OVERALL LIMIT ON COMMON STOCK ISSUABLE. Notwithstanding anything contained herein to the contrary, if during the Open Period the Company becomes listed on an exchange that limits the number of shares of Common Stock that may be issued without shareholder approval, then the number of Shares issuable by the Company and purchasable by the Investor, shall not exceed that number of the shares of Common Stock that may be issuable without shareholder approval (the "Maximum Common Stock Issuance"). If such issuance of shares of Common Stock could cause a delisting on the Principal Market, then the Maximum Common Stock Issuance shall first be approved by the Company's shareholders in accordance with applicable law and the By-laws and Amended and Restated Certificate of Incorporation of the Company, if such issuance of shares of Common Stock could cause a delisting on the Principal Market. The parties understand and agree that the Company's failure to seek or obtain such shareholder approval shall in no way adversely affect the validity and due authorization of the issuance and sale of Securities or the Investor's obligation in accordance with the terms and conditions hereof to purchase a number of Shares in the aggregate up to the Maximum Common Stock Issuance limitation, and that such approval pertains only to the applicability of the Maximum Common Stock Issuance limitation provided in this Section 2(H).
OVERALL LIMIT ON COMMON STOCK ISSUABLE. Notwithstanding anything contained herein to the contrary, if during the Open Period the Company becomes listed on an exchange that limits the number of shares of Common Stock that may be issued without shareholder approval, then the number of Shares issuable by the Company and purchasable by the Investor, including the shares of Common Stock issuable to the Investors, shall not exceed that number of the shares of Common Stock that may be issuable without shareholder approval, subject to appropriate adjustment for stock splits, stock dividends, combinations or other similar recapitalization affecting the Common Stock (the "Maximum Common Stock Issuance"), in excess of the Maximum Common Stock Issuance shall first be approved by the Company's shareholders in accordance with applicable law and the By-laws and Amended and Restated Certificate of Incorporation of the Company, if such issuance of shares of Common Stock could cause a delisting on the Principal Market. The parties understand and agree that the Company's failure to seek or obtain such shareholder approval shall in no way adversely affect the validity and due authorization of the issuance and sale of Securities or the Investor's obligation in accordance with the terms and conditions hereof to purchase a number of Shares in the aggregate up to the Maximum Common Stock Issuance limitation, and that such approval pertains only to the applicability of the Maximum Common Stock Issuance limitation provided in this Section 2(I).
OVERALL LIMIT ON COMMON STOCK ISSUABLE. Notwithstanding anything contained herein to the contrary, the number of shares of Common Stock issuable by the Company and acquirable by the Holders of Debentures, together the number of shares issued under the Warrants and the Option, shall not exceed 19.9% of the number of shares of Common Stock outstanding on the Closing Date, subject to appropriate adjustment for stock splits, stock dividends, or other similar recapitalizations affecting the Common Stock (the "MAXIMUM COMMON STOCK ISSUANCE"), unless the issuance of shares hereunder in excess of the Maximum Common Stock Issuance shall first be approved by the Company's shareholders in accordance with applicable law and the By-laws and Articles of Incorporation of the Company. If at any point in time and from time to time (each a "TRIGGER DATE") the number of Common Shares issued pursuant to conversion of the Debentures and exercise of the Warrants and the Option, together with the number of Common Shares that would then be issuable by the Company in the event of conversion of all the Debentures and exercise of all the Warrants and the entire Option then outstanding, would exceed the Maximum Common Stock Issuance but for this Section 3(i)(C), then the Company shall, at the Company's election, either (A) promptly call a shareholders meeting to obtain shareholder approval for the issuance of Common Shares hereunder in excess of the Maximum Common Stock Issuance, which such shareholder approval shall be obtained within 60 days of the Trigger Date, or (B) purchase from the holders of Debentures, Warrants and the Option on a pro rata basis such Principal Amount of Debentures, number of Warrants and the portion of the Option which cannot be converted or exercised due to such Maximum Common Stock Issuance limitation ("SHORTFALL") at a redemption price equal to the "Mandatory Repurchase Price" (as defined in the Registration Rights Agreement), which redemption price shall be paid within three (3) Trading Days after a Trigger Date if this clause (B) is elected. The Company shall make such election with two (2) days following the Trigger Date by giving written notice to all holders of Debentures, Warrants and the Option. If the Company fails to timely make such election, or elects clause (A) but then fails to obtain such shareholder approval within 60 days following the Trigger Date, then the Company shall purchase the Shortfall at the Mandatory Repurchase Price within three (3) Trading Days following any such fa...
