Common use of Maximum Percentage Clause in Contracts

Maximum Percentage. A holder of a Warrant may, by notification to the Company in writing, elect to be subject to a prohibition on exercises of Warrants by such holder that would result in such holder beneficially owning in excess of 9.8% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. No holder of a Warrant shall be subject to this Section 3.3.5 unless he, she or it makes such election. Upon notice to the Company that a holder of a Warrant makes such an election, the Company shall as soon as practicable notify the Warrant Agent of such election. If such election is made by a holder, the Warrant Agent shall not effect any exercise of such holder’s Warrant, and such holder shall not have the right to exercise any such Warrant, to the extent that after giving effect to such exercise, such holder (together with such holder’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of the Maximum Percentage of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentences, 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 Section 3.3.5, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the Warrant, in determining the number of outstanding shares of Common Stock, the Warrant Agent 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 “SEC”) setting forth the number of outstanding shares of Common Stock, (2) a more recent written public announcement by the Company or (3) any other notice by the Company 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 used to determine the number of shares of Common Stock constituting the Maximum Percentage 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.

Maximum Percentage. A holder The Company shall not effect the exercise of a Warrant maythis Warrant, by notification and the Registered Holder shall not have the right to exercise this Warrant, to the Company extent that after giving effect to such exercise, such person (together with such Registered Holder’s affiliates (as used herein as defined in writingRule 12b-2 under the Securities Exchange Act of 1934, elect as amended (the “Exchange Act”))), to be subject to a prohibition on exercises of Warrants by such holder that the Company’s actual knowledge, would result in such holder beneficially owning own in excess of 9.84.99% (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. No holder of a Warrant shall be subject to this Section 3.3.5 unless he, she or it makes such election. Upon notice to the Company that a holder of a Warrant makes such an election, the Company shall as soon as practicable notify the Warrant Agent of such election. If such election is made by a holder, the Warrant Agent shall not effect any exercise of such holder’s Warrant, and such holder shall not have the right to exercise any such Warrant, to the extent that after giving effect to such exercise, such holder (together with such holder’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of the Maximum Percentage of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentencessentence, 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 Section 3.3.5paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For the purposes of the this Warrant, in determining the number of outstanding shares of Common Stock, the Warrant Agent 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 “SECCommission”) setting forth ), as the number of outstanding shares of Common Stockcase may be, (2) a more recent written public announcement by the Company or (3) any other notice by the Company or the 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 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 used to determine the number of shares of Common Stock constituting the Maximum Percentage 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.

Maximum Percentage. A holder of a Warrant may, by notification to Registered Holder may notify the Company in writing, elect writing in the event it elects to be subject to a prohibition on exercises of Warrants by the provisions contained in this subsection 3.3(e); however, no such holder 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 such exercise, and such 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) would result in such holder beneficially owning own in excess of 9.8% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. No holder of a Warrant shall be subject to this Section 3.3.5 unless he, she or it makes such election. Upon notice to the Company that a holder of a Warrant makes such an election, the Company shall as soon as practicable notify the Warrant Agent of such election. If such election is made by a holder, the Warrant Agent shall not effect any exercise of such holder’s Warrant, and such holder shall not have the right to exercise any such Warrant, to the extent that after giving effect to such exercise, such holder (together with such holder’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of the Maximum Percentage of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentencessentence, 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 Section 3.3.5paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the WarrantAdvisor Warrants, in determining the number of outstanding shares of Common Stock, the Warrant Agent 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 (Commission, as the “SEC”) setting forth the number of outstanding shares of Common Stockcase may be, (2) a more recent written public announcement by the Company or (3) any other notice by the Company or the 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 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 used to determine the number of shares of Common Stock constituting the Maximum Percentage 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.

