Common use of CONDITIONS TO INVESTOR’S OBLIGATION TO PURCHASE SHARES Clause in Contracts

CONDITIONS TO INVESTOR’S OBLIGATION TO PURCHASE SHARES. Notwithstanding anything to the contrary in this Agreement, the Company shall not be entitled to deliver a Put Notice and the Investor shall not be obligated to purchase any Shares at a Closing (as defined in Section 2(h)) unless each of the following conditions are satisfied: (i) a Registration Statement shall have been declared effective and shall remain effective and available for the resale of all the Registrable Securities (as defined in the Registration Rights Agreement) at all times until the Closing with respect to the subject Put Notice; (ii) at all times during the period beginning on the related Put Notice Date and ending on and including the related Closing Date, the Common Stock shall have been listed on the Principal Market and shall not have been suspended from trading thereon for a period of five (5) consecutive Trading Days during the Open Period and the Company shall not have been notified of any pending or threatened proceeding or other action to delist or suspend the Common Stock; (iii) the Company has complied with its obligations and is otherwise not in breach of a material provision of, or in default under, this Agreement, the Registration Rights Agreement or any other agreement executed in connection herewith which has not been corrected prior to delivery of the Put Notice Date; (iv) no injunction shall have been issued and remain in force, or action commenced by a governmental authority which has not been stayed or abandoned, prohibiting the purchase or the issuance of the Securities; and (v) the issuance of the Securities will not violate the shareholder approval requirements of the Principal Market. If any of the events described in clauses (i) through (v) above occurs during a Pricing Period, then the Investor shall have no obligation to purchase the Put Amount of Common Stock set forth in the applicable Put Notice.

CONDITIONS TO INVESTOR’S OBLIGATION TO PURCHASE SHARES. Notwithstanding anything to the contrary in this Agreement, the Company shall not be entitled to deliver a Put Notice and the Investor shall not be obligated to purchase any Shares at a Closing (as defined in Section 2(h)) unless each of the following conditions are satisfied: (i) i. a Registration Statement shall have been declared effective and shall remain effective effective, usable and available for the resale of all the Registrable Securities (as defined in the Registration Rights Agreement) Put Shares Due at all times until the Closing with respect to the subject applicable Put Notice; (ii) . at all times during the period beginning on the related Put Notice Date and ending on and including the related Closing Date, the Common Stock Shares shall have been listed or quoted for trading on the Principal Market and shall not have been suspended from trading thereon for a period of five (5) consecutive Trading Days during the Open Pricing Period and (excluding suspensions of not more than one (1) Trading Day resulting from business announcements by the Company shall not have been notified Company, provided that such suspensions occur prior to the Company’s delivery of any pending or threatened proceeding or other action to delist or suspend the Common Stocka Put Notice); (iii) . the Company has complied with its obligations and is otherwise not in material breach of a material provision of, or in material default under, this Agreement, the Registration Rights Agreement or any other agreement executed in connection herewith which has not been corrected cured prior to delivery to the Investor of the applicable Put Notice DateNotice; (iv) . no injunction shall have been issued and remain in force, or action commenced by a governmental authority which has not been stayed or abandoned, prohibiting the purchase or the issuance of the Securities; and (v) v. the issuance of the Securities will not violate the any shareholder approval requirements of the Principal Market. If any of the events described in clauses (i) through (v) above occurs during a Pricing Period, then the Investor shall have no obligation to purchase the Put Amount of Common Stock Shares set forth in the applicable Put Notice.

