Nasdaq Rule 5635. If the approval of the Company’s stockholders (the “Stockholder Rule 5635 Approval”) is required pursuant to Nasdaq Rule 5635 (or any other applicable Nasdaq Rules or any successor rule) (the “Nasdaq 20% Rule”) for the issuance of any Warrants pursuant to this Agreement (as may be integrated with the issuance of Warrants pursuant to the May 2019 ECA) (without giving effect to the limitations described below in clause (ii)):
Nasdaq Rule 5635. (A) Notwithstanding anything to the contrary in this Certificate of Designations, unless and until the Requisite Stockholder Approval is obtained, no shares of Class A Common Stock will be issued or delivered upon any proposed conversion of any Class A Preferred Stock of any Holder, and no Class A Preferred Stock of any Holder will be convertible, in each case, to the extent, and only to the extent, that (x) such issuance, delivery, or conversion would result in the aggregate number of shares of Class A Common Stock issuable or deliverable upon conversion of any Class A Preferred Stock together with any shares of Common Stock held by the Holder on the date of such issuance, delivery or conversion (subject to proportionate adjustment for stock dividends, stock splits or stock combinations with respect to the Common Stock) being in excess of nineteen point nine percent (19.9%) of the shares of Class A Common Stock issued and outstanding as of the date of such issuance, delivery or conversion (subject to proportionate adjustment for stock dividends, stock splits or stock combinations with respect to the Common Stock) and (y) the resulting aggregate number of shares of Class A Common Stock issuable or deliverable upon such conversion of any Class A Preferred Stock together with any shares of Common Stock held by the Holder on the date of such issuance, delivery or conversion (subject to proportionate adjustment for stock dividends, stock splits or stock combinations with respect to the Common Stock) is the largest ownership position of any stockholder of the Company as of such date (the restriction set forth in this sentence, the “Issuance Limitation”). For these purposes, beneficial ownership and calculations of percentage ownership will be determined in accordance with Rule 13d-3 under the Exchange Act. The Company is not required to obtain, or to try to obtain, the Requisite Stockholder Approval.
Nasdaq Rule 5635. The Parties hereto agree that the approval of the Company’s stockholders (the “Stockholder Rule 5635 Approval”) is required pursuant to Nasdaq Rule 5635 (or any other applicable Nasdaq Rules or any successor rule) (the “Nasdaq 20% Rule”) in connection with (x) the issuance of the Warrants pursuant to and in accordance with Sections 5.6, 9.17 and 9.18 (as may be integrated with the issuance of warrants to purchase Common Stock pursuant to the May 2019 ECA and/or the August 2019 ECA)), (y) the issuance of other warrants to purchase Common Stock pursuant to the Series A Preferred Exchange Agreement and the Rights Offering Agreement or (z) the issuance of Common Stock pursuant to the conversion of the Series B-1 Preferred Stock, the Series B-2 Preferred Stock and the Series B-3 Preferred Stock. In respect of the foregoing,
