or decrease the Maximum Percentage applicable to such holder Holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this WarrantCompany.

Maximum Percentage. The Warrant Agent Notwithstanding anything to the contrary set forth herein, the Corporation shall not effect the exercise any conversion of the holder’s WarrantSeries A Convertible Preferred Stock, and such holder no Holder shall not have the right to exercise such Warrantconvert any Series A Convertible Preferred Stock, to the extent that after giving effect to such exerciseconversion, the beneficial owner of such person shares (together with such person’s Person's affiliates)) would have acquired, through conversion of Series A Convertible Preferred Stock or otherwise, beneficial ownership of a number of shares of Common Stock that exceeds 9.99% (the "Maximum Percentage") of the number of shares of Common Stock outstanding immediately after giving effect to such conversion. The Corporation shall not give effect to any voting rights of the Series A Convertible Preferred Stock, and any Holder shall not have the right to exercise voting rights with respect to any Series A Convertible Preferred Stock pursuant hereto, to the Warrant Agent’s actual knowledge, extent that giving effect to such voting rights would result in such Holder (together with its affiliates) being deemed to beneficially own in excess of 4.99% (the “Maximum Percentage”) Percentage of the number of shares of Common Stock outstanding immediately after giving effect to such exercise, assuming such exercise as being equivalent to conversion. For purposes of the foregoing sentenceforegoing, the aggregate number of shares of Common Stock beneficially owned by such person a Person and its affiliates shall include the number of shares of Common Stock issuable upon exercise conversion of the Warrant Series A Convertible Preferred Stock with respect to which the determination of such sentence is being made, but shall exclude the number of shares of Common Stock that which would be issuable upon (xA) exercise conversion of the remaining, unexercised portion nonconverted shares of the Warrant Series A Convertible Preferred Stock beneficially owned by such person and Person or any of its affiliates and (yB) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates Corporation (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained hereinin this Section 6(i) beneficially owned by such Person or any of its affiliates. Except as set forth in the preceding sentence, for purposes of this paragraphSection 6(i), beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of the Warrantthis Section 6(i), in determining the number of outstanding shares of Common Stock, the holder a Holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s Corporation's most recent annual report on Form 10-K, quarterly report on Form 10-Q, current report on or Form 8-K or other public filing with the Commission K, as the case may be, (2) a more recent public announcement by the Company Corporation, or (3) any other notice by the Company Corporation or the Transfer Agent (or its successor) setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the Warrantany Holder, the Company shall, Corporation shall within two one (21) Business DaysDay following the receipt of such notice, confirm orally and in writing to any such holder 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 equity securities of the Company Corporation, including the Series A Convertible Preferred Stock, by the holder such Holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the CompanyCorporation, the holder of a Warrant Holder may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage not in excess of 9.99% specified in such notice; provided, however, that (i) any such increase shall will not be effective until the sixty-first (61st) day after such notice is delivered to the Company Corporation, and (ii) any such increase or decrease will apply only to the Holder providing such written notice and not to any other Holder. In the event that the Corporation cannot pay any portion of any dividend, distribution, grant or issuance hereunder to a Holder solely by reason of this Section 6(i) (such shares, the "Limited Shares"), notwithstanding anything to the contrary contained herein, the Corporation shall not be required to pay cash in no event lieu of the payment that otherwise would have been made in such Limited Shares, but shall hold any such Limited Shares in abeyance for such Holder until such time, if ever, that the delivery of such Limited Shares shall not cause the Holder to exceed the Maximum Percentage exceed 9.99% of Percentage, at which time such Holder shall be delivered such Limited Shares to the shares of Common Stock outstanding immediately after giving effect to an exercise of a Warrantextent as if there had been no such limitation. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 3.3.7 6(i) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.

