Common use of Issuance Limitations Clause in Contracts

Issuance Limitations. Notwithstanding any other provision of this Certificate of Designations, at no time may the Corporation issue shares of Common Stock pursuant to this Certificate of Designations if the number of shares of Common Stock to be issued, (1) when aggregated with all other shares of Common Stock then beneficially (or deemed beneficially) owned by Holder, would result in Holder owning, on the date of such proposed issuance, more than 9.99% of all Common Stock outstanding as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder; or (2) with respect to Series C Preferred Stock if, when aggregated with all prior issuances of Common Stock pursuant to this Certificate of Designations, would equal more than 19.99% of outstanding Common Stock outstanding prior to the issuance of any Corporation securities pursuant to this Certificate of Designations, unless (a) the Corporation’s stockholders shall have approved the issuance of Common Stock in excess of such 19.99% limit in accordance with NASDAQ Listing Rule 5635(d) or (b) NASDAQ has provided a waiver of NASDAQ Listing Rule 5635(d) (“Approval”).

Issuance Limitations. Notwithstanding any other provision of this Certificate of Designations, at no time may the Corporation issue shares of Common Stock pursuant to this Certificate of Designations if the number of shares of Common Stock to be issued, (1) when aggregated with all other shares of Common Stock then beneficially (or deemed beneficially) owned by Holder, would result in Holder owning, on the date of such proposed issuance, more than 9.99% of all Common Stock outstanding as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder; or (2) with respect to Series C B-1 Preferred Stock if, when aggregated with all prior issuances of Common Stock pursuant to this Certificate of Designations, would equal more than 19.99% of outstanding Common Stock outstanding prior to the issuance of any Corporation securities pursuant to this Certificate of Designations, unless (a) the Corporation’s stockholders shall have approved the issuance of Common Stock in excess of such 19.99% limit in accordance with NASDAQ Listing Rule 5635(d) or (b) NASDAQ has provided a waiver of NASDAQ Listing Rule 5635(d) (“Approval”).