Common use of Exchange Cap Clause in Contracts

Exchange Cap. The Company shall not be obligated to issue any Conversion Shares, Dividend Shares, Warrant Shares or other shares of Common Stock to any Buyer pursuant to any of the Transaction Documents if the issuance of such shares of Common Stock would exceed that number of shares of Common Stock that the Company may issue to such Buyer without breaching the Company's obligations under the rules or regulations of the Principal Market of the Common Stock on the Issuance Date (including without limitation NASD Marketplace Rule 4350(i)), or any market or exchange where the Common Stock subsequently trades (the "EXCHANGE CAP"), except that such limitation shall not apply in the event that the Company (A) obtains the approval of its shareholders as required by the applicable rules of the Principal Market for issuances of Common Stock in excess of such amount or (B) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory to the holders of the Securities representing at least 50% of the shares of Common Stock underlying the Securities then outstanding. Until such approval is obtained, no Buyer shall be issued, upon exercise of any of its rights under the Transaction Documents, shares of Common Stock in an amount greater than the product of the Exchange Cap multiplied by a fraction, the numerator of which is the total number of shares of Common Stock underlying the Securities issued to such Buyer pursuant to this Agreement on the Closing Date and the denominator of which is the aggregate number of shares of Common Stock underlying all the Securities issued to all the Buyers pursuant to this Agreement on the Closing Date (with respect to each Purchaser, the "EXCHANGE CAP ALLOCATION"). In the event that any Buyer shall sell or otherwise transfer any of such Buyer's Warrants or Preferred Shares, the transferee shall be allocated a pro rata portion of such Buyer's Exchange Cap Allocation, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation allocated to such transferee. In the event that any holder of Warrants or Preferred Shares shall exercise all of such holder's rights under the Transaction Documents into a number of shares of Common Stock which, in the aggregate, is less than such holder's Exchange Cap Allocation, then the difference between such holder's Exchange Cap Allocation and the number of shares of Common Stock actually issued to such holder shall be allocated to the respective Exchange Cap Allocations of the remaining holders of Securities on a pro rata basis in proportion to the shares of Common Stock underlying the Securities then held by each such holder.

Exchange Cap. The Company shall hereby agrees not be obligated to issue any Conversion Shares, Dividend Shares, Warrant Shares or other shares of Common Stock to any Buyer pursuant to any upon the exercise of the Transaction Documents Note if the issuance of such shares of Common Stock would exceed that 14,747,065 shares of Common Stock (19.99% of the shares of Common Stock outstanding as of as of the date hereof), which is the aggregate number of shares of Common Stock that which the Company may issue to such Buyer without breaching the Company's ’s obligations under the rules or regulations of the Principal Nasdaq Capital Market of the Common Stock on the Issuance Date (including without limitation NASD Marketplace Rule 4350(i)), or any market or exchange where the Common Stock subsequently trades (the "EXCHANGE CAP"“Principal Market”) (the number of shares which may be issued without violating such rules and regulations, the “Exchange Cap”), except that such limitation shall not apply in the event that the Company (A) obtains the approval of its shareholders stockholders as required by the applicable rules of the Principal Market for issuances of shares of Common Stock in excess of such amount or (B) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory to the holders of the Securities representing at least 50% of the shares of Common Stock underlying the Securities then outstandingHolder. Until such approval or such written opinion is obtained, no Buyer the Holder (together with any subsequent holder of any of the Note, collectively, the “Buyers” and each a “Buyer”) shall be issuedissued in the aggregate, upon exercise of any of its rights under the Transaction Documents, Note shares of Common Stock in an amount greater than the product of (i) the Exchange Cap as of the Issuance Date multiplied by a fraction, (ii) the numerator quotient of which is the total number of shares of Common Stock underlying the Securities issued to such Buyer pursuant to this Agreement on the Closing Date and the denominator of which is (1) the aggregate number of shares of Common Stock underlying all the Securities issued to all the Buyers initially exercisable pursuant to this Agreement the Note held by such Buyer without regard for any limitations on exercise set forth therein (as measured as of the Closing Date (as defined in the Securities Purchase Agreement)) divided by (2) the aggregate number of shares of Common Stock initially exercisable pursuant to the Note held by all Buyers without regard to any limitations on exercise set forth therein (as measured as of the Closing Date) (with respect to each PurchaserBuyer, the "EXCHANGE CAP ALLOCATION"“Exchange Cap Allocation”). In the event that any Buyer shall sell or otherwise transfer any of such Buyer's Warrants or Preferred Shares’s Note, the transferee shall be allocated a pro rata portion of such Buyer's ’s Exchange Cap