Maximum Percentage. The Warrant Agent Company shall not effect the exercise of the holder’s this Warrant, and such holder the Holder shall not have the right to exercise this Warrant, and any such Warrantexercise shall be null and void and treated as if never made, to the extent that after giving effect to such exercise, such person the Holder (together with such personthe Holder’s affiliatesaffiliates (as defined in Rule 405 of the Securities Act)), to the Warrant AgentCompany’s actual knowledge, would beneficially own in excess of 4.9949.9% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person the Holder and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the this Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the this Warrant beneficially owned by such person the Holder and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or notes, convertible preferred stock or other warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of the this Warrant, in determining the number of outstanding shares of Common Stock, the holder Holder may rely on the number of outstanding shares of Common Stock as reflected in (1) 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 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 Transfer Agent (or its successor) setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the WarrantHolder, the Company shall, within two (2) Business Days, confirm orally and in writing to such holder the Holder the number of shares of Common Stock then outstanding. “Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of equity securities of the Company by the holder Holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. In the event that the issuance of shares of Common Stock to the Holder upon exercise of this Warrant results in the Holder and its affiliates 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 and its affiliates’ 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 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 reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such Excess Shares were voided and return to the Holder the Warrant Price paid by the Holder for the Excess Shares. By written notice to the Company, the holder Holder of a this Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder Holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company and provided, further, that the Maximum Percentage shall in no event shall exceed 49.9% prior to the Maximum Percentage exceed 9.99% termination of the shares of Common Stock outstanding immediately after giving effect to an exercise of a Warrant. The provisions of this paragraph shall be construed Tax Receivable Agreement, dated February 2, 2018, by and implemented in a manner otherwise than in strict conformity with the terms of this Section 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrantbetween Purple Innovation, Inc. and InnoHold, LLC.

Maximum Percentage. The A Registered Holder may notify the Company in writing in the event it elects to be subject to the provisions contained in this subsection 3.3(e); however, no such Registered Holder shall be subject to this subsection 3.3(e) unless it makes such written election. If the written election is made, the Warrant Agent shall not effect the exercise of the holder’s Warrantsuch exercise, and such holder Registered Holder shall not have the right to exercise such Advisor Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, ) would beneficially own in excess of 4.999.8% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the Warrant Advisor Warrants with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant Advisor Warrants beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of the WarrantAdvisor Warrants, in determining the number of outstanding shares of Common Stock, the holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent annual report on Form 10-K, quarterly report on Form 10-10- Q, current report on Form 8-K or other public filing with the Commission 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 Transfer Agent (or its successor) setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the Warranta Registered Holder, the Company shall, within two (2) Business Days, confirm orally and in writing to such 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 equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a an Advisor Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.Company

Maximum Percentage. The A Registered Holder may notify the Company in writing in the event it elects to be subject to the provisions contained in this subsection 3.3(e); however, no such Registered Holder shall be subject to this subsection 3.3(e) unless it makes such written election. If the written election is made, the Warrant Agent shall not effect the exercise of the holder’s Warrantsuch exercise, and such holder Registered Holder shall not have the right to exercise such Sponsor Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, ) would beneficially own in excess of 4.999.8% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the Warrant Sponsor Warrants with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant Sponsor Warrants beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of the WarrantSponsor Warrants, in determining the number of outstanding shares of Common Stock, the holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent annual report on Form 10-K, quarterly report on Form 10-Q, current report on Form 8-K or other public filing with the Commission 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 Transfer Agent (or its successor) setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the Warranta Registered Holder, the Company shall, within two (2) Business Days, confirm orally and in writing to such 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 equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a Sponsor Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this WarrantCompany.

Maximum Percentage. The A Registered Holder may notify the Company in writing in the event it elects to be subject to the provisions contained in this subsection 3.3(e); however, no such Registered Holder shall be subject to this subsection 3.3(e) unless it makes such written election. If the written election is made, the Warrant Agent shall not effect the exercise of the holder’s Warrantsuch exercise, and such holder Registered Holder shall not have the right to exercise such Advisor Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, ) would beneficially own in excess of 4.999.8% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the Warrant Advisor Warrants with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant Advisor Warrants beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of the WarrantAdvisor Warrants, in determining the number of outstanding shares of Common Stock, the holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent annual report on Form 10-K, quarterly report on Form 10-Q, current report on Form 8-K or other public filing with the Commission 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 Transfer Agent (or its successor) setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the Warranta Registered Holder, the Company shall, within two (2) Business Days, confirm orally and in writing to such 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 equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a an Advisor Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.Company

