definiens: ( as defined in the Investor Rights Agreement ) . At the time of the Top - up Event, the Company will issue to the Subscriber anadditional number of Shares equal to the difference between twelve percent ( 12.0 % ) of the Company ’s then Fully Diluted Share Capital(defined below ), minus the Closing Shares ( as adjusted for any stock combination, stock split, stock dividend, recapitalization or other similartransaction effected after the Effective Date and through the Top - up Event ) ( such additional Shares being the ) . Forpurposes of this Agreement, the shall equal the sum of : ( x ) the number of issued and outstanding Shares as ofthe date and time of the Top - up Event ; and ( y ) the number of Shares issuable, as of the date and time of the Top - up Event, upon exercise orconversion of other equity securities of the Company or other securities or instruments that are convertible or exchangeable into equitysecurities of the Company ; but in all cases excluding from the calculation of the Fully Diluted Share Capital any securities included withinclauses ( b ), ( d ) and ( e ) in the definition of ( as defined in the Investor Rights Agreement ), except any Shares underlyingequity compensation awards outstanding as of the date of the Top - up Event shall be included in the Fully Diluted Share Capital . For theavoidance of doubt, in no instance shall both a Derivative Security ( as defined in the Investor Rights Agreement ) and the Shares actuallyissued upon the exercise or conversion of such Derivate Security be included in the Fully Diluted Share Capital