AllocationAllocation with respect to such portion of such Note so transferred, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation so allocated to such transferee. In Upon exercise in full of the event that any holder of Warrants or Preferred Shares shall exercise all of such holder's rights under the Transaction Documents into a number of shares of Common Stock whichNote, in the aggregate, is less than such holder's Exchange Cap Allocation, then the difference (if any) between such holder's ’s Exchange Cap Allocation and the number of shares of Common Stock actually issued to such holder upon such holder’s exercise in full of such Note shall be allocated allocated, to the respective Exchange Cap Allocations of the remaining holders of Securities Note on a pro rata basis in proportion to the shares of Common Stock underlying the Securities Note then held by each such holderholder of Note. In the event that after the Stockholder Meeting Deadline (as defined in the Amendment) the Company is then prohibited from issuing any shares of Common Stock pursuant to this paragraph (the “Exchange Cap Shares”), in lieu of issuing and delivering such Exchange Cap Shares to the Holder, the Company shall pay cash to the Holder in exchange for the cancellation of such portion of this Warrant exercisable into such Exchange Cap Shares (the “Exchange Cap Payment Amount”) at a price equal to the sum of (x) the product of (A) such number of Exchange Cap Shares and (B) the greatest Closing Sale Price (as defined in the Note) of the Common Stock on any Trading Day (as defined in the Note) during the period commencing on the date the Holder delivers the applicable Exercise Notice (as defined in the Note) with respect to such Exchange Cap Shares to the Company and ending on the date of such payment under this paragraph and (y) to the extent the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of Exchange Cap Shares, any brokerage commissions and other out-of-pocket expenses, if any, of the Holder incurred in connection therewith.

Exchange Cap. The Notwithstanding anything to the contrary set forth in this Warrant, the Company shall not be obligated to issue any Conversion SharesOrdinary Shares upon exercise of this Warrant, Dividend Shares, and the holder of this Warrant Shares or other shall not have the right to receive upon exercise of any shares of Common Stock to any Buyer pursuant to any of the Transaction Documents this Warrant, if the issuance of such shares of Common Stock Ordinary Shares would exceed that the aggregate number of shares of Common Stock that Ordinary Shares which the Company may issue to such Buyer upon exercise or conversion, as applicable, of this Warrant and the Agreement Warrants without breaching the Company's obligations under the rules or regulations of the Principal Market Nasdaq, which aggregate number equals 19.99% of the Common Stock number of shares outstanding on the Issuance Closing Date (including without limitation NASD Marketplace Rule 4350(i)), or any market or exchange where the Common Stock subsequently trades (the "EXCHANGE CAPExchange Cap"), except that such limitation shall not apply in the event that the Company (A) obtains the approval of its shareholders stockholders as required by the applicable rules of the Principal Market Nasdaq for issuances of Common Stock Ordinary Share in excess of such amount or (B) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory to the holders of the Securities representing at least 50% of the shares of Common Stock underlying the Securities then outstandingRequired Holders. Until such approval or written opinion is obtained, no Buyer none of the Holders shall be issuedissued in the aggregate, upon exercise of any of its rights under this Warrant or the Transaction DocumentsAgreement Warrants, shares of Common Stock Ordinary Shares in an amount greater than the product of the Exchange Cap multiplied by a fraction, the numerator of which is the total number amount of shares Ordinary Shares issuable to the Holder upon exercise of Common Stock underlying the Securities issued to such Buyer pursuant to this Agreement on the Closing Date Warrant and the denominator of which is the aggregate number total amount of shares of Common Stock underlying all the Securities issued Ordinary Shares issuable to all Holders upon exercise of this Warrant and the Buyers pursuant to this Agreement on the Closing Date Warrants (with respect to each PurchaserHolder, the "EXCHANGE CAP ALLOCATIONExchange Cap Allocation"). In the event that any Buyer Holder shall sell or otherwise transfer any of such Buyer's Warrants or Preferred SharesHolder’s Warrant, the transferee shall be allocated a pro rata portion of such Buyer's Holder’s Exchange Cap Allocation, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation allocated to such transferee. In the event that any holder of Warrants or Preferred Shares this Warrant shall exercise all of such holder's rights under the Transaction Documents Warrant into a number of shares of Common Stock Ordinary Shares which, in the aggregate, is less than such holder's Exchange Cap Allocation, then the difference between such holder's Exchange Cap Allocation and the number of shares of Common Stock Ordinary Shares actually issued to such holder shall be allocated to the respective Exchange Cap Allocations of the remaining holders of Securities this Warrant on a pro rata basis in proportion to the aggregate exercise price of shares of Common Stock underlying the Securities this Warrant then held by each such holder.