Maximum Percentage. A holder of a Warrant may, by notification to the Company in writing, elect to be subject to a prohibition on exercises of Warrants by such holder that would result in such holder beneficially owning in excess of 9.8% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. No holder of a Warrant shall be subject to this Section 3.3.5 unless he, she or it makes such election. Upon notice to the Company that a holder of a Warrant makes such an election, the Company shall as soon as practicable notify the Warrant Agent of such election. If such election is made by a holder, the The Warrant Agent shall not effect any the exercise of such the holder’s Warrant, and such holder shall not have the right to exercise any such Warrant, to the extent that after giving effect to such exercise, (a) such holder or (b) such holder (together with such holder’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess 10% or more (the “Holder Maximum Percentage”) or 20% or more (the “Holder Group Maximum Percentage”), respectively, of the Maximum Percentage of the shares of Common Stock outstanding Ordinary Shares issued immediately after giving effect to such exercise. For purposes of the foregoing sentencessentence, 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 Section 3.3.5paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the Warrant, in determining the number of outstanding shares of Common Stockissued Ordinary Shares, the Warrant Agent 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 “SECCommission”) setting forth as the number of outstanding shares of Common Stockcase may be, (2) a more recent written 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”) 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 used to determine the number of shares of Common Stock constituting the Maximum Percentage 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.

Maximum Percentage. A holder of a Warrant may, by notification to Holder may notify the Company in writing, elect writing in the event it elects to be subject to the provisions contained in this subsection 2.3.8; however, no Holder shall be subject to this subsection 2.3.8 unless he, she or it makes such election. If the election is made by a prohibition Holder on exercises such Holder’s signature page of Warrants by such holder Holder’s Subscription Agreement, the Company 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 Company’s actual knowledge, would result in such holder beneficially owning own in excess of 9.84.99% 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. No holder of a Warrant shall be subject to this Section 3.3.5 unless he, she or it makes such election. Upon notice to the Company that a holder of a Warrant makes such an election, the Company shall as soon as practicable notify the Warrant Agent of such election. If such election is made by a holder, the Warrant Agent shall not effect any exercise of such holder’s Warrant, and such holder shall not have the right to exercise any such Warrant, to the extent that after giving effect to such exercise, such holder (together with such holder’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of the Maximum Percentage of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentencessentence, 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 Section 3.3.5paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the Warrant, in determining the number of outstanding shares of Common Stock, the Warrant Agent 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 (as the “SEC”) setting forth the number of outstanding shares of Common Stockcase may be, (2) a more recent written public announcement by the Company or (3) any other notice by the Company 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 used to determine the number of shares of Common Stock constituting the Maximum Percentage 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.

Maximum Percentage. A The Warrant Agent shall not effect the exercise of any holder’s Warrant, and no holder of a Warrant mayshall have the right to exercise any Warrant, by notification to the Company in writingextent that after giving effect to such exercise, elect such person (together with such person’s affiliates), to be subject to a prohibition on exercises of Warrants by such holder that the Warrant Agent’s actual knowledge, would result in such holder beneficially owning own in excess of 9.89.9% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. No holder of a Warrant shall be subject to this Section 3.3.5 unless he, she or it makes such election. Upon notice to the Company that a holder of a Warrant makes such an election, the Company shall as soon as practicable notify the Warrant Agent of such election. If such election is made by a holder, the Warrant Agent shall not effect any exercise of such holder’s Warrant, and such holder shall not have the right to exercise any such Warrant, to the extent that after giving effect to such exercise, such holder (together with such holder’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of the Maximum Percentage of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentencessentence, 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 Section 3.3.5paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the Warrant, in determining the number of outstanding shares of Common Stock, the Warrant Agent 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 Securities and Exchange Commission (as the “SEC”) setting forth the number of outstanding shares of Common Stockcase may be, (2) a more recent written public announcement by the Company or (3) any other notice by the Company or the 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 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 used to determine the number of shares of Common Stock constituting the Maximum Percentage 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. In the case of any merger or consolidation of the Company with or into another entity, the first sentence of this Section 3.3.5 shall not apply following the consummation of such merger or consolidation.