CONDITIONS TO INVESTOR’S OBLIGATION TO PURCHASE SHARES. Notwithstanding anything to the contrary in this Agreement, the Company shall not be entitled to deliver a Put Notice and require the Investor shall not be obligated to purchase any Shares at a Closing (as defined in Section 2(h)below) unless each of the following conditions are satisfied: (i) a the Applicable Trading Price (hereinafter defined) on the Business Day prior to delivery of such Put Notice is at least $3.25 per share; (ii) the Registration Statement shall have been declared effective and shall remain effective and available for the resale sale of all the Registrable Securities (as defined in the Registration Rights Agreement) at all times until during the period beginning on the date of delivery of the Preliminary Put Notice and ending on and including the related Closing with respect to the subject Put NoticeDate; (iiiii) at all times during the period beginning on the related date that the Company delivers a Preliminary Put Notice Date and ending on and including the related Closing Date, the Common Stock shall have been listed on The American Stock Exchange, Inc. or The New York Stock Exchange, Inc. or designated on the Principal Nasdaq National Market (the "PRINCIPAL MARKET") and shall not have been suspended from trading thereon for a period of five (5) consecutive Trading Days during the Open Period and the Company shall not have been notified of any pending or threatened proceeding or other action to delist or suspend the Common Stock; and (iiiiv) during the period beginning on the date of this Agreement and ending on and including the applicable Closing Date, there shall not have occurred a Triggering Event (as defined below), a Major Transaction (as defined below) which has or could have a Material Adverse Effect (as defined in Section 3(a)) or the public announcement of a Major Transaction which has or could have a Material Adverse Effect which has not been abandoned or terminated; and (v) the Company has complied with its obligations and is otherwise not in breach of a material provision of, or in default under, this Agreement, the Registration Rights Agreement or any other agreement executed in connection herewith which has not been corrected prior to delivery of the Put Notice Date; (iv) no injunction shall have been issued and remain in force, or action commenced by a governmental authority which has not been stayed or abandoned, prohibiting the purchase or the issuance of the Securities; and (v) the issuance of the Securities will not violate the shareholder approval requirements of the Principal Market. If any of the events described in clauses (i) through (v) above occurs during a Pricing Period, then the Investor shall have no obligation to purchase the Put Amount of Common Stock set forth in the applicable Put Notice.is

CONDITIONS TO INVESTOR’S OBLIGATION TO PURCHASE SHARES. Notwithstanding anything to the contrary in this Agreement, unless waived by the Investor, the Company shall not be entitled to deliver a Put Draw Notice and to require the Investor shall not be obligated to purchase any Shares at a Closing (as defined in Section 2(h1(h)) unless each of the following conditions are satisfied: (i) a Registration Statement shall have been declared effective and such Registration Statement, together with the required prospectus supplement, shall remain effective and available for the resale issuance and sale of all the Registrable Securities Shares at all times during the period beginning on the date of delivery of the related Draw Notice and ending on and including the related Closing Date (as defined in the Registration Rights Agreement) at all times until the Closing with respect to the subject Put NoticeSection 1(h)); (ii) at all times during the period beginning on the date that the Company delivers the related Put Draw Notice Date and ending on and including the related Closing Date, the Common Stock shall have been listed on The American Stock Exchange, Inc. or The New York Stock Exchange, Inc. or designated on the Principal Nasdaq National Market or The Nasdaq SmallCap Market (each a "PRINCIPAL MARKET") and shall not have been suspended from trading thereon for a period of five thereon; (5iii) consecutive Trading Days during the Open Period period beginning on the date of this Agreement and ending on and including the Company applicable Closing Date, there shall not have occurred a Major Transaction (as defined below) or the public announcement of a pending Major Transaction which has not been notified of any pending abandoned or threatened proceeding or other action to delist or suspend the Common Stockterminated; (iiiiv) the Company has complied with its obligations and is otherwise not in breach of a material provision of, or in default under, this Agreement, the Registration Rights Agreement or any other agreement executed in connection herewith which has not been corrected prior to delivery of the Put Notice Date; (iv) no injunction shall have been issued and remain in force, or action commenced by a governmental authority which has not been stayed or abandoned, prohibiting the purchase or the issuance of the SecuritiesTransaction Documents; and (v) the issuance a number of shares of Common Stock equal to at least 150% of the Securities will not violate aggregate number of shares issuable during the shareholder approval requirements Investment Period, based on the Purchase Price (as defined below) per Share on the date of the Principal MarketDraw Notice and including any additional shares of Common Stock which the Investor may elect to purchase pursuant to Section 1(d) (regardless of any limitation on the timing or amount of such purchases) have been duly authorized and reserved for issuance. The Company's delivery of a Draw Notice shall constitute a representation by the Company that the shares of Common Stock referred to in clause (v) above have been reserved for issuance as required pursuant to this Section 1(f). If any of the events described in clauses (i) through (v) above occurs after an effective Draw Notice is so delivered, and if any such circumstance described above so occurs before the entire Required Dollar Amount of Common Stock covered by such Draw Notice shall have been purchased during a Pricing the Investment Period, then the Investor shall have no further obligation to purchase the Put balance of such Required Dollar Amount of Common Stock set forth during such Investment Period; provided, that on any day during the balance of such Investment Period upon which such events described in clauses (i) through (v) above do not exist, the applicable Put NoticeInvestor may, in its sole discretion, but shall not be required to, give the Company one or more Purchase Notices (as defined in Section 1(h)) covering some or all of such balance of the Required Dollar Amount, as well as some or all of the additional amounts of Common Stock which the Investor may elect to purchase during such Investment Period pursuant to Section 1(d) above. For purposes of this Agreement, a "MAJOR TRANSACTION" shall be deemed to include any of the following events: (i) the consolidation, merger or other business combination of the Company with or into another person (other than (A) a consolidation, merger or other business combination in which the holders of the Company's voting power immediately prior to such transaction continue after the transaction to hold, directly or indirectly, the voting power (on a fully diluted basis) of the surviving entity or entities necessary to elect a majority of the members of the board of directors (or their equivalent if other than a corporation) of such entity or entities, or (B) pursuant to a "migratory" merger effected solely for the purposes of changing the jurisdiction of incorporation of the Company); (ii) the sale or transfer of all or substantially all of the Company's assets in one or a series of transactions; (iii) the consummation of a purchase, tender or exchange offer made to, and accepted by, the holders of more than 50% of the outstanding shares of Common Stock or (iv) any "going private" transaction.

CONDITIONS TO INVESTOR’S OBLIGATION TO PURCHASE SHARES. Notwithstanding anything to the contrary in this Agreement, the Company shall not be entitled to deliver a Put Notice and require the Investor shall not be obligated to purchase any Shares at a Closing (as defined in Section 2(h1(g)) unless each of the following conditions are satisfied: (i) the Daily Trading Volume for the 10 Business Days preceding the Put Notice Date and the Closing Date, as defined below shall be at least $25,000; (ii) a Registration Statement shall have been declared effective and shall remain effective and available for the resale sale of all the Registrable Securities (as defined in the Registration Rights Agreement) at all times until during the Closing with respect to the subject Put Notice; Purchase Period, (iiiii) at all times during the period beginning on the date that the Company delivers the related Put Notice Date and ending on and including the related Closing Date, the Common Stock shall have been listed on The American Stock Exchange, Inc. or The New York Stock Exchange, Inc. or designated on the Principal Market Nasdaq National Market, The Nasdaq SmallCap Market, or the National Association of Securities Dealer's, Inc. OTC electronic bulletin board (the "PRINCIPAL MARKET") and shall not have been suspended from trading thereon for a period of five (5) consecutive Trading Days during the Open Period and the Company shall not have been notified of any pending or threatened proceeding or other action to delist or suspend the Common Stock; (iiiiv) during the period beginning on the date of this Agreement and ending on and including the applicable Closing Date, there shall not have occurred a Major Transaction (as defined below) or the public announcement of a pending Major Transaction which has not been abandoned or terminated; and (v) the Company has complied with its obligations and is otherwise not in breach of a material provision of, or in default under, this Agreement, the Registration Rights Agreement or any other agreement executed in connection herewith which has not been corrected prior to delivery of the Put Notice Date; (iv) no injunction shall have been issued and remain in force, or action commenced by a governmental authority which has not been stayed or abandoned, prohibiting the purchase or the issuance of the Securities; and (v) the issuance of the Securities will not violate the shareholder approval requirements of the Principal Marketherewith. If any of the events described in clauses (i) through (v) above occurs during a Pricing Periodafter an effective Put Notice is so delivered, then the Investor shall have no further obligation to purchase the Put balance of such Required Dollar Amount of Common Stock set forth during such Purchase Period. The "APPLICABLE TRADING PRICE" with respect to the Common Stock on any Business Day, shall mean the Weighted Average Price (as defined below) of the Common Stock on such Business Day. "WEIGHTED AVERAGE PRICE" means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market (as reported by Bloomberg through its "Volume at Price" function) or, if the Principal Market is not the principal securities exchange or trading market for such security, the dollar volume-weighted average price of such security on the principal securities exchange or trading market where such security is listed or traded (as reported by Bloomberg through its "Volume at Price" function), or if the foregoing do not apply, the dollar volume-weighted average price of such security in the applicable over-the-counter market on the OTC electronic bulletin board for such security as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg, the average of the bid prices of any market makers for such security as reported in the "pink sheets" by the National Quotation Bureau, Inc. If the Weighted Average Price cannot be calculated for such security on such date on any of the foregoing bases, the Weighted Average Price of such security on such date shall be the fair market value as mutually determined by the Company and the Investor. A Put NoticeNotice shall be deemed delivered on (i) the Business Day it is received by facsimile or otherwise by the Investor if such notice is received prior to 12:00 noon Eastern Time, or (ii) the immediately succeeding Business Day if it is received by facsimile or otherwise after 12:00 noon Eastern Time on a Business Day or at any time on a day which is not a Business Day. No Put Notice may be deemed delivered, on a day that is not a Business Day. For purposes of this Agreement, a "MAJOR TRANSACTION" shall be deemed to have occurred at the closing of any of the following events: (i) the consolidation, merger or other business combination of the Company with or into another person (other than pursuant to a migratory merger effected solely for the purposes of changing the jurisdiction of incorporation of the Company); (ii) the sale or transfer of all or substantially all of the Company's assets; or (iii) the consummation of a purchase, tender or exchange offer made to, and accepted by, the holders of more than 30% of the economic interest in, or the combined voting power of all classes of voting stock of, the Company.

CONDITIONS TO INVESTOR’S OBLIGATION TO PURCHASE SHARES. Notwithstanding anything to the contrary in this Agreement, the Company shall not be entitled to deliver a Put Notice and require the Investor shall not be obligated to purchase any Shares at a Closing (as defined in Section 2(h1(h)) unless each of the following conditions are satisfied: (i) the Applicable Trading Price of the Class A Common Stock on the Business Day immediately preceding the Put Notice Date shall not be less than $1.00 (equitably adjusted for stock splits, stock dividends, combinations and similar transactions); (ii) a Registration Statement shall have been declared effective and shall remain effective and available for the resale sale of all the Registrable Securities (as defined in the Registration Rights Agreement) at all times until during the period beginning on the date of delivery of the related Preliminary Put Notice and ending on and including the related Closing with respect to the subject Put NoticeDate (as defined in Section 1(h)); (iiiii) at all times during the period beginning on the date that the Company delivers the related Preliminary Put Notice Date and ending on and including the related Closing Date, the Class A Common Stock shall have been listed on The American Stock Exchange, Inc. or The New York Stock Exchange, Inc. or designated on the Principal Nasdaq National Market (the "PRINCIPAL MARKET") and shall not have been suspended from trading thereon for a period of five (5) consecutive Trading Days during the Open Period and the Company shall not have been notified of any pending or threatened proceeding or other action to delist or suspend the Class A Common Stock; (iiiiv) during the period beginning on the date of this Agreement and ending on and including the applicable Closing Date, there shall not have occurred a Major Transaction (as defined below) or the public announcement of a pending Major Transaction which has not been abandoned or terminated; and (v) the Company has complied with its obligations and is otherwise not in breach of a material provision of, or in default under, this Agreement, Agreement and the Registration Rights Agreement or any other agreement executed in connection herewith which has not been corrected prior to delivery of the Put Notice Date; (iv) no injunction shall have been issued and remain in force, or action commenced by a governmental authority which has not been stayed or abandoned, prohibiting the purchase or the issuance of the Securities; and (v) the issuance of the Securities will not violate the shareholder approval requirements of the Principal MarketAgreement. If any of the events described in clauses (iii) through (v) above occurs after an effective Put Notice is so delivered, and if any such circumstance described above so occurs before the entire Required Dollar Amount of Class A Common Stock covered by such Put Notice shall have been purchased during a Pricing the Purchase Period, then the Investor shall have no further obligation to purchase the Put balance of such Required Dollar Amount of Class A Common Stock set forth during such Purchase Period; provided, however, that on any day during the balance of such Purchase Period upon which such events described in clauses (ii) through (v) above do not exist, the Investor may, in its sole discretion, but shall not be required to, give the Company one or more Purchase Notices (as defined in Section 1(h)) covering some or all of such balance of the Required Dollar Amount, as well as some or all of the additional amounts of Class A Common Stock which the Investor may elect to purchase during such Purchase Period pursuant to Section 1(d) above. The "APPLICABLE TRADING PRICE" with respect to the Class A Common Stock on any Business day, shall mean the Weighted Average Price (as defined below) of the Class A Common Stock on such Business Day. "WEIGHTED AVERAGE PRICE" means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market (as reported by Bloomberg through its "Volume at Price" function) or, if the Principal Market is not the principal securities exchange or trading market for such security, the dollar volume-weighted average price of such security on the principal securities exchange or trading market where such security is listed or traded (as reported by Bloomberg through its "Volume at Price" function), or if the foregoing do not apply, the dollar volume-weighted average price of such security in the applicable Put Noticeover-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg, the average of the bid prices of any market makers for such security as reported in the "pink sheets" by the National Quotation Bureau, Inc. If the Weighted Average Price cannot be calculated for such security on such date on any of the foregoing bases, the Weighted Average Price of such security on such date shall be the fair market value as mutually determined by the Company and the Investor. For purposes of this Agreement, a "MAJOR TRANSACTION" shall be deemed to have occurred at the closing of any of the following events: (i) the consolidation, merger or other business combination of the Company with or into another person (other than pursuant to a migratory merger effected solely for the purposes of changing the jurisdiction of incorporation of the Company); (ii) the sale or transfer of all or substantially all of the Company's assets; or (iii) the consummation of a purchase, tender or exchange offer made to, and accepted by, the holders of more than 30% of the economic interest in, or the combined voting power of all classes of voting stock of, the Company.

CONDITIONS TO INVESTOR’S OBLIGATION TO PURCHASE SHARES. Notwithstanding anything to the contrary in this Agreement, the Company shall not be entitled to deliver a Put Notice and the Investor shall not be obligated to purchase any Shares at a Closing (as defined in Section 2(h)) unless each of the following conditions are satisfied: (iI) a Registration Statement shall have been declared effective and shall remain effective and available for the resale of all the Registrable Securities (as defined in the Registration Rights Agreement) at all times until the Closing with respect to the subject Put Notice; (iiII) at all times during the period beginning on the related Put Notice Date and ending on and including the related Closing Date, the Common Stock shall have been listed on the Principal Market and shall not have been suspended from trading thereon for a period of five two (52) consecutive Trading Days during the Open Period and the Company shall not have been notified of any pending or threatened proceeding or other action to delist or suspend the trading of the Common Stock; (iiiIII) the Company has complied with its obligations and is otherwise not in breach of a material provision of, or in default under, this Agreement, the Registration Rights Agreement or any other agreement executed in connection herewith which has not been corrected prior to delivery of the Put Notice Date; (ivIV) no injunction shall have been issued and remain in force, or action commenced by a governmental authority which has not been stayed or abandoned, prohibiting the purchase or the issuance of the Securities; and (vV) the issuance of the Securities will not violate the any shareholder approval requirements of the Principal Market. If any of the events described in clauses (i) through (v) above occurs during a Pricing Period, then the Investor shall have no obligation to purchase the Put Amount of Common Stock set forth in the applicable Put Notice.. (G) RESERVED (H)

CONDITIONS TO INVESTOR’S OBLIGATION TO PURCHASE SHARES. Notwithstanding anything to the contrary in this Agreement, the Company shall not be entitled to deliver a Put Notice and the Investor shall not be obligated to purchase any Shares at a Closing (as defined in Section 2(h)) unless each of the following conditions are satisfied: (iI) a Registration Statement shall have been declared effective and shall remain effective and available for the resale of all the Registrable Securities (as defined in the Registration Rights Agreement) at all times until the Closing with respect to the subject Put Notice; (iiII) at all times during the period beginning on the related Put Notice Date and ending on and including the related Closing Date, the Common Stock shall have been listed on the Principal Market and shall not have been suspended from trading thereon for a period of five (5) consecutive Trading Days during the Open Period and the Company shall not have been notified of any pending