Maximum Percentage. The Warrant Agent Company shall not effect the exercise of the holder’s this Warrant, and such holder the Registered Holder shall not have the right to exercise such this Warrant, to the extent that after giving effect to such exercise, such person (together with such personRegistered Holder’s affiliatesaffiliates (as used herein as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”))), to the Warrant AgentCompany’s actual knowledge, would beneficially own in excess of 4.99% (or such other amount as a holder may specify in excess of 4.99% but to exceed 9.99%) (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person Registered Holder and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the this Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the this Warrant beneficially owned by such person Registered Holder and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person Registered Holder and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For the purposes of the this Warrant, in determining the number of outstanding shares of Common Stock, the holder Registered Holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent annual report Annual Report on Form 10-K, quarterly report Quarterly Report on Form 10-Q, current report on Form 8-K or other public filing with the Securities and Exchange Commission (the “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 Transfer Agent (or its successor) setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the WarrantRegistered Holder, the Company shall, within two (2) Business Days, confirm orally and in writing to such 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 equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a Warrant Registered Holder may from time to time increase or decrease the Maximum Percentage applicable to such holder Registered Holder to any other percentage specified in such notice, not less than 4.99% and not to exceed 9.99%; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this WarrantCompany.

Maximum Percentage. The Warrant Agent shall not effect In the exercise event that a Registered Holder of the holder’s a Warrant, and such holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s its affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of 4.999.8% of the fully-diluted value of the Company (the “Maximum Percentage”) after exercise of such Registered Holder’s Warrant(s), the Registered Holder may notify the Company that it elects to cut back such exercise, and the Warrant Agent shall not exercise any Warrant held by the Registered Holder or its affiliates in excess of the shares of Common Stock outstanding immediately after giving effect to such exerciseMaximum Percentage. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of the Warrant, in determining the number of outstanding shares of Common Stock, the holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent annual report on Form 10-K, quarterly report on Form 10-Q, current report on Form 8-K K, or other public filing with the Commission SEC as the case may be, (2) a more recent public announcement by the Company Company, or (3) any other notice by the Company or the Transfer Agent (or its successor) transfer agent setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the Warrant, the Company shall, within two (2) Business Daysbusiness days, confirm orally and in writing to such 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 equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; providedprovide, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this WarrantCompany.

Maximum Percentage. The Warrant Agent shall not effect In the exercise event that a Registered Holder of the holder’s a Warrant, and such holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s its affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of 4.999.8% of the fully-diluted value of the Company (the “Maximum Percentage”) after exercise of such Registered Holder’s Warrant(s), the Registered Holder may notify the Company that it elects to cut back such exercise, and the Warrant Agent shall not exercise any Warrant held by the Registered Holder or its affiliates in excess of the shares of Common Stock outstanding immediately after giving effect to such exerciseMaximum Percentage. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of the Warrant, in determining the number of outstanding shares of Common Stock, the holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent annual report on Form 10-K, quarterly report on Form 10-Q, current report on Form 8-K K, or other public filing with the Commission SEC as the case may be, (2) a more recent public announcement by the Company Company, or (3) any other notice by the Company or the Transfer Agent (or its successor) transfer agent setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the Warrant, the Company shall, within two (2) Business Daysbusiness days, confirm orally and in writing to such 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 equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.

Maximum Percentage. The Warrant Agent Company shall not effect the exercise of all or a portion of the holder’s WarrantWarrants held by a Warrantholder, and such holder Warrantholder shall not have the right to exercise all or a portion of such WarrantWarrants, to the extent that after giving effect to such exercise, such person (together with such person’s affiliatesAffiliates), to the Warrant AgentCompany’s actual knowledge, would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the shares of Common Stock Shares outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock Shares beneficially owned by such person and its affiliates Affiliates shall include the number of shares of Common Stock Shares issuable upon exercise of all or a portion of the Warrant Warrants held by the Warrantholder and its Affiliates with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock Shares that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant Warrants beneficially owned by such person Warrantholder and its affiliates Affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person Warrantholder and its affiliates (includingAffiliates, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determinationamended. For purposes of the Warrantthis Agreement, in determining the number of outstanding shares of Common StockShares, the holder Warrantholder may rely on the number of outstanding shares of Common Stock Shares as reflected in (1) the Company’s most recent annual report Annual Report on Form 1010- K or 20-KF, quarterly report Quarterly Report on Form 10-Q, current report Current Report on Form 8-K or 6-K or other public filing with the Commission 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 Transfer Agent (or its successor) setting forth the number of shares of Common Stock Shares outstanding. For any reason at any time, upon the written request of the holder of the WarrantWarrantholder, the Company shall, within two one (21) Business DaysDay, confirm orally and in writing to such holder the Warrantholder the number of shares of Common Stock Shares 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 equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a Warrant Warrantholder may from time to time increase or decrease the Maximum Percentage applicable to such holder it to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this WarrantCompany.