OVERALL LIMIT ON COMMON STOCK ISSUABLE. Notwithstanding anything contained herein to the contrary, if during the Open Period the Company becomes listed on an exchange that limits the number of Shares that may be issued without stockholder approval, then the number of Shares issuable by the Company and purchasable by the Investor, shall not exceed that number of the Shares that may be issuable without stockholder approval (the “Maximum Common Stock Issuance”). If such issuance of Shares could cause a delisting on the Principal Market, then the Maximum Common Stock Issuance shall first be approved by the Company’s stockholders in accordance with applicable law and the Certificate of Incorporation and By-laws of the Company. The parties understand and agree that the Company’s failure to seek or obtain such stockholder approval shall in no way adversely affect the validity and due authorization of the issuance and sale of Securities or the Investor’s obligation in accordance with the terms and conditions hereof to purchase a number of Shares in the aggregate up to the Maximum Common Stock Issuance limitation, and that such approval pertains only to the applicability of the Maximum Common Stock Issuance limitation provided in this Section 2.5.
OVERALL LIMIT ON COMMON STOCK ISSUABLE. Notwithstanding anything herein or in the other Notes to the contrary, if the Company has not obtained Shareholder Approval (as defined below), then the Company may not issue a number of shares of Common Stock in excess of the amount of shares of Common Stock which may be issued (the “Issuable Maximum”) without causing the Company to breach its obligations under the rules or regulations of the Nasdaq Stock Market (including without limitation Section 5635(d) of the NASDAQ Stock Market Rules). Each Holder of Notes shall be entitled to a portion of the Issuable Maximum equal to the quotient obtained by dividing (x) the aggregate principal amount of the Notes issued and sold to such Holder by (y) the aggregate principal amount of all Notes issued and sold by the Company. If any Holder shall no longer hold any Notes, then such Holder’s remaining portion of the Issuable Maximum, if any, shall be reallocated pro-rata among the other Holders. “Shareholder Approval” means approval by the shareholders of the Company, in accordance with the applicable rules and regulations of the Nasdaq Stock Market (including without limitation Section 5635(e) of the NASDAQ Stock Market Rules) and Nevada corporate law, of the transactions contemplated by the Purchase Agreement and the Notes (as amended hereby), including without limitation the issuance of all of the Conversion Shares under the Notes in excess of the Issuable Maximum. To the extent any portion of the Principal Amount of Notes is not convertible due to the Issuable Maximum, such portion shall bear interest at the Default Rate.
OVERALL LIMIT ON COMMON STOCK ISSUABLE. Notwithstanding anything herein or in the other documents, if the Company has not obtained Shareholder Approval (as defined below), then the Company may not issue, upon exercise of the Warrants, a number of shares of Common Stock in excess of the amount of shares of Common Stock which may be issued upon the exercise of the Warrants (the “Issuable Maximum”) without causing the Company to breach its obligations under the rules or regulations of the Nasdaq Stock Market (including without limitation Section 5635(d) of the NASDAQ Stock Market Rules), provided that any portion of this Warrant which cannot be exercised due to such Issuable Maximum shall be purchased by the Company using the Black-Scholes Option Pricing Model. Each Holder shall be entitled to a portion of the Issuable Maximum equal to the quotient obtained by dividing (x) the aggregate principal amount of the Notes issued and sold to such Holder by (y) the aggregate principal amount of all Notes issued and sold by the Company. If any Holder shall no longer hold any Notes, then such Holder’s remaining portion of the Issuable Maximum, if any, shall be
OVERALL LIMIT ON COMMON STOCK ISSUABLE. Notwithstanding anything contained herein to the contrary, if the Company becomes listed on the Nasdaq Small Cap Market, Nasdaq National Market or the American Stock Exchange, the number of Shares issuable by the Company and purchasable by the Investor including the shares of Common Stock issuable in connection with the Commitment Warrant issuable hereunder, shall not exceed 19.99% of the shares of Common Stock outstanding as of the date hereof, subject to appropriate adjustment for stock splits, stock dividends, combinations or other similar recapitalization affecting the Common Stock (the "MAXIMUM COMMON STOCK ISSUANCE"), unless the issuance of Shares, including any Common Stock to be issued in connection with the Commitment Warrant issuable hereunder, in excess of the Maximum Common Stock Issuance shall first be approved by the Company's shareholders in accordance with applicable law and the By-laws and Articles of Incorporation of the Company, if such issuance of shares of Common Stock could cause a delisting on the Principal Market. Without limiting the generality of the foregoing, such shareholders' approval must duly authorize the issuance by the Company of shares of Common Stock totaling 19.99% or more of the shares of Common Stock outstanding on the date hereof. The parties understand and agree that the Company's failure to seek or obtain such shareholder approval shall in no way adversely affect the validity and due authorization of the issuance and sale of Shares hereunder or the Investor's obligation in accordance with the terms and conditions hereof to purchase a number of Shares in the aggregate up to the Maximum Common Stock Issuance limitation, and that such approval pertains only to the applicability of the Maximum Common Stock Issuance limitation provided in this Section 2(j).