Exchange Cap. The At any time prior to the time the Company shall not be obligated to issue any Conversion Shares, Dividend Shares, Warrant Shares or other have obtained stockholder approval for the issuance of shares of Common Stock to any Buyer pursuant to the August Notes and the August Warrants pursuant to rules related to the aggregate of offerings under NASDAQ Listing Rule 5635(d) (the “Stockholder Approval”), the Company shall not issue any shares of the Transaction Documents Common Stock upon exercise of any Rights if the issuance of such shares of Common Stock (taken together with any shares of Common Stock issuable upon exercise of the Warrants (as defined in the August Notes) (the “August Warrants”) or upon conversion of the August Notes or otherwise pursuant to the terms of the August Notes or upon conversion of the senior convertible note in the aggregate principal amount of $697,000 issued to the Holder on October 1, 2017 (the “October 2017 Note”) would exceed that the aggregate number of shares of Common Stock that which the Company may issue upon exercise or conversion of the Rights, the August Notes, the August Warrants, the October 2017 Note or otherwise pursuant to such Buyer the terms of the Rights, the August Notes, the August Warrants or the October 2017 Note without breaching the Company's obligations ’s obligations, if any, under the rules or regulations of the Principal Market (the number of shares which may be issued without violating such rules and regulations (with the aggregate number of shares of Common Stock on outstanding for the Issuance Date (including without limitation NASD Marketplace Rule 4350(i)purposes of such calculation measured as of August 14, 2017), or any market or exchange where including rules related to the Common Stock subsequently trades (aggregate of offerings under NASDAQ Listing Rule 5635(d), as applicable, the "EXCHANGE CAP"“Pre-August Approval Exchange Cap”), except that such limitation shall not apply in the event that the Company (A) obtains the approval of its shareholders stockholders as required by the applicable rules of the Principal Market for issuances of shares of Common Stock upon exercise of the Rights in excess of the Pre-August Approval Exchange Cap or (B) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory to the Holder. The Company represents and warrants to the Holder that the Pre-August Approval Exchange Cap is 1,416,025 shares of Common Stock (or 1,183,691 shares of Common Stock after giving effect to the issuance of 232,334 shares of Common Stock upon conversion in full of the October 2017 Note), without giving effect to the issuance of the Exchange Securities. At any time on or after the time the Company shall have obtained the Stockholder Approval, the Company shall not issue any shares of Common Stock upon exercise of any Rights if the issuance of such shares of Common Stock would exceed the aggregate number of shares of Common Stock which the Company may issue upon exercise or conversion of the Rights or otherwise pursuant to the terms of the Rights without breaching the Company’s obligations, if any, under the rules or regulations of the Principal Market (the number of shares which may be issued without violating such rules and regulations (with the aggregate number of shares of Common Stock outstanding for the purposes of such calculation measured as of October 20, 2017), including rules related to the aggregate of offerings under NASDAQ Listing Rule 5635(d), as applicable, the “Post-August Approval Exchange Cap”), except that such limitation shall not apply in the event that the Company (A) obtains the approval of its stockholders as required by the applicable rules of the Principal Market for issuances of shares of Common Stock upon exercise of the Rights in excess of such amount or (B) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory to the holders of Holder. The Company represents and warrants to the Securities representing at least 50% of Holder that the Post-August Approval Exchange Cap is 1,925,087 (or 1,692,753 shares of Common Stock underlying after giving effect to the Securities then outstanding. Until such approval is obtained, no Buyer shall be issued, upon exercise issuance of any of its rights under the Transaction Documents, 232,334 shares of Common Stock upon conversion in an amount greater than full of the product October 2017 Note), without giving effect to the issuance of the Exchange Cap multiplied by a fraction, the numerator of which is the total number of shares of Common Stock underlying the Securities issued to such Buyer pursuant to this Agreement on the Closing Date and the denominator of which is the aggregate number of shares of Common Stock underlying all the Securities issued to all the Buyers pursuant to this Agreement on the Closing Date (with respect to each Purchaser, the "EXCHANGE CAP ALLOCATION"). In the event that any Buyer shall sell or otherwise transfer any of such Buyer's Warrants or Preferred Shares, the transferee shall be allocated a pro rata portion of such Buyer's Exchange Cap Allocation, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation allocated to such transferee. In the event that any holder of Warrants or Preferred Shares shall exercise all of such holder's rights under the Transaction Documents into a number of shares of Common Stock which, in the aggregate, is less than such holder's Exchange Cap Allocation, then the difference between such holder's Exchange Cap Allocation and the number of shares of Common Stock actually issued to such holder shall be allocated to the respective Exchange Cap Allocations of the remaining holders of Securities on a pro rata basis in proportion to the shares of Common Stock underlying the Securities then held by each such holderSecurities.