Maximum Percentage. A holder of a Warrant may, by notification Notwithstanding anything to the contrary in this Certificate, in no event (including, for greater certainty, on expiry) shall the Company in writingissue, elect be required to issue or be subject deemed to have issued a prohibition on exercises of Warrants by such holder that would result in such holder beneficially owning in excess of 9.8% (the “Maximum Percentage”) of the shares number of Common Stock outstanding immediately after giving effect to such exercise. No holder of a Warrant shall be subject to this Section 3.3.5 unless he, she Shares upon exercise or it makes such election. Upon notice otherwise pursuant to the Company that a holder of a Warrant makes such an election, the Company shall as soon as practicable notify the Warrant Agent of such election. If such election is made by a holder, the Warrant Agent shall not effect any exercise of such 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 holder (the Holder together with such holder’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 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 sentencesthis 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 Section 3.3.51(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”). 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 Warrant Agent 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 U.S. Securities and Exchange Commission (Commission, as the “SEC”) setting forth the number of outstanding shares of Common Stockcase may be, (2y) a more recent written public announcement by the Company or (3z) any other written notice by the Company or its 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 used to determine the number of shares of Common Stock constituting the Maximum Percentage 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 reportedShares so issued by which the Holder’s and the other Attribution Parties’ aggregate beneficial ownership or control 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. By written notice The provisions of this paragraph shall be construed and implemented in strict conformity with the terms of this Section 1(e) to the Companyextent necessary to correct this paragraph (or any portion of this paragraph) which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 1(e) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of any and all Warrants. For the purposes of this Section 1(e), “Attribution Parties” shall mean, collectively, the holder of a Warrant may following persons and entities: (i) any investment vehicle, including, any funds, feeder funds or managed accounts, currently, or from time to time increase after the date hereof, directly or decrease 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 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 CompanyPercentage.

Maximum Percentage. A holder of a Warrant mayHolder may elect, by notification giving written notice to the Company in writingCompany, elect to be subject to a prohibition on exercises 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 Warrants by this Warrant, and Holder shall not have the right to exercise this Warrant, to the extent that after giving effect to such holder that exercise, Holder (together with such Holder’s affiliates), to the Company’s actual knowledge, would result in such holder beneficially owning own in excess of 9.8% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. No holder of a Warrant shall be subject to this Section 3.3.5 unless he, she or it makes such election. Upon notice to the Company that a holder of a Warrant makes such an election, the Company shall as soon as practicable notify the Warrant Agent of such election. If such election is made by a holder, the Warrant Agent shall not effect any exercise of such holder’s Warrant, and such holder shall not have the right to exercise any such Warrant, to the extent that after giving effect to such exercise, such holder (together with such holder’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of the Maximum Percentage of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentencessentence, 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 Section 3.3.5paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the this Warrant, in determining the number of outstanding shares of Common Stock, the Warrant Agent 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”) setting forth as the number of outstanding shares of Common Stockcase may be, (2y) a more recent written public announcement by the Company or (3z) any other notice by the Company 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 used to determine the number of shares of Common Stock constituting the Maximum Percentage 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.

Maximum Percentage. A holder of a Warrant may, by notification to Registered Holder may notify the Company in writing, elect writing in the event it elects to be subject to a prohibition on exercises of Warrants by the provisions contained in this subsection 3.3(e); however, no such holder 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 such exercise, and such 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) would result in such holder beneficially owning own in excess of 9.8% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. No holder of a Warrant shall be subject to this Section 3.3.5 unless he, she or it makes such election. Upon notice to the Company that a holder of a Warrant makes such an election, the Company shall as soon as practicable notify the Warrant Agent of such election. If such election is made by a holder, the Warrant Agent shall not effect any exercise of such holder’s Warrant, and such holder shall not have the right to exercise any such Warrant, to the extent that after giving effect to such exercise, such holder (together with such holder’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of the Maximum Percentage of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentencessentence, 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 Section 3.3.5paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the WarrantAdvisor Warrants, in determining the number of outstanding shares of Common Stock, the Warrant Agent 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 Securities and Exchange Commission (Commission, as the “SEC”) setting forth the number of outstanding shares of Common Stockcase may be, (2) a more recent written public announcement by the Company or (3) any other notice by the Company or the 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 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 used to determine the number of shares of Common Stock constituting the Maximum Percentage 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.