Maximum Percentage. The Warrant Agent shall not effect the exercise of the holder’s Warrant, and such holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, (a) such person holder or (b) such holder (together with such personholder’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of 4.9910% or more (the “Holder Maximum Percentage”) or 20% or more (the “Holder Group Maximum Percentage”), respectively, of the shares of Common Stock outstanding Ordinary Shares issued immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock Ordinary Shares beneficially owned by such person and or its affiliates shall include the number of shares of Common Stock Ordinary Shares issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock Ordinary Shares that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of the Warrant, in determining the number of outstanding shares of Common Stockissued Ordinary Shares, the holder may rely on the number of outstanding shares of Common Stock issued Ordinary Shares as reflected in (1) the Company’s most recent annual report Annual Report on Form 1020-KF, quarterly report Current Report on Form 10-Q, current report on Form 86-K or other public filing with the Securities and Exchange Commission (the “Commission”) as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or Computershare Inc. and Computershare Trust Company, N.A., jointly, in their capacity as the transfer agent for the Ordinary Shares (the “Transfer Agent (or its successorAgent”) setting forth the number of shares of Common Stock outstandingOrdinary Shares issued. For any reason at any time, upon the written request of the holder of the Warrant, the Company shall, within two (2) Business Days, confirm orally and in writing to such holder the number of shares of Common Stock Ordinary Shares then outstandingissued. In any case, the number of outstanding shares of Common Stock issued Ordinary Shares shall be determined after giving effect to the conversion or exercise of equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding shares of Common Stock issued Ordinary Shares was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.

Maximum Percentage. The Warrant Agent A holder of Warrants may notify the Company in writing in the event it elects to be subject to the provisions contained in this Section 3.3.5. No holder of Warrants shall be subject to this Section 3.3.5 unless it makes such election. If election is made by a holder, the Company shall not effect the exercise of the holder’s this Warrant, and such holder shall not have the right to exercise such this Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, ) would beneficially own in excess of 4.99% nine and eight-tenths percent (9.8%) (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the this Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that which would be issuable upon (x) exercise of the remaining, unexercised portion of the this Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determinationamended. For purposes of the this Warrant, in determining the number of outstanding shares of Common Stock, the holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent annual report on Form 10-K, quarterly report on Form 10-Q, current report on Form 8-K or other public filing with the Commission SEC as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Transfer Agent (or its successor) setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written or oral request of the holder of the Warrantholder, the Company shall, shall within two (2) Business Days, business days confirm orally and in writing to such 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 equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, provided that any such increase shall will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this WarrantCompany.

