At-Market Transaction. Notwithstanding Section 2(e)(i) above, the Exchange Cap shall not be applicable for any purposes of this Agreement and the transactions contemplated hereby, solely to the extent that (and only for so long as) the Average Price shall equal or exceed the Base Price (it being hereby acknowledged and agreed that the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all other times during the term of this Agreement, unless the stockholder approval referred to in Section 2(e)(i) is obtained).
At-Market Transaction. Notwithstanding Section 3.4(a) above, the Exchange Cap shall not be applicable for any purposes of this Agreement and the transactions contemplated hereby, solely to the extent that (and only for so long as) the Average Price shall equal or exceed the Base Price (it being hereby acknowledged and agreed that the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all other times during the term of this Agreement, unless the stockholder approval referred to in Section 3.4(a) is obtained). The parties acknowledge and agree that the Minimum Price used to determine the Base Price hereunder represents the lower of (i) the Nasdaq official closing price of the Common Stock on the Trading Market (as reflected on Xxxxxx.xxx) on the Trading Day immediately prior to the date of this Agreement and (ii) the average Nasdaq official closing price of the Common Stock on the Trading Market (as reflected on Xxxxxx.xxx) for the five (5) consecutive Trading Days ending on the Trading Day immediately prior to the date of this Agreement.
At-Market Transaction. Notwithstanding Section 2(f)(i) above, the Exchange Cap shall not be applicable for any purposes of this Agreement and the transactions contemplated hereby, solely to the extent that (and only for so long as) the Average Price shall equal or exceed the Base Price (it being hereby acknowledged and agreed that the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all other times during the term of this Agreement, unless the stockholder approval referred to in Section 2(f)(i) is obtained). The parties acknowledge and agree that the Signing Market Price used to determine the Base Price hereunder represents the lower of (i) the Nasdaq official closing price of the Common Stock on The Nasdaq Capital Market (as reflected on Xxxxxx.xxx) on the date of this Agreement and (ii) the average Nasdaq official closing price of the Common Stock on The Nasdaq Capital Market (as reflected on Xxxxxx.xxx) for the five (5) consecutive trading days ending on the date of this Agreement.
At-Market Transaction. Notwithstanding Section 2(f)(i) above and subject to the prior approval of the Nasdaq Capital Market or any other Principal Market on which the Common Stock may be listed or quoted (to the extent required), the Exchange Cap shall not be applicable for any purposes of this Agreement and the transactions contemplated hereby, solely to the extent that (and only for so long as) the Average Price shall equal or exceed the Base Price and in accordance with any other applicable rules of the Nasdaq Capital Market or any other Principal Market on which the Common Stock may be listed or quoted (it being hereby acknowledged and agreed that the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all other times during the term of this Agreement, unless the stockholder approval referred to in Section 2(f)(i) is obtained).
At-Market Transaction. Notwithstanding Section 2(e)(i) above and subject to the prior approval of the NYSE MKT or any other Principal Market on which the Common Stock may be listed or quoted (to the extent required), the Exchange Cap shall not be applicable for any purposes of this Agreement and the transactions contemplated hereby, solely to the extent that the issuances and sales of Common Stock pursuant to this Agreement are deemed to be at a price equal to or in excess of the greater of book or market value of the Common Stock as calculated in accordance with the applicable rules of the NYSE MKT or any other Principal Market on which the Common Stock may be listed or quoted (it being hereby acknowledged and agreed that the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all other times during the term of this Agreement, unless the stockholder approval referred to in Section 2(e)(i) is obtained).
At-Market Transaction. Notwithstanding Section 3.4(a) above, the Exchange Cap shall not be applicable for any purposes of this Agreement and the transactions contemplated hereby, solely to the extent that (and only for so long as) the Average Price shall equal or exceed the Base Price (it being hereby acknowledged and agreed that the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all other times during the term of this Agreement, unless the stockholder approval referred to in Section 3.4(a) is obtained). The parties acknowledge and agree that the Minimum Price used to determine the Base Price hereunder represents the lower of (i) the official closing price of the Common Stock on the Trading Market (as reflected on Xxxxxx.xxx) on the date of this Agreement and (ii) the average official closing price of the Common Stock on the Trading Market (as reflected on Xxxxxx.xxx) for the five (5) consecutive Trading Days ending on the date of this Agreement.