Exchange Cap. The Notwithstanding anything to the contrary set forth in this Warrant, the Company shall not be obligated to issue any Conversion Shares, Dividend Shares, Warrant Shares or other shares of Common Stock upon exercise of this Warrant, and the holder of this Warrant shall not have the right to receive upon exercise of any Buyer pursuant to any shares of the Transaction Documents this Warrant, if the issuance of such shares of Common Stock would exceed that the aggregate number of shares Shares of Common Stock that which the Company may issue to such Buyer upon exercise or conversion, as applicable, of this Warrant and the Agreement Warrants without breaching the Company's obligations under the rules or regulations of the Principal Market Nasdaq, which aggregate number equals 19.99% of the Common Stock number of shares outstanding on the Issuance Closing Date (including without limitation NASD Marketplace Rule 4350(i)), or any market or exchange where the Common Stock subsequently trades (the "EXCHANGE CAPExchange Cap"), except that such limitation shall not apply in the event that the Company (A) obtains the approval of its shareholders stockholders as required by the applicable rules of the Principal Market Nasdaq for issuances of Common Stock in excess of such amount or (B) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory to the holders of the Securities representing at least 50% of the shares of Common Stock underlying the Securities then outstandingRequired Holders. Until such approval or written opinion is obtained, no Buyer none of the Holders shall be issuedissued in the aggregate, upon exercise of any of its rights under this Warrant or the Transaction DocumentsAgreement Warrants, shares of Common Stock in an amount greater than the product of the Exchange Cap multiplied by a fraction, the numerator of which is the total number amount of shares of Common Stock underlying issuable to the Securities issued to such Buyer pursuant to Holder upon exercise of this Agreement on the Closing Date Warrant and the denominator of which is the aggregate number total amount of shares of Common Stock underlying all the Securities issued issuable to all Holders upon exercise of this Warrant and the Buyers pursuant to this Agreement on the Closing Date Warrants (with respect to each PurchaserHolder, the "EXCHANGE CAP ALLOCATIONExchange Cap Allocation"). In the event that any Buyer Holder shall sell or otherwise transfer any of such Buyer's Warrants or Preferred SharesHolder’s Warrant, the transferee shall be allocated a pro rata portion of such Buyer's Holder’s Exchange Cap Allocation, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation allocated to such transferee. In the event that any holder of Warrants or Preferred Shares this Warrant shall exercise all of such holder's rights under the Transaction Documents Warrant into a number of shares of Common Stock which, in the aggregate, is less than such holder's Exchange Cap Allocation, then the difference between such holder's Exchange Cap Allocation and the number of shares of Common Stock actually issued to such holder shall be allocated to the respective Exchange Cap Allocations of the remaining holders of Securities this Warrant on a pro rata basis in proportion to the aggregate exercise price of shares of Common Stock underlying the Securities this Warrant then held by each such holder.