Maximum Percentage. A holder of a Warrant may, by notification Notwithstanding anything to the contrary set forth herein, the voting power attributable to any Preferred Share held by any Holder hereunder, shall be automatically reduced, as necessary, such that the aggregate voting power attributable to the Preferred Shares of such applicable Holder (and any other securities of the Company in writing, elect to be subject to a prohibition on exercises of Warrants then held by such holder that would result in such holder beneficially owning in excess Holder) or any of 9.8its Attribution Parties shall not exceed 19.99% of the voting power of the Company (the “Maximum Percentage”) ). For purposes of the foregoing sentence, the aggregate voting power of a Holder and its Attribution Parties shall include the number of shares of Common Stock outstanding immediately after giving Stock, Preferred Shares or other securities of the Company held by such Holder and all of its Attribution Parties that are entitled to vote on such matter pursuant to which this determination is being made. The Company shall not give effect to such exercise. No holder any voting rights of a Warrant shall be subject to this Section 3.3.5 unless he, she or it makes such election. Upon notice to the Company that a holder of a Warrant makes such an election, the Company shall as soon as practicable notify the Warrant Agent of such election. If such election is made by a holder, the Warrant Agent shall not effect any exercise of such holder’s WarrantPreferred Shares, and such holder any Holder shall not have the right to exercise voting rights with respect to any such WarrantPreferred Shares pursuant hereto, to the extent that after giving effect to such exercise, voting rights would result in such holder Holder (together with such holder’s affiliates), its Attribution Parties) being deemed to the Warrant Agent’s actual knowledge, would beneficially own be entitled to vote in excess of the Maximum Percentage of the shares voting power of Common Stock outstanding immediately after giving the Company. The provisions of this Section 4 shall be construed and implemented in a manner otherwise than in strict conformity to the extent necessary to correct this Section 4 or any portion thereof which may be defective or inconsistent with the intended voting limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such exerciselimitation. For purposes of the foregoing sentences, 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 The limitation contained herein. Except as set forth in the preceding sentence, for purposes of this Section 3.3.5, beneficial ownership shall herein may not be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the Warrant, in determining the number of outstanding shares of Common Stock, the Warrant Agent 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 “SEC”) setting forth the number of outstanding shares of Common Stock, (2) a more recent written public announcement waived by the Company or (3) any other notice Holder of Preferred Shares. 1 Insert quotient of $1,000 divided by the Company setting forth applicable Conversion Price (as defined in the number of shares of Common Stock outstanding. For any reason at any time, upon Existing Note (as defined in the written request Exchange Agreements)) as of the holder time of the Warrant, Exchange (as defined in 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 used to determine the number of shares of Common Stock constituting the Maximum Percentage 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.Exchange Agreements)

Maximum Percentage. A holder of a Warrant may, by notification to may notify the Company in writing, elect writing in the event it elects to be subject to a prohibition on exercises of Warrants by such holder that would result the provisions contained in such holder beneficially owning in excess of 9.8% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. No this subsection 3.3.5; however, no holder of a Warrant shall be subject to this Section subsection 3.3.5 unless he, she or it makes such election. Upon notice to If the Company that a holder of a Warrant makes such an election, the Company shall as soon as practicable notify the Warrant Agent of such election. If such election is made by a holder, the Warrant Agent shall not effect any cause the exercise of such the holder’s Warrant, and such holder shall not have the right to exercise any such Warrant, to the extent that after giving effect to such exercise, such holder person (together with such holderperson’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of 9.8% (the “Maximum Percentage Percentage”) of the shares of Common Stock Shares outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentencessentence, 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 Section 3.3.5paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the Warrant, in determining the number of outstanding shares of Common StockShares, the Warrant Agent 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 Securities and Exchange Commission (SEC as the “SEC”) setting forth the number of outstanding shares of Common Stockcase may be, (2) a more recent written public announcement by the Company or (3) any other notice by the Company or the Warrant Agent 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 used to determine the number of shares of Common Stock constituting the Maximum Percentage 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.

Maximum Percentage. A holder of a Registered Holder may notify the Warrant may, by notification to Agent in writing in the Company in writing, elect 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 prohibition on exercises Registered Holder, the Warrant Agent shall not effect the exercise of Warrants by the Registered 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 result in such holder beneficially owning own in excess of, at the election of the 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. No holder of a Warrant shall be subject to this Section 3.3.5 unless he, she or it makes such election. Upon notice to the Company that a holder of a Warrant makes such an election, the Company shall as soon as practicable notify the Warrant Agent of such election. If such election is made by a holder, the Warrant Agent shall not effect any exercise of such holder’s Warrant, and such holder shall not have the right to exercise any such Warrant, to the extent that after giving effect to such exercise, such holder (together with such holder’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of the Maximum Percentage of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentencessentence, 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 Section 3.3.5paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the Warrant, in determining the number of outstanding shares of Common Stock, the Warrant Agent 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 (as the “SEC”) setting forth the number of outstanding shares of Common Stockcase may be, (2) a more recent written public announcement by the Company or (3) any other notice by the Company or Continental Stock Transfer & Trust Company (the “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 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 used to determine the number of shares of Common Stock constituting the Maximum Percentage 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 CompanyWarrant Agent.