Maximum Percentage. The Warrant Agent Notwithstanding anything to the contrary set forth herein, the Corporation shall not effect the exercise any conversion of the holder’s WarrantSeries A Preferred Stock, and such holder no Holder shall not have the right to exercise such Warrantconvert any Series A Preferred Stock, to the extent that after giving effect to such exerciseconversion, the beneficial owner of such person shares (together with such person’s Person's affiliates)) would have acquired, through conversion of Series A Preferred Stock or otherwise, beneficial ownership of a number of shares of Common Stock that exceeds 9.99% (the "Maximum Percentage") of the number of shares of Common Stock outstanding immediately after giving effect to such conversion. The Corporation shall not give effect to any voting rights of the Series A Preferred Stock, and any Holder shall not have the right to exercise voting rights with respect to any Series A Preferred Stock pursuant hereto, to the Warrant Agent’s actual knowledge, extent that giving effect to such voting rights would result in such Holder (together with its affiliates) being deemed to beneficially own in excess of 4.99% (the “Maximum Percentage”) Percentage of the number of shares of Common Stock outstanding immediately after giving effect to such exercise, assuming such exercise as being equivalent to conversion. For purposes of the foregoing sentenceforegoing, the aggregate number of shares of Common Stock beneficially owned by such person a Person and its affiliates shall include the number of shares of Common Stock issuable upon exercise conversion of the Warrant Series A Preferred Stock with respect to which the determination of such sentence is being made, but shall exclude the number of shares of Common Stock that which would be issuable upon (xA) exercise conversion of the remaining, unexercised portion nonconverted shares of the Warrant Series A Preferred Stock beneficially owned by such person and Person or any of its affiliates and (yB) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates Corporation (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained hereinin this Section 7(i) beneficially owned by such Person or any of its affiliates. Except as set forth in the preceding sentence, for purposes of this paragraphSection 7(i), beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determinationamended. For purposes of the Warrantthis Section 7(i), in determining the number of outstanding shares of Common Stock, the holder a Holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s Corporation's most recent annual report on Form 10-K, quarterly report on Form 10-Q, current report on or Form 8-K or other public filing with the Commission K, as the case may be, (2) a more recent public announcement by the Company Corporation, or (3) any other notice by the Company Corporation or the Transfer Agent (or its successor) setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the Warrantany Holder, the Company shall, Corporation shall within two one (21) Business DaysDay following the receipt of such notice, confirm orally and in writing to any such holder 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 equity securities of the Company Corporation, including the Series A Preferred Stock, by the holder such Holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the CompanyCorporation, the holder of a Warrant Holder may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage not in excess of 9.99% specified in such notice; provided, however, that (i) any such increase shall will not be effective until the sixty-first (61st) day after such notice is delivered to the Company Corporation, and (ii) any such increase or decrease will apply only to the Holder providing such written notice and not to any other Holder. In the event that the Corporation cannot pay any portion of any dividend, distribution, grant or issuance hereunder (including pursuant to Sections 3, 5(b) or 8(f)) to a Holder solely by reason of this Section 7(i) (such shares, the "Limited Shares"), notwithstanding anything to the contrary contained herein, the Corporation shall not be required to pay cash in no event lieu of the payment that otherwise would have been made in such Limited Shares, but shall hold any such Limited Shares in abeyance for such Holder until such time, if ever, that the delivery of such Limited Shares shall not cause the Holder to exceed the Maximum Percentage exceed 9.99% of Percentage, at which time such Holder shall be delivered such Limited Shares to the shares of Common Stock outstanding immediately after giving effect to an exercise of a Warrantextent as if there had been no such limitation. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 3.3.7 7(i) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.

Maximum Percentage. The Warrant Agent Notwithstanding anything to the contrary, the Holder may notify the Company in writing in the event it elects to be subject to the provisions contained in this Section 2.4; however, no Holder shall be subject to this Section 2.4 unless such election is made. If the election is made by a Holder it shall do so by delivering the election notice in substantially the form of the election notice attached hereto, in which event, the Company shall not effect the exercise of the holderHolder’s Warrant, and such holder Holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant AgentCompany’s actual knowledge, would beneficially own in excess of 4.99% or 9.99% (as specified by the Holder) (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of the Warrant, in determining the number of outstanding shares of Common Stock, the holder Holder may rely on the number of outstanding shares of Common Stock as reflected in (1) 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 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 Transfer Agent (or its successor) setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the WarrantHolder, the Company shall, within two (2) Business Days, confirm orally and in writing to such holder 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 equity securities of the Company by the holder Holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a Warrant Holder may from time to time increase or decrease the Maximum Percentage applicable to such holder Holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this WarrantCompany.