Exchange Cap. The Company shall not be obligated to issue any Conversion Shares, Dividend Shares, Warrant Shares or other shares of Common Stock to any Buyer pursuant to any upon the exercise of the Transaction Documents this Warrant if the issuance of such shares of Common Stock taken together with each prior issuance of Conversion Shares (as defined in the Purchase Agreement) and any prior issuance of shares of Common Stock upon exercise of the Warrants, collectively, would exceed that the aggregate number of shares of Common Stock that which the Company may issue to such Buyer upon conversion of the Notes or exercise of the Warrants without breaching the Company's ’s obligations under the rules or regulations of the Principal Market (as defined in the Notes) (the number of the shares of Common Stock on which may be issued without violating such rules and regulations, including rules related to the Issuance Date (including without limitation NASD Marketplace aggregate of offerings under NASDAQ Listing Rule 4350(i)5635(d), or any market or exchange where the Common Stock subsequently trades (the "EXCHANGE CAP"“Exchange Cap”), except that such limitation shall not apply in the event that the Company (A) obtains the approval of its shareholders as required by the applicable rules of the Principal Market for issuances of Common Stock in excess of such amount Shareholder Approval or (B) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory to the holders of the Securities representing at least 50% of the shares of Common Stock underlying the Securities then outstandingHolder. Until such approval or such written opinion is obtained, no Buyer holder of Warrants (each, a “Warrant Holder”) shall be issuedissued in the aggregate, upon conversion or exercise (as the case may be) of any Notes or any of its rights under the Transaction DocumentsWarrants or otherwise pursuant to the terms of the Notes or the Warrants, shares of Common Stock in an amount greater than the product of (i) the Exchange Cap as of the Initial Exercise Date multiplied by a fraction, (ii) the numerator quotient of which is (1) the total number original principal amount of shares of Common Stock underlying the Securities Notes issued to such Buyer the Warrant Holder divided by (2) the aggregate original principal amount of all Notes issued to the Purchasers pursuant to this Agreement on the Closing Date and the denominator of which is the aggregate number of shares of Common Stock underlying all the Securities issued to all the Buyers pursuant to this Purchase Agreement on the Closing Date (with respect to each PurchaserWarrant Holder, the "EXCHANGE CAP ALLOCATION"“Exchange Cap Allocation”). In the event that any Buyer Warrant Holder shall sell or otherwise transfer any of such Buyer's Warrants or Preferred SharesWarrant Holder’s Warrants, the transferee shall be allocated a pro rata portion of such Buyer's Warrant Holder’s Exchange Cap AllocationAllocation with respect to such portion of such Warrants so transferred, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation so allocated to such transferee. In the event that any holder Upon conversion and exercise in full of Warrants or Preferred Shares shall exercise all of such holder's rights under the Transaction Documents into a number of shares of Common Stock whichWarrant Holder’s Notes and Warrants, in the aggregate, is less than such holder's Exchange Cap Allocation, then the difference (if any) between such holder's Warrant Holder’s Exchange Cap Allocation and the number of shares of Common Stock actually issued to such holder Warrant Holder upon such Warrant Holder’s conversion in full of such Notes and exercise in full of such Warrants shall be allocated allocated, to the respective Exchange Cap Allocations of the remaining holders of Securities Notes and Warrants on a pro rata basis in proportion to the shares of Common Stock underlying the Securities Notes and Warrants then held by each such holderholder of Notes and Warrants. If, due to the Company’s failure to obtain Shareholder Approval, the Company is prohibited from issuing any shares of Common Stock pursuant to this Section 2(f) (the “Exchange Cap Shares”), the Company shall pay cash in exchange for the cancellation of such portion of this Warrant exercisable into such Exchange Cap Shares (the “Exchange Cap Payment Amount”) at a price equal to the sum of (x) the product of (A) such number of Exchange Cap Shares and (B) the greatest Closing Sale Price (as defined in the Notes) of the Common Stock on any Trading Day during the period commencing on the date the Holder delivers the applicable Notice of Exercise with respect to such Exchange Cap Shares to the Company and ending on the date of such payment under this Section 2(f) and (y) to the extent the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of Exchange Cap Shares, any Buy-In amount (as defined in Section 2(d)(iv)), any brokerage commissions and other out-of-pocket expenses, if any, of the Holder incurred in connection therewith (collectively, the “Exchange Cap Shares Cancellation Amount”).

