Cap Amount. If the Company becomes listed on the Nasdaq Small Cap Market or the Nasdaq National Market, then, unless the Company has obtained Stockholder 20% Approval as set forth in Section 6.11 or unless otherwise permitted by Nasdaq, in no event shall the Aggregate Issued Shares exceed the maximum number of shares of Common Stock (the "Cap Amount") that the Company can, without stockholder approval, so issue pursuant to Nasdaq Rule 4460(i)(1)(d)(ii) (or any other applicable Nasdaq Rules or any successor rule) (the "Nasdaq 20% Rule").
Cap Amount. If the Company is prohibited by Rule 4350(i) of the National Association of Securities Dealers, Inc. (“NASD”), or any successor or similar rule, or the rules or regulations of any other securities exchange on which the Common Stock is then listed or traded, from issuing a number of shares of Common Stock upon exercise of this Warrant (together with any shares of Common Stock issued pursuant to other securities issued pursuant to the Securities Purchase Agreement, the Additional Warrants or other agreements entered in connection therewith) in excess of a prescribed amount (the “Cap Amount”) (without stockholder approval or otherwise), then the Company shall not issue shares upon any such exercise in excess of the Cap Amount. Assuming solely for purposes of this Section 9(a) that such Rule 4350(i) or similar rule is applicable, the Cap Amount shall be 19.99% of the Common Stock outstanding immediately prior to the date hereof. The Cap Amount shall be allocated pro rata to the holders of Warrants (and the holders of such other securities issued pursuant to the Securities Purchase Agreement, the Additional Warrants or other agreements entered in connection therewith) as provided in Section 12(h). In the event that the Company is prohibited from issuing shares of Common Stock upon any exercise of this Warrant as a result of the operation of this Section 9(a), the Company shall immediately notify the holder hereof of such occurrence and the holder shall thereafter have the option, exercisable in whole or in part at any time and from time to time, by delivery of written notice to such effect (a “Redemption Notice”) to the Company, to require the Company to redeem for cash, at an amount per share equal to the Redemption Amount (as defined below), a portion of this Warrant such that, after giving effect to such redemption, the then unissued portion of the holder’s Cap Amount is at least equal to one hundred percent (100%) of the total number of shares of Common Stock issuable upon exercise of this Warrant in full. If the Company fails to redeem such portion of this Warrant within five business days after its receipt of such Redemption Notice, then the holder hereof shall be entitled to interest on the Redemption Amount at a per annum rate equal to the lower of twenty-four percent (24%) and the highest interest rate permitted by applicable law from the date on which such Redemption Amount is required to be paid hereunder until the actual date of payment of the Redem...
Cap Amount. For avoidance of doubt, it is understood and agreed that any increase in the aggregate Indebtedness for borrowed money constituting principal outstanding under the ABL Documents and the Term Loan Documents (in each case, including in any Refinancing thereof) after the date of the original incurrence or issuance of such Indebtedness solely as a result of a fluctuation in the exchange rate of the currency in which such Indebtedness is denominated shall be ignored for purposes of determining compliance with the ABL Cap Amount and the Term Loan Cap Amount, and any such incremental Indebtedness attributable to any such currency fluctuation shall be deemed to be an ABL Obligation or a Term Loan Obligation, as applicable, for all purposes hereof.
Cap Amount. Subject to the last sentence of this Section 7.3.3, indemnification shall only be available under Sections 7.1.1 (except in respect of the Cnova Fundamental Representations), 7.1.3(a) (except as set forth in the last sentence of this Section 7.3.3), 7.1.3(d), 7.1.3(e) and 7.1.4 collectively, for Losses up to an aggregate amount of One Hundred Eighty-Nine Million Nine Hundred Thirty Thousand Reals (R$189,930,000) (the "Cap Amount"). Subject to the last sentence of this Section 7.3.3, in no event shall Cnova NV or any of its affiliates have any liability pursuant to Section 7.1 (except in respect of the Cnova Fundamental Representations) for any Loss that exceeds the Cap Amount. Notwithstanding anything in this Section 7.3.3 to the contrary, Cnova NV's indemnification obligations for the Cnova Fundamental Representations, for Taxes indemnifiable pursuant to Section 7.1.3(a), or pursuant to any of Sections 7.1.2, 7.1.3(b) or 7.1.3(c) shall not be subject to the Cap Amount.
Cap Amount. In no event shall: (a) Seller’s aggregate liability arising out of its indemnification obligations under Section VIII.1 or otherwise in any respect of or relating to this Agreement, exceed the Purchase Price; it being understood and agreed that the foregoing limitation shall not apply in the event of fraud or willful misconduct committed by Seller or its Related Persons, or to claims for indemnification relating to relating to Excluded Assets, Excluded Liabilities, Construction Costs, the Fundamental Seller Representations, ARTICLE IX (Tax Matters) or to any claim under Section XII.3 (Specific Performance), provided that any such excluded indemnifiable Losses shall not be deemed to count against or otherwise reduce such limitation on Seller’s aggregate liability, and provided, further, that, except with respect to Construction Costs or fraud or willful misconduct committed by Seller or its Related Persons, all claims for indemnification pursuant to such sections shall not, under any circumstances, in the aggregate, exceed the Purchase Price; and (b) Purchaser’s aggregate liability arising out of its indemnification obligations under Section VIII.2 exceed the Purchase Price; it being understood and agreed that the foregoing limitation shall not apply in the event of fraud or willful misconduct committed by Purchaser or its Related Persons, or to claims for indemnification relating to Assumed Liabilities, the Fundamental Purchaser Representations, ARTICLE IX (Tax Matters) or to any claim under Section XII.3 (Specific Performance), provided that any such excluded indemnifiable Losses shall not be deemed to count against or otherwise reduce such limitation on such Purchaser’s aggregate liability, and provided, further, that, except with respect to fraud or willful misconduct committed by Purchaser or its Related Persons, all claims for indemnification pursuant to such sections shall not, under any circumstances, in the aggregate, exceed the Purchase Price.
Cap Amount. If the Corporation is prohibited by Rule 4460(i) of the National Association of Securities Dealers, Inc. ("NASD"), or any successor or similar rule, or the rules or regulations of any other securities exchange on which the Common Stock is then listed or traded, from issuing a number of shares of Common Stock upon conversion of this Note and exercise of the Warrants in excess of a prescribed amount (the "Cap Amount"), then the Corporation shall not issue shares upon conversion of this Note or exercise of the Warrants in excess of the Cap Amount; provided, however, that this limitation in this Article III.D (i) shall not apply and shall be of no further force and effect after the date of the effectiveness of the shareholder approval (the "Shareholder Approval Date") referred to in Section 4(q) of the Securities Purchase Agreement. In the event the Corporation is prohibited from issuing shares of Common Stock as a result of the operation of this subparagraph (i), the Corporation shall comply with Article V.
Cap Amount. For purposes of this Agreement, the “Cap Amount” shall mean:
12.3.1. Six Million Five Hundred Thousand Dollars ($6,500,000) for any claim or claims made during the period from the Effective Date to the second anniversary of the Service Commencement Date;
12.3.2. Seven Million Five Hundred Thousand Dollars ($7,500,000) for any claim or claims made during the period from the second anniversary of the Service Commencement Date to and including the fifth anniversary of the Service Commencement Date; and
12.3.3. For any claim or claims made during a Contract Year of a Renewal Term, Two and one-half (2.5) times the annual License Fee paid during such Contract Year; and for any claim or claims made following the Term, Two and one-half (2.5) times the annual License Fee paid during the final Contract Year of the Term.
Cap Amount. For the avoidance of doubt, notwithstanding anything herein to the contrary, in no event shall the Company be obligated to issue or deliver to the Dealer shares of Common Stock pursuant to this Agreement in excess of the Cap Amount (as such amount may be adjusted from time to time pursuant to Section 2).
Cap Amount. Unless otherwise permitted by Nasdaq, in no event shall the aggregate number of Initial Tranche Shares, Three Month Reset Shares, Six Month Reset Shares and any Call Shares exceed the maximum number of shares of Common Stock (the "Cap Amount") that the Company can, without shareholder approval, so issue pursuant to Nasdaq Rule 4460(i)(1)(d)(ii) (or any other applicable Nasdaq Rules or any successor rule) (the "Nasdaq 20% Rule"). In the event the Company is prohibited from issuing the full amount of Three Month Reset Shares or Six Month Reset Shares as a result of the operation of this Section 2.2.5, the Company shall issue such number of shares of Common Stock as are available without exceeding the Cap Amount (the "Cap Limit Shares") to the Subscriber as partial consideration for its obligation to issue the Three Month Reset Shares or Six Month Reset Shares, as the case may be, and shall pay the Subscriber the refund amount as specified in Section 2.2.6 below.
Cap Amount. 33 Closing...........................................................................................................9