Maximum Percentage. The Warrant Agent Company shall not effect the exercise of the holder’s this Warrant, and such holder the Holder shall not have the right to exercise this Warrant, and any such Warrantexercise shall be null and void and treated as if never made, to the extent that after giving effect to such exercise, such person the Holder (together with such personthe Holder’s affiliatesaffiliates (as defined in Rule 405 of the Securities Act)), to the Warrant AgentCompany’s actual knowledge, would beneficially own in excess of 4.9949.9% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person the Holder and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the this Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the this Warrant beneficially owned by such person the Holder and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of the this Warrant, in determining the number of outstanding shares of Common Stock, the holder Holder may rely on the number of outstanding shares of Common Stock as reflected in (1) 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 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 Transfer Agent (or its successor) setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the WarrantHolder, the Company shall, within two (2) Business Days, confirm orally and in writing to such holder the Holder the number of shares of Common Stock then outstanding. “Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of equity securities of the Company by the holder Holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. In the event that the issuance of shares of Common Stock to the Holder upon exercise of this Warrant results in the Holder and its affiliates 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 and its affiliates’ 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 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 reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such Excess Shares were voided and return to the Holder the Warrant Price paid by the Holder for the Excess Shares. By written notice to the Company, the holder Holder of a this Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder Holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company and provided, further, that the Maximum Percentage shall in no event shall exceed 49.9% prior to the Maximum Percentage exceed 9.99% termination of the shares of Common Stock outstanding immediately after giving effect to an exercise of a Warrant. The provisions of this paragraph shall be construed Tax Receivable Agreement, dated February 2, 2018, by and implemented in a manner otherwise than in strict conformity with the terms of this Section 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrantbetween Purple Innovation, Inc. and InnoHold, LLC.

Maximum Percentage. The Warrant Agent Holder may elect, by giving written notice to the Company, to be subject to the provisions contained in this Section 3(d); provided, Holder will not be subject to this Section 3(d) unless Holder affirmatively makes such election. If Holder elects to be subject to this Section 3(d), the Company shall not effect the exercise of the holder’s this Warrant, and such holder Holder shall not have the right to exercise such this Warrant, to the extent that after giving effect to such exercise, such person Holder (together with such personHolder’s affiliates), to the Warrant AgentCompany’s actual knowledge, would beneficially own in excess of 4.999.8% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person Holder and its Holder’s affiliates shall include the number of shares of Common Stock issuable upon exercise of the this Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (xi) exercise of the remaining, unexercised portion of the this Warrant beneficially owned by such person and its affiliates and (yii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person Holder and its Holder’s affiliates (including, without limitation, any convertible notes or convertible preferred stock shares or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of the this Warrant, in determining the number of outstanding shares of Common Stock, the holder Holder 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 U.S. Securities and Exchange Commission (the “SEC”) as the case may be, (2y) a more recent public announcement by the Company or (3z) any other notice by the Company or the Transfer Agent (or its successor) setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the WarrantHolder, the Company shall, within two (2) Business Daysbusiness days, confirm orally and in writing to such holder 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 equity securities of the Company by the holder Holder and its Holder’s affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a Warrant Holder may from time to time increase or decrease the Maximum Percentage applicable to such holder Holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) business day after such notice is delivered to the Company and in no event shall the Maximum Percentage exceed 9.99% of the shares of Common Stock outstanding immediately after giving effect to an exercise of a 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 3.3.7 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this WarrantCompany.

Maximum Percentage. The Warrant Agent shall not effect the exercise of the any holder’s Warrant, and such no holder shall not have the right to exercise such any Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of 4.999.9% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock shares or warrants) subject to a any limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Solely the holder of the Warrant shall determine the extent to which the Warrant is exercisable in accordance with this Section 3.3.7., and neither the Company nor the Transfer Agent shall have any obligation to verify or confirm the accuracy of such determination. For purposes of the Warrant, in determining the number of outstanding shares of Common Stock, the holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent annual report Annual Report on Form 10-K, quarterly report Quarterly Report on Form 10-Q, current report Current Report on Form 8-K or other public filing with the 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 Transfer Agent (or its successor) Agent, setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the Warrant, the Company shall, within two (2) Business Days, confirm orally and in writing to such holder the number of shares of Common Stock then outstanding. In any case, the number of issued and outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of equity securities of the Company by the holder and its affiliates since the date as of which such number of issued and outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other another percentage specified in such notice; provided, however, that (x) such percentage shall not exceed 19.99% and (y) unless such election is made in the relevant Subscription Agreement (as defined in the Indenture) any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company and in no event shall Company. In the Maximum Percentage exceed 9.99% case of any merger or consolidation of the shares of Common Stock outstanding immediately after giving effect to an exercise of a Warrant. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity Company with or into another entity, the terms first sentence of this Section 3.3.7 to correct this paragraph (3.3.5 shall not apply following the consummation of such merger or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrantconsolidation.