Trading Market Regulation. Notwithstanding anything in this Agreement to the contrary, neither the Exchange Cap nor the Single Fixed Request Limit shall be applicable for any purposes of this Agreement or the transactions contemplated hereby, solely to the extent (and only for so long as) the Average Discount Price shall equal or exceed the Base Price (it being hereby acknowledged and agreed that each of the Exchange Cap and the Single Fixed Request Limit shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all other times during the term of this Agreement); provided, however, that the Company shall not issue any shares of Common Stock under this Agreement if such issuance would otherwise breach the Company’s obligations under the rules and regulations of NASDAQ or any other Trading Market on which the Common Stock may be listed or quoted. “Base Price” shall mean a price per Share equal to $1.46, representing the consolidated closing bid price of the Common Stock as reported on NASDAQ on the Effective Date, subject to (a) upward adjustment (by such amount to be mutually agreed by the Company and the Investor consistent with the rules and regulations of NASDAQ or any other Trading Market on which the Common Stock may be listed or quoted) in the event any shares of Common Stock are issued by the Company as partial damages pursuant to Section 9.1(ii) and (b) adjustment for any stock splits, stock combinations, stock dividends, recapitalizations and other similar transactions that occur on or after the date of this Agreement. The Company hereby represents and warrants to the Investor that the book value per share of Common Stock on the Effective Date is less than the Base Price. “Average Discount Price” shall mean a price per Share (rounded to the nearest tenth of a cent) equal to the quotient obtained by dividing (i) the total aggregate gross purchase price paid by the Investor for all Shares purchased pursuant to all Fixed Requests and Optional Amounts under this Agreement, by (ii) the total aggregate number of Shares issued pursuant to all Fixed Requests and Optional Amounts under this Agreement. The provisions of this Section 2.13 shall be implemented in a manner otherwise than in strict conformity with the terms of this Section 2.13, only if necessary to ensure compliance with the rules and regulations of NASDAQ or any other Trading Market on which the Common Stock may be listed or quoted.
Trading Market Regulation. The Company shall not issue any Shares under this Agreement if such issuance would otherwise breach the Company’s obligations under the rules and regulations of any Trading Market on which the Common Stock may then be listed or quoted. The provisions of this Section 2.8 shall be implemented in a manner otherwise than in strict conformity with the terms of this Section 2.8 only if necessary to ensure compliance with the rules and regulations of any Trading Market on which the Common Stock may be listed or quoted.
Trading Market Regulation. The Company shall not issue any shares of Common Stock pursuant to the terms of any Note if the issuance of such Common Stock would exceed the aggregate number of shares of Common Stock which the Company may issue without breaching the Company’s obligations under the rules or regulations of the Trading Market.
Trading Market Regulation. Notwithstanding anything to the contrary, if on the Conversion Date the Common Stock is listed on a national securities exchange, the Holder may only convert an amount of the Outstanding Balance such that the total cumulative number of Conversion Shares and all shares issued upon the conversion of the Related Notes and the exercise of the Warrants and all warrants issued to holders of the Related Notes shall not exceed the requirements of Nasdaq Listing Rule 5635(d), except that such limitation shall not apply to the extent that the Company obtains the approval of its stockholders for such issuance.”
Trading Market Regulation. Notwithstanding Section 2.12 above and subject to the prior approval of the NYSE MKT or any other Trading Market on which the Common Stock may be listed or quoted after the date of this Agreement (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 Trading Market on which the Common Stock may be listed or quoted after the date of this Agreement (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 2.12 is obtained).
Trading Market Regulation. Evergreen shall not be obligated to issue any shares of Common Stock upon conversion of this Note if the issuance of such shares of Common Stock would exceed the aggregate number of shares of Common Stock which Evergreen may issue upon conversion of the Notes in the aggregate without breaching Evergreen’s obligations under the rules or regulations of any applicable Trading Market, except that such limitation shall not apply in the event that Evergreen (A) obtains the approval of its stockholders as required by the applicable rules of such Trading Market for issuances of Common Stock in excess of such amount or (B) obtains a written opinion from outside counsel to Evergreen that such approval is not required, which opinion shall be reasonably satisfactory to the Holder.
Trading Market Regulation. The Company shall not be obligated to issue any shares of Common Stock upon conversion of this Note, and the Holder of this Note shall not have the right to receive upon conversion of this Note any shares of Common Stock, 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 conversion or exercise, as applicable, of the Notes and Additional Notes without breaching the Company’s obligations under the rules or regulations of the Trading Market (the “Exchange Cap”), except that such limitation shall not apply in the event that the Company obtains the Shareholder Approval. Until such approval is obtained, no Purchaser shall be issued in the aggregate, upon conversion or exercise, as applicable, of Notes, 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 principal amount of Notes issued to such Purchaser and the denominator of which is the aggregate principal amount of all Notes issued to the Purchasers (with respect to each Purchaser, the “Exchange Cap Allocation”). In the event that any Purchaser shall sell or otherwise transfer any of such Purchaser’s Notes, the transferee shall be allocated a pro rata portion of such Purchaser’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 Notes shall convert all of such holder’s Notes 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 Notes on a pro rata basis in proportion to the aggregate principal amount of the Notes then held by each such holder.
Trading Market Regulation. The Company shall not be required to issue any shares of Common Stock upon receipt of a Conversion Notice if the issuance of such shares together with any previous issuances of shares pursuant to this Note by the Holder hereof would exceed 1,917,700shares of Common Stock [19.9% of the shares of Common Stock outstanding], subject to appropriate adjustment for any stock dividends, stock splits, combination, reclassification or similar transactions after the date hereof (the "Exchange Cap"). Upon any conversion of this Note, the Company shall issue the maximum amount of the number of shares of Common Stock set forth in the applicable Conversion Notice that may be issued without exceeding the Exchange Cap. For the avoidance of doubt, to the extent the conversion of any Principal and Interest of this Note pursuant to any Conversion Notice in respect of a Conversion would have resulted in an issuance of shares in excess of the Exchange Cap, such Principal and Interest shall not be converted, and such Principal shall remain outstanding and shall be repaid in cash in accordance with the terms of this Note.
