Certain Trading Restrictions. (a) Each of Millennium and Riverview agree, as to itself only, that on and after the Closing Date until such time that neither Millennium nor Riverview holds any Securities, neither Millennium nor Riverview will engage in any short sales or other hedging transactions (including swaps, options or derivative securities) relating to shares of Common Stock unless (A) at the time of any such transaction, the Company is in breach of its obligations to register the resale of the Registrable Securities (as defined in the Registration Rights Agreement) pursuant to the Registration Rights Agreement or any other shares pursuant to which the Company has a similar registration obligation to Millennium and/or Riverview, or (B) in the event that such transaction is to take place after the 120th day following the Closing Date, the holders of the Securities and/or Registrable Securities are not then able to sell the shares of Common Stock pursuant to an effective Registration Statement (as defined in the Registration Rights Agreement) and a deliverable prospectus.
(b) Notwithstanding the foregoing, Millennium and Riverview may engage in short sales and/or hedging activity at any time so long as (x) after the date hereof, Millennium and Riverview (in the aggregate) may not sell short a number of shares of Common Stock in excess of the number of shares of Common Stock then issuable upon conversion in full of the Preferred Shares, (y) no such short sales shall be at a per share price below $2.00 (as such figure shall be appropriately adjusted for any stock splits, reorganizations or similar events), and (z) the aggregate amount of such short sales made on any one day shall not exceed 5% of the total trading volume on such day. The limitations contained in clauses (x), (y) and (z) above of this paragraph shall only apply to short sales under this paragraph (b).
(c) The covenant contained in this Agreement shall supersede all existing agreements between the Company and Millennium and/or Riverview regarding restrictions on trading of the Company's capital stock by Millennium and/or Riverview.
Certain Trading Restrictions. Each Purchaser agrees that during the five Trading Days preceding each Put Date (as defined in the Debentures) it shall not enter into any Short Sales (as defined herein). For purposes of this Section 3.14, a "Short Sale" by a Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by the Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by a Purchaser, Underlying Shares that are issuable on exercise of the Warrants or conversion of the Debentures on a Trading Day shall be deemed to be held long by such Purchaser on such Trading Day.
Certain Trading Restrictions. The Purchasers will not enter into any Short Sales (as hereinafter defined) at a price below the Initial Conversion Price (as defined in the Debentures), PROVIDED, that the limitations set forth in this Section shall cease to be in effect on the date that an Underlying Shares Registration Statement is first declared effective by the Commission or if, by the Effectiveness Date, the Underlying Shares Registration Statement has not been declared effective by the Commission and, thereafter, shall resume on the date, if any, the Underlying Shares Registration Statement is declared effective by the Commission. For purposes of this Section, a "Short Sale" by a Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by a Purchaser, Underlying Shares that have not yet been issued but for which the Company has received a Conversion Notice (with respect to Debentures) or Form of Election to Purchase (with respect to Warrants), as the case may be, shall be deemed held long by a Purchaser.
Certain Trading Restrictions. Each Lender agrees that neither ---------------------------- it nor its Affiliates (taken as a whole) will enter into or maintain a net short position with respect to the Common Stock. Accordingly, each Lender agrees that neither it nor its Affiliates will enter into or maintain any short sale of the Common Stock at a time when there is no equivalent offsetting long position in the Common Stock held by such Lender. For purposes of determining whether there is an equivalent offsetting long position in the Common Stock held by such Lender, the Underlying Shares issuable upon exercise of all warrants (including the Warrants) and conversion of all debentures and notes (including the Notes and in each case any shares issuable on account of interest under such notes or debentures) held by such Lender (without regard to any exercise or conversion caps contained therein, and whether or not any exercise or conversion notice shall have been tendered by such Lender) shall be deemed held long by such Lender for purposes of this Section.
Certain Trading Restrictions. Each Purchaser agrees that from the period commencing on the Closing Date and ending on the Expiration Date (as defined in the Adjustable Warrants) it will not, during the 35 Trading Days preceding each Vesting Date (as defined in the Adjustable Warrants), enter into any Short Sales (as defined herein). For purposes of this Section 3.16, a "Short Sale" by a Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by the Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by a Purchaser, Warrant Shares that have not yet been issued on exercise of the Warrants held by a Purchaser shall be deemed to be held long by such Purchaser.
Certain Trading Restrictions. (a) Each Purchaser agrees that it will not enter into and will not encourage or assist others into entering on its behalf into any Short Sales (as hereinafter defined) or have other Persons do so on their behalf for so long as its holds Debentures. For purposes hereof, a "Short Sale" by a Purchaser shall mean a sale of Common Stock by a Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in the Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in the Common Stock held by a Purchaser, on any date of computation, Underlying Shares that would be issuable upon the conversion in full of the Debentures or exercise in full of the Warrants held by such Purchaser shall be deemed to be held long by such Purchaser.
(b) The Company shall not issue or sell any of the principal amount of the Debentures to any Person other than the Purchasers.
Certain Trading Restrictions. Purchaser agrees that, as long as it holds any shares of Preferred Stock, neither it nor any of its Affiliates shall enter into any Short Sales (as defined herein). For purposes of this Section 5.11, a “Short Sale” shall mean a sale of Common Stock by Purchaser that would be required to be marked as a “short sale” by the broker executing the sale pursuant to the provisions of Rules 10a-1(c) and 10a-1(d)(1) under the Exchange Act if such rules applied to the sale (whether or not they in fact apply to the sale), and that is made at a time when immediately after the sale, and giving effect to all other sales by the Purchaser, there would be no equivalent offsetting long position in Common Stock held by Purchaser. For the purpose of determining under this Section 5.11 whether there is an equivalent offsetting long position in Common Stock held by Purchaser, only those Conversion Shares that are (i) issuable upon conversion of the Preferred Stock for which a conversion notice has been delivered by Purchaser on or prior to a trading day or (ii) issuable as a result of the delivery by the Company of a Repayment Election Notice, as defined in the Certificate of Vote of Directors, shall be deemed to be held long by Purchaser on such trading day.
Certain Trading Restrictions. Each Investor agrees that ---------------------------- neither it nor its Affiliates will enter into or maintain a net short position with respect to the Common Stock. Accordingly, each Investor agrees that neither it nor its Affiliates will enter into or maintain any short sale of the Common Stock at a time when there is no equivalent offsetting long position in the Common Stock held by such Investor. For purposes of determining whether there is an equivalent offsetting long position in the Common Stock held by such Investor, the Underlying Shares issuable upon exercise of the Warrants and conversion of the Debentures (including any shares issuable on account of interest thereunder) held by such Investor (without regard to any exercise or conversion caps contained therein, and whether or not any exercise or conversion notice shall have been tendered by such Investor) shall be deemed held long by such Investor for purposes of this Section.
Certain Trading Restrictions. Notwithstanding anything in Section 2.17, 2.18 or 2.19, the Borrower shall not, and the Servicer shall not on the Borrower’s behalf, acquire, sell or substitute any Loan with the primary purpose of recognizing gain or decreasing losses resulting from market value changes on such Loan or take any other action if such action would cause the Borrower not to be in compliance with the requirements of Rule 3a-7 under the 1940 Act.
Certain Trading Restrictions. The Buyer agrees that, during the period from the date the Registration Statement is first declared effective by the SEC to the date of the conversion in full or redemption of all Preferred Shares owned by the Buyer, the Buyer shall not engage in short sales or other hedging transactions relating to the Common Stock, except that the Buyer may enter into such transactions involving a number of shares of Common Stock not to exceed the number of shares for which a Conversion Notice (as defined in Section 5(b) herein) has been submitted to the Company and the Transfer Agent (as defined in Section 5(a) herein). The Buyer further agrees that, from the Closing Date until the date the Registration Statement is first declared effective by the SEC, it will not sell or contract to sell any equity security of the Company, except that during such period and at any time thereafter (in addition to the transactions permitted by the preceding sentence) it may engage in short sales or other hedging transactions relating to up to one-half of the Warrant Shares or Warrants exercisable for up to one-half of the Warrant Shares, provided that such transactions may only be effected at or above the last reported sale price of the Common Stock in accordance with Rule 10a-1 under the 1934 Act.