At-Market Transaction. Notwithstanding Section 3.3(a) above, the Exchange Cap shall not be applicable for any purpose of this Agreement and the transactions contemplated hereby, solely to the extent that (and only for so long as) the Average Price shall equal or exceed the Base Price (it being hereby acknowledged and agreed that the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all other times during the term of this Agreement, unless the stockholder approval referred to in Section 3.3(a) is obtained). Notwithstanding the foregoing, the Company may not deliver any VWAP Purchase Notice if the VWAP Purchase effected thereby would result in the Investor owning 19.99% of the voting power or number of shares of issued and outstanding combined Common Stock and Class V Common Stock, in each case, calculated in accordance with the applicable rules of the Principal Market. The parties acknowledge and agree that the Minimum Price used to determine the Base Price hereunder represents the lower of (i) the Nasdaq official closing price of the Common Stock on the Principal Market (as reflected on Xxxxxx.xxx) on the Trading Day immediately prior to the date of this Agreement and (ii) the average Nasdaq official closing price of the Common Stock on the Principal Market (as reflected on Xxxxxx.xxx) for the five (5) consecutive Trading Days ending on the Trading Day immediately prior to the date of this Agreement (the “Minimum Price”).
At-Market Transaction. Notwithstanding Section 2(f)(i) above and subject to the prior approval of the Nasdaq Capital Market or any other Principal Market on which the Common Stock may be listed or quoted (to the extent required), the Exchange Cap shall not be applicable for any purposes of this Agreement and the transactions contemplated hereby, solely to the extent that (and only for so long as) the Average Price shall equal or exceed the Base Price and in accordance with any other applicable rules of the Nasdaq Capital Market or any other Principal Market on which the Common Stock may be listed or quoted (it being hereby acknowledged and agreed that the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all other times during the term of this Agreement, unless the stockholder approval referred to in Section 2(f)(i) is obtained). “Base Price” means a price per Purchase Share equal to the sum of (i) the Signing Market Price and (ii) $0.1533 (subject to adjustment for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction that occurs on or after the date of this Agreement). “Signing Market Price” means $2.61, representing the lower of (i) the Nasdaq Official Closing Price of the Common Stock as reported on the Nasdaq Capital Market immediately preceding the date of this Agreement or (ii) the average of the Nasdaq Official Closing Prices of the Common Stock as reported on The Nasdaq Capital Market for the five (5) Business Days immediately preceding the signing of this Agreement.
At-Market Transaction. Notwithstanding Sections 4(z)(i) and (iii), the Exchange Cap Limitation shall not apply for any purposes of this Agreement and the transactions contemplated hereby to the extent that (and only for so long as) the Average Price (as defined below) shall equal or exceed the Minimum Price (as defined below) (it being hereby acknowledged and agreed that the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all other times during the term of this Agreement, unless Stockholder Approval is obtained). “Average Price” means a price per share of Common Stock (rounded to the nearest tenth of a cent) equal to the quotient obtained by dividing (A) the aggregate gross purchase price paid by the Buyers for the Notes purchased pursuant to this Agreement, by (B) the aggregate number of Conversion Shares Issued pursuant to this Agreement. “Minimum Price” means $4.7340, representing the lower of (1) the Nasdaq official closing price of the Common Stock on the Trading Market (as reflected on Nxxxxx.xxx) on the Trading Day immediately prior to the Subscription Date, or (2) the average Nasdaq official closing price of the Common Stock on the Trading Market (as reflected on Nxxxxx.xxx) for the five (5) consecutive Trading Days ending on the Trading Day immediately prior to the Subscription Date (subject to adjustment for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction that occurs on or after the Subscription Date).
At-Market Transaction. Notwithstanding Section 3.4(a) above, the Exchange Cap shall not be applicable to issuances and sales of Common Stock pursuant to this Agreement to the extent such issuances and sales of Common Stock are for cash at a price equal to or in excess of the Base Price. For purposes of this Agreement, “Base Price” shall mean a price per Share equal to the sum of (i) the Minimum Price and (ii) $0.04 (subject to adjustment for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction); “Minimum Price” shall mean the lower of: (i) the Official Closing Price immediately preceding the delivery by the Company of a VWAP Purchase Notice or an Intraday VWAP Purchase Notice (as applicable) under this Agreement and (ii) the average Official Closing Price for the five (5) consecutive Trading Days immediately preceding the delivery by the Company of a VWAP Purchase Notice or an Intraday VWAP Purchase Notice (as applicable) under this Agreement; and “Official Closing Price” shall mean: the official closing price on the Trading Market as reported to the Consolidated Tape immediately preceding the delivery by the Company of a VWAP Purchase Notice or an Intraday VWAP Purchase Notice (as applicable) under this Agreement (and as defined in Section 312.04(j) of the NYSE Listed Company Manual).