Maximum Percentage. A The Holder of a Warrant or Warrants may notify the Company in writing in the event it elects to be subject to the provisions contained in this Section 1.6; however, no holder of a Warrant may, by notification to the Company in writing, elect to or Warrants shall be subject to this Section 1.6 unless the Holder makes such election. If the election is made by a prohibition on exercises Holder, the Company shall not effect the exercise of Warrants by the Holder’s Warrant or Warrants, and such holder Holder shall not have the right to exercise such Warrant or Warrants, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Company’s actual knowledge, would result in such holder beneficially owning own in excess of 9.84.9% or 9.9% (as specified by the holder)(the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. No holder of a Warrant shall be subject to this Section 3.3.5 unless he, she or it makes such election. Upon notice to the Company that a holder of a Warrant makes such an election, the Company shall as soon as practicable notify the Warrant Agent of such election. If such election is made by a holder, the Warrant Agent shall not effect any exercise of such holder’s Warrant, and such holder shall not have the right to exercise any such Warrant, to the extent that after giving effect to such exercise, such holder (together with such holder’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of the Maximum Percentage of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentencessentence, 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 or 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 or 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 Section 3.3.5paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the WarrantWarrant or Warrants, in determining the number of outstanding shares of Common Stock, the Warrant Agent 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 made by the Company with the Securities and Exchange Commission (the “SECCommission”) setting forth as the number of outstanding shares of Common Stockcase may be, (2) a more recent written public announcement by the Company or (3) any other notice by the Company 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 WarrantWarrant or Warrants, 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 used to determine the number of shares of Common Stock constituting the Maximum Percentage 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 or Warrants 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.

Maximum Percentage. Notwithstanding anything to the contrary set forth herein, the Corporation shall not effect any conversion of Series A holder Convertible Preferred Stock, and no Holder shall have the right to convert any Series A Convertible Preferred Stock, to the extent that after giving effect to such conversion, the beneficial owner of such shares (together with such Person's affiliates) would have acquired, through conversion of Series A Convertible Preferred Stock or otherwise, beneficial ownership of a Warrant maynumber 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, by notification 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 Company in writing, elect extent that giving effect to be subject to a prohibition on exercises of Warrants by such holder that voting rights would result in such holder Holder (together with its affiliates) being deemed to beneficially owning own in excess of 9.8% (the “Maximum Percentage”) Percentage of the number of shares of Common Stock outstanding immediately after giving effect to such exercise. No holder of a Warrant shall be subject , assuming such exercise as being equivalent to this Section 3.3.5 unless he, she or it makes such election. Upon notice to the Company that a holder of a Warrant makes such an election, the Company shall as soon as practicable notify the Warrant Agent of such election. If such election is made by a holder, the Warrant Agent shall not effect any exercise of such holder’s Warrant, and such holder shall not have the right to exercise any such Warrant, to the extent that after giving effect to such exercise, such holder (together with such holder’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of the Maximum Percentage of the shares of Common Stock outstanding immediately after giving effect to such exerciseconversion. For purposes of the foregoing sentencesforegoing, 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 Section 3.3.56(i), beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the Warrantthis Section 6(i), in determining the number of outstanding shares of Common Stock, the Warrant Agent 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 K, as the Securities and Exchange Commission (the “SEC”) setting forth the number of outstanding shares of Common Stockcase may be, (2) a more recent written public announcement by the Company Corporation, or (3) any other notice by the Company Corporation or the 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 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 used to determine the number of shares of Common Stock constituting the Maximum Percentage 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 CompanyCorporation, 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 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, at which time such Holder shall be delivered such Limited Shares to the extent 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 6(i) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation.

Maximum Percentage. Notwithstanding anything to the contrary set forth herein, the Corporation shall not effect any conversion of Series A holder Preferred Stock, and no Holder shall have the right to convert any Series A Preferred Stock, to the extent that after giving effect to such conversion, the beneficial owner of such shares (together with such Person's affiliates) would have acquired, through conversion of Series A Preferred Stock or otherwise, beneficial ownership of a Warrant maynumber 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, by notification and any Holder shall not have the right to exercise voting rights with respect to any Series A Preferred Stock pursuant hereto, to the Company in writing, elect extent that giving effect to be subject to a prohibition on exercises of Warrants by such holder that voting rights would result in such holder Holder (together with its affiliates) being deemed to beneficially owning own in excess of 9.8% (the “Maximum Percentage”) Percentage of the number of shares of Common Stock outstanding immediately after giving effect to such exercise. No holder of a Warrant shall be subject , assuming such exercise as being equivalent to this Section 3.3.5 unless he, she or it makes such election. Upon notice to the Company that a holder of a Warrant makes such an election, the Company shall as soon as practicable notify the Warrant Agent of such election. If such election is made by a holder, the Warrant Agent shall not effect any exercise of such holder’s Warrant, and such holder shall not have the right to exercise any such Warrant, to the extent that after giving effect to such exercise, such holder (together with such holder’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of the Maximum Percentage of the shares of Common Stock outstanding immediately after giving effect to such exerciseconversion. For purposes of the foregoing sentencesforegoing, 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 Section 3.3.57(i), beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)amended. For purposes of the Warrantthis Section 7(i), in determining the number of outstanding shares of Common Stock, the Warrant Agent 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 K, as the Securities and Exchange Commission (the “SEC”) setting forth the number of outstanding shares of Common Stockcase may be, (2) a more recent written public announcement by the Company Corporation, or (3) any other notice by the Company Corporation or the 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 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 used to determine the number of shares of Common Stock constituting the Maximum Percentage 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 CompanyCorporation, 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 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, at which time such Holder shall be delivered such Limited Shares to the extent 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 7(i) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation.

Maximum Percentage. A holder The Company shall not effect the exercise of a Warrant maythis Warrant, by notification and the Holder shall not have the right to exercise this Warrant, and any such exercise shall be null and void and treated as if never made, to the Company extent that after giving effect to such exercise, the Holder (together with the Holder’s affiliates (as defined in writingRule 405 of the Securities Act)), elect to be subject to a prohibition on exercises of Warrants by such holder that the Company’s actual knowledge, would result in such holder beneficially owning own in excess of 9.849.9% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. No holder of a Warrant shall be subject to this Section 3.3.5 unless he, she or it makes such election. Upon notice to the Company that a holder of a Warrant makes such an election, the Company shall as soon as practicable notify the Warrant Agent of such election. If such election is made by a holder, the Warrant Agent shall not effect any exercise of such holder’s Warrant, and such holder shall not have the right to exercise any such Warrant, to the extent that after giving effect to such exercise, such holder (together with such holder’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of the Maximum Percentage of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentencessentence, 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 Section 3.3.5paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the this Warrant, in determining the number of outstanding shares of Common Stock, the Warrant Agent 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 (as the “SEC”) setting forth the number of outstanding shares of Common Stockcase may be, (2) a more recent written public announcement by the Company or (3) any other notice by the Company or the 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 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 used to determine the number of shares of Common Stock constituting the Maximum Percentage 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 CompanyCompany and provided, further, that the Maximum Percentage shall in no event exceed 49.9% prior to the termination of the Tax Receivable Agreement, dated February 2, 2018, by and between Purple Innovation, Inc. and InnoHold, LLC.

Maximum Percentage. A holder In the event that a Registered Holder of a Warrant mayWarrant, by notification to the Company in writingtogether with its affiliates, elect to be subject to a prohibition on exercises of Warrants by such holder that would result in such holder beneficially owning own in excess of 9.8% of the fully-diluted value of the Company (the “Maximum Percentage”) after exercise of such Registered Holder’s Warrant(s), the shares of Common Stock outstanding immediately after giving effect to such exercise. No holder of a Warrant shall be subject to this Section 3.3.5 unless he, she or it makes such election. Upon notice to Registered Holder may notify the Company that a holder of a Warrant makes it elects to cut back such an electionexercise, the Company shall as soon as practicable notify the Warrant Agent of such election. If such election is made by a holder, and the Warrant Agent shall not effect any exercise of such holder’s Warrant, and such holder shall not have the right to exercise any such Warrant, to Warrant held by the extent that after giving effect to such exercise, such holder (together with such holder’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own Registered Holder or its affiliates in excess of the Maximum Percentage of the shares of Common Stock outstanding immediately after giving effect to such exercisePercentage. For purposes of the foregoing sentencessentence, 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 Section 3.3.5paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the Warrant, in determining the number of outstanding shares of Common Stock, the Warrant Agent 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 Securities and Exchange Commission (SEC as the “SEC”) setting forth the number of outstanding shares of Common Stockcase may be, (2) a more recent written public announcement by the Company Company, or (3) any other notice by the Company or the 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 used to determine the number of shares of Common Stock constituting the Maximum Percentage 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.

Maximum Percentage. A holder of a Private Placement Warrant may, by notification to may notify the Company in writing, elect writing in the event it elects to be subject to the provisions contained in this subsection 3.3.5; however, no holder of a prohibition on exercises Private Placement 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 Warrants by the holder’s Private Placement Warrant, and such holder shall not have the right to exercise such Private Placement 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 result in such holder beneficially owning own in excess of 9.8% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. No holder of a Warrant shall be subject to this Section 3.3.5 unless he, she or it makes such election. Upon notice to the Company that a holder of a Warrant makes such an election, the Company shall as soon as practicable notify the Warrant Agent of such election. If such election is made by a holder, the Warrant Agent shall not effect any exercise of such holder’s Warrant, and such holder shall not have the right to exercise any such Warrant, to the extent that after giving effect to such exercise, such holder (together with such holder’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of the Maximum Percentage of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentencessentence, 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 Private Placement 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 Private Placement 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 limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this Section 3.3.5paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the Private Placement Warrant, in determining the number of outstanding shares of Common Stock, the Warrant Agent 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 Securities and Exchange Commission (as the “SEC”) setting forth the number of outstanding shares of Common Stockcase may be, (2) a more recent written 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”), 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 Private Placement Private Placement 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 used to determine the number of shares of Common Stock constituting the Maximum Percentage 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 Private Placement 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.

Maximum Percentage. A holder of a Warrant may, by notification to Warrants may notify the Company in writing, elect writing in the event it elects to be subject to a prohibition on exercises 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 this Warrant, and such holder shall not have the right to exercise this Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates) would result in such holder beneficially owning own in excess of nine and eight-tenths percent (9.8% %) (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. No holder of a Warrant shall be subject to this Section 3.3.5 unless he, she or it makes such election. Upon notice to the Company that a holder of a Warrant makes such an election, the Company shall as soon as practicable notify the Warrant Agent of such election. If such election is made by a holder, the Warrant Agent shall not effect any exercise of such holder’s Warrant, and such holder shall not have the right to exercise any such Warrant, to the extent that after giving effect to such exercise, such holder (together with such holder’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of the Maximum Percentage of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentencessentence, 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 Section 3.3.5paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)amended. For purposes of the this Warrant, in determining the number of outstanding shares of Common Stock, the Warrant Agent 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 (SEC as the “SEC”) setting forth the number of outstanding shares of Common Stockcase may be, (2) a more recent written public announcement by the Company or (3) any other notice by the Company or the Transfer Agent 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 used to determine the number of shares of Common Stock constituting the Maximum Percentage 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.

Maximum Percentage. A holder The Company shall not effect the exercise of a Warrant maythis Warrant, by notification and the Holder shall not have the right to exercise this Warrant, and any such exercise shall be null and void and treated as if never made, to the Company extent that after giving effect to such exercise, the Holder (together with the Holder’s affiliates (as defined in writingRule 405 of the Securities Act)), elect to be subject to a prohibition on exercises of Warrants by such holder that the Company’s actual knowledge, would result in such holder beneficially owning own in excess of 9.849.9% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. No holder of a Warrant shall be subject to this Section 3.3.5 unless he, she or it makes such election. Upon notice to the Company that a holder of a Warrant makes such an election, the Company shall as soon as practicable notify the Warrant Agent of such election. If such election is made by a holder, the Warrant Agent shall not effect any exercise of such holder’s Warrant, and such holder shall not have the right to exercise any such Warrant, to the extent that after giving effect to such exercise, such holder (together with such holder’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of the Maximum Percentage of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentencessentence, 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 Section 3.3.5paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the this Warrant, in determining the number of outstanding shares of Common Stock, the Warrant Agent 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 (as the “SEC”) setting forth the number of outstanding shares of Common Stockcase may be, (2) a more recent written public announcement by the Company or (3) any other notice by the Company or the 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 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 used to determine the number of shares of Common Stock constituting the Maximum Percentage 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 CompanyCompany and provided, further, that the Maximum Percentage shall in no event exceed 49.9% prior to the termination of the Tax Receivable Agreement, dated February 2, 2018, by and between Purple Innovation, Inc. and InnoHold, LLC.