OVERALL LIMIT ON COMMON STOCK ISSUABLE. Notwithstanding anything contained herein to the contrary, the number of Shares issuable by the Company and purchasable by the Investor hereunder shall not exceed 4,190,494 shares of Common Stock outstanding as of the date hereof, subject to appropriate adjustment for stock splits, stock dividends, combinations or other similar recapitalization affecting the Common Stock (the "MAXIMUM COMMON STOCK ISSUANCE"), unless the issuance of Shares hereunder in excess of the Maximum Common Stock Issuance shall first be approved by the Company's shareholders in accordance with applicable law and the By-laws and Articles of Incorporation of the Company. Without limiting the generality of the foregoing, such shareholders' approval must duly authorize the issuance by the Company of shares of Common Stock totaling 4,190,494 or more of the shares of Common Stock outstanding on the date hereof. The parties understand and agree that the Company's failure to seek or obtain such shareholder approval shall in no way adversely affect the validity and due authorization of the issuance and sale of Shares hereunder, and that such approval pertains only to the applicability of the Maximum Common Stock Issuance limitation provided in this Section 1(l). If the Maximum Common Stock Issuance limitation delays the exercise of the Investor's right to purchase additional Shares at its election pursuant to Section 1.d., then the Investor shall have the right but not the obligation to exercise its Section 1.d. election pursuant to a Purchase Notice at any time and from time to time within 30 Trading Days of the receipt of such shareholder approval, at the lesser of (i) the Purchase Price specified in the unsatisfied Purchase Notice and (ii) the lowest Purchase Price existing during such delay.
OVERALL LIMIT ON COMMON STOCK ISSUABLE. For so long as the Borrower is subject to the rules of the Nasdaq Stock Market, the number of shares of Common Stock issuable by the Borrower and acquirable by the Holder under all securities issued by the Company to the Holder, shall not exceed 4,769,535 shares, subject to appropriate adjustment for stock splits, stock dividends, or other similar recapitalizations affecting the Common Stock (the "MAXIMUM COMMON STOCK ISSUANCE"), unless the issuance of shares hereunder in excess of the Maximum Common Stock Issuance shall first be approved by the Borrower's shareholders. If at any point in time and from time to time the number of shares of Common Stock issued pursuant to conversion of this Note, together with the number of shares of Common Stock that would then be issuable by the Borrower in the event of the conversion or exercise of all other securities issued by the Company, would exceed the Maximum Common Stock Issuance but for this Section, then upon written notice provided by the Holder, which such notice shall not be provided until the Holder has been issued in the aggregate not less than 3,500,000 shares of Common Stock, the Borrower shall promptly call a shareholders meeting to obtain shareholder approval for the issuance of the shares of Common Stock hereunder in excess of the Maximum Common Stock Issuance.
OVERALL LIMIT ON COMMON STOCK ISSUABLE. Notwithstanding anything herein or in the Notes to the contrary, the Company may not issue, upon conversion of the Notes, more than 14,524,000 shares of Common Stock (the “Issuable Maximum”) in the aggregate (such figure to be appropriately and equitably adjusted for any stock splits and similar events). Each Holder of Notes shall be entitled to a portion of the Issuable Maximum equal to the quotient obtained by dividing (x) the aggregate principal amount of the Notes issued and sold to such Holder by (y) the aggregate principal amount of all Notes issued and sold by the Company. If any Holder shall no longer hold any Notes, then such Holder’s remaining portion of the Issuable Maximum, if any, shall be reallocated pro-rata among the remaining Holders.