Exchange Cap. The Company shall not be obligated to issue any Conversion Shares, Dividend Shares, Warrant Shares or other shares of Common Stock to any Buyer pursuant to any upon the exercise of the Transaction Documents this Warrant if the issuance of such shares of Common Stock taken together with each prior issuance of Common Shares (as defined in the Securities Purchase Agreement) under the Securities Purchase Agreement and any prior issuance of shares of Common Stock upon exercise of the SPA Warrants, collectively, would exceed that the aggregate number of shares of Common Stock that which the Company may issue to such Buyer without breaching the Company's obligations under the rules or regulations of the Principal Market of the Common Stock on the Issuance Date (including without limitation NASD Marketplace Rule 4350(i)), or any market or exchange where the Common Stock subsequently trades (the "EXCHANGE CAP"number of shares which may be issued without violating such rules and regulations, the “Exchange Cap”), except that such limitation shall not apply in the event that the Company (A) obtains the approval of its shareholders stockholders as required by the applicable rules of the Principal Market for issuances of shares of Common Stock in excess of such amount or (B) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory to the holders of the Securities representing at least 50% of the shares of Common Stock underlying the Securities then outstandingHolder. Until such approval or such written opinion is obtained, no Buyer holder of Warrants (each, a “SPA Warrant Holder”) shall be issuedissued in the aggregate, upon exercise of any of its rights under the Transaction DocumentsSPA Warrants, shares of Common Stock in an amount greater than the product of (i) the Exchange Cap as of the Issuance Date multiplied by a fraction, (ii) the numerator quotient of which is the total number of shares of Common Stock underlying the Securities issued to such Buyer pursuant to this Agreement on the Closing Date and the denominator of which is (1) the aggregate number of shares Common Shares issued to such SPA Warrant Holder as of the Closing Date (as defined in the Securities Purchase Agreement) divided by (2) the aggregate number of Common Stock underlying all the Securities Shares issued to all the Buyers pursuant to this Agreement on SPA Warrant Holders as of the Closing Date (with respect to each PurchaserSPA Warrant Holder, the "EXCHANGE CAP ALLOCATION"“Exchange Cap Allocation”); provided, that the Exchange Cap Allocation shall be allocated among the Holder’s SPA Warrants (unless the Company and the Holder mutually agree otherwise) as follows: first, to any shares of Common Stock issued or issuable under the Series C Warrants (without regards to any limitations on exercise set forth in Section 1(f)(i) thereof), second, to any shares of Common Stock issued or issuable under the Series B-1 Warrants (without regards to any limitations on exercise set forth in Section 1(f)(i) thereof), third, to any shares of Common Stock issued or issuable under the Series B-2 Warrants (without regards to any limitations on exercise set forth in Section 1(f)(i) thereof) and fourth, to any shares of Common Stock issued or issuable under the Series A Warrants (without regards to any limitations on exercise set forth in Section 1(f)(i) thereof). In the event that any Buyer SPA Warrant Holder shall sell or otherwise transfer any of such Buyer's Warrants or Preferred SharesSPA Warrant Holder’s SPA Warrants, the transferee shall be allocated a pro rata portion of such Buyer's SPA Warrant Holder’s Exchange Cap AllocationAllocation with respect to such portion of such SPA Warrants so transferred, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation so allocated to such transferee. In the event that any holder Upon exercise in full of Warrants or Preferred Shares shall exercise all of such holder's rights under the Transaction Documents into a number of shares of Common Stock whichan SPA Warrant Holder’s Warrants, in the aggregate, is less than such holder's Exchange Cap Allocation, then the difference (if any) between such holder's SPA Warrant Holder’s Exchange Cap Allocation and the number of shares of Common Stock actually issued to such holder SPA Warrant Holder upon such SPA Warrant Holder’s exercise in full of such SPA Warrants shall be allocated allocated, to the respective Exchange Cap Allocations of the remaining holders SPA Warrant Holders of Securities SPA Warrants on a pro rata basis in proportion to the shares of Common Stock underlying the Securities SPA Warrants then held by each such holderSPA Warrant Holder of SPA Warrants. In the event that the Company is then prohibited from issuing any shares of Common Stock pursuant to this Section 1(f)(ii) (the “Exchange Cap Shares”), in lieu of issuing and delivering such Exchange Cap Shares to the Holder, the Company shall pay cash to the Holder in exchange for the cancellation of such portion of this Warrant exercisable into such Exchange Cap Shares (the “Exchange Cap Payment Amount”) at a price equal to the sum of (x) the product of (A) such number of Exchange Cap Shares and (B) the greatest Closing Sale Price of the Common Stock on any Trading Day during the period commencing on the date the Holder delivers the applicable Exercise Notice with respect to such Exchange Cap Shares to the Company and ending on the date of such payment under this Section 1(f)(ii) (“Exchange Cap Price”) and (y) to the extent the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of Exchange Cap Shares, any brokerage commissions and other out-of-pocket expenses, if any, of the Holder incurred in connection therewith.

Exchange Cap. The Company shall not be obligated to issue any Conversion Shares, Dividend Shares, Warrant Shares or other shares of Common Stock to any Buyer upon conversion of this Note or otherwise pursuant to any the terms of the Transaction Documents this Note if the issuance of such shares of Common Stock would exceed that the aggregate number of shares of Common Stock that which the Company may issue upon conversion of the Notes or otherwise pursuant to such Buyer the terms of this Note without breaching the Company's ’s obligations under the rules or regulations of the Principal Market (the number of shares which may be issued without violating such rules and regulations, including rules related to the Common Stock on the Issuance Date (including without limitation NASD Marketplace aggregate of offerings under NASDAQ Listing Rule 4350(i)5635(d), or any market or exchange where as applicable, the Common Stock subsequently trades (the "EXCHANGE CAP"“Exchange Cap”), except that such limitation shall not apply in the event that the Company (A) obtains the approval of its shareholders stockholders as required by the applicable rules of the Principal Market for issuances of shares of Common Stock upon conversion of the Notes or otherwise pursuant to the terms of this Note in excess of such amount or (B) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory to the holders of the Securities representing at least 50% of the shares of Common Stock underlying the Securities then outstandingHolder. Until such approval or such written opinion is obtained, no Buyer shall be issuedissued in the aggregate, upon exercise conversion of any Notes or otherwise pursuant to the terms of its rights under the Transaction Documentsthis Note, shares of Common Stock in an amount greater than the product of (i) the Exchange Cap multiplied by a fraction, (ii) the numerator quotient of which is (A) the total number aggregate original principal amount of shares of Common Stock underlying the Securities Notes issued to such Buyer pursuant to this the Securities Purchase Agreement on the Closing Date and the denominator of which is divided by (B) the aggregate number original principal amount of shares of Common Stock underlying all the Securities Notes issued to all the Buyers pursuant to this the Securities Purchase Agreement on the Closing Date (with respect to each PurchaserBuyer, the "EXCHANGE CAP ALLOCATION"“Exchange Cap Allocation”). In the event that any Buyer shall sell or otherwise transfer any of such Buyer's Warrants or Preferred Shares’s Notes, the transferee shall be allocated a pro rata portion of such Buyer's ’s Exchange Cap AllocationAllocation with respect to such portion of such Notes so transferred, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation so allocated to such transferee. In the event that any holder Upon conversion in full of Warrants or Preferred Shares shall exercise all of such a holder's rights under the Transaction Documents into a number of shares of Common Stock which’s Notes, in the aggregate, is less than such holder's Exchange Cap Allocation, then the difference (if any) between such holder's ’s Exchange Cap Allocation and the number of shares of Common Stock actually issued to such holder upon such holder’s conversion in full of such holder’s Notes shall be allocated to the respective Exchange Cap Allocations of the remaining holders of Securities Notes on a pro rata basis in proportion to the shares of Common Stock underlying the Securities Notes then held by each such holder. In the event that the Company is prohibited from issuing shares of Common Stock pursuant to this Section 3(d)(ii) (the “Exchange Cap Shares”) after the date that is 80 calendar days following the Issuance Date, the Company shall pay cash in exchange for the cancellation of such shares of Common Stock at a price equal to the sum of (i) the product of (x) such number of Exchange Cap Shares and (y) the greatest Closing Sale Price of the Common Stock on any Trading Day during the period commencing on the date the Holder delivers the applicable Conversion Notice with respect to such Exchange Cap Shares to the Company and ending on the date of such issuance and payment under this Section 3(d)(ii) and (ii) to the extent the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of Exchange Cap Shares, any Buy-In Payment Amount, any brokerage commissions and other out-of-pocket expenses, if any, of the Holder incurred in connection therewith (collectively, the “Exchange Cap Share Cancellation Amount”); provided, that no Exchange Cap Share Cancellation Amount shall be due and payable to the Holder to the extent that (x) on or prior to the applicable Share Delivery Deadline, the Exchange Cap Allocation of a Holder is increased (whether by assignment by a holder of Notes or all, or any portion, of such holder's Exchange Cap Allocation or otherwise) (an “Exchange Cap Allocation Increase”) and (y) after giving effect to such Exchange Cap Allocation Increase, the Company delivers the applicable Exchange Cap Shares to the Holder (or its designee) on or prior to the applicable Share Delivery Deadline.