Maximum Percentage. A holder In the event that a Registered Holder of a Warrant mayWarrant, by notification to the Company in writingtogether with its affiliates, elect to be subject to a prohibition on exercises of Warrants by such holder that would result in such holder beneficially owning own in excess of 9.8% of the fully-diluted value of the Company (the “Maximum Percentage”) after exercise of such Registered Holder’s Warrant(s), the shares of Common Stock outstanding immediately after giving effect to such exercise. No holder of a Warrant shall be subject to this Section 3.3.5 unless he, she or it makes such election. Upon notice to Registered Holder may notify the Company that a holder of a Warrant makes it elects to cut back such an electionexercise, the Company shall as soon as practicable notify the Warrant Agent of such election. If such election is made by a holder, and the Warrant Agent shall not effect any exercise of such holder’s Warrant, and such holder shall not have the right to exercise any such Warrant, to Warrant held by the extent that after giving effect to such exercise, such holder (together with such holder’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own Registered Holder or its affiliates in excess of the Maximum Percentage of the shares of Common Stock outstanding immediately after giving effect to such exercisePercentage. For purposes of the foregoing sentencessentence, 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 Section 3.3.5paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the Warrant, in determining the number of outstanding shares of Common Stock, the Warrant Agent 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 Securities and Exchange Commission (SEC as the “SEC”) setting forth the number of outstanding shares of Common Stockcase may be, (2) a more recent written public announcement by the Company Company, or (3) any other notice by the Company or the 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 used to determine the number of shares of Common Stock constituting the Maximum Percentage 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.

Maximum Percentage. A holder of a Warrant may, by notification to The Registered Holder may notify the Company in writing, elect writing in the event it elects to be subject to a prohibition on exercises 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 Warrants by the Warrant, and the Registered Holder shall not have the right to exercise such holder Warrant, to the extent that after giving effect to such exercise, the Registered Holder (together with the Registered Holder’s affiliates (as defined below)), to the Company’s actual knowledge, would result in such holder beneficially owning own in excess of 9.89.999% (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. No holder of a Warrant shall be subject to this Section 3.3.5 unless he, she or it makes such election. Upon notice to the Company that a holder of a Warrant makes such an election, the Company shall as soon as practicable notify the Warrant Agent of such election. If such election is made by a holder, the Warrant Agent shall not effect any exercise of such holder’s Warrant, and such holder shall not have the right to exercise any such Warrant, to the extent that after giving effect to such exercise, such holder (together with such holder’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of the Maximum Percentage of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentencessentence, 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 Section 3.3.5paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the Warrant, in determining the number of outstanding shares of Common Stock, the Warrant Agent 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 Securities and Exchange Commission (as the “SEC”) setting forth the number of outstanding shares of Common Stockcase may be, (2) a more recent written public announcement by the Company or (3) any other notice by the Company 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 used to determine the number of shares of Common Stock constituting the Maximum Percentage 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. The term “affiliate” shall have the meaning ascribed to such term in Rule 12b-2 under the Exchange Act (or any successor rule).

Maximum Percentage. A holder of a Warrant may, by notification to the The Company in writing, elect to be subject to a prohibition on exercises of Warrants by such holder that would result in such holder beneficially owning in excess of 9.8% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. No holder of a Warrant shall be subject to this Section 3.3.5 unless he, she or it makes such election. Upon notice to the Company that a holder of a Warrant makes such an election, the Company shall as soon as practicable notify the Warrant Agent of such election. If such election is made by a holder, the Warrant Agent shall not effect any the exercise of such holder’s Warrantall or a portion of the Warrants held by a Warrantholder, and such holder Warrantholder shall not have the right to exercise any all or a portion of such WarrantWarrants, to the extent that after giving effect to such exercise, such holder person (together with such holderperson’s affiliatesAffiliates), to the Warrant AgentCompany’s actual knowledge, would beneficially own in excess of 4.99% (the “Maximum Percentage Percentage”) of the shares of Common Stock Shares outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentencessentence, 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 Section 3.3.5paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)amended. For purposes of the Warrantthis Agreement, in determining the number of outstanding shares of Common StockShares, the Warrant Agent 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 Securities and Exchange Commission (Commission, as the “SEC”) setting forth the number of outstanding shares of Common Stockcase may be, (2) a more recent written public announcement by the Company or (3) any other notice by the Company 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 used to determine the number of shares of Common Stock constituting the Maximum Percentage 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.