Common use of Alternative Payment Clause in Contracts

Alternative Payment. In the event that the Earnout Shares are in the aggregate a number of shares of Issuer Stock that would exceed the number of shares that the Issuer may issue under the applicable rules and regulations of NASDAQ or such other securities exchange on which the Issuer Stock then trades (the “Exchange Cap”), then, upon determination of the Earnout Amount in accordance with Sections 2 and 3, the Issuer shall issue to Recipient such maximum number of shares as would not cause the aggregate number of Issuer’s issued and outstanding shares to exceed the Exchange Cap (the “Maximum Issuable Shares”) and pay Recipients an amount in cash equal to the product of (a) the average of the 20 prior trading day closing prices of the Issuer and (b) the difference between the Earnout Shares and the Maximum Issuable Shares; provided that the foregoing shall not apply if the Issuer obtains the approval of its shareholders as required by the applicable rules and regulations of the NASDAQ or other applicable exchange for issuances of shares of common stock in excess of the Exchange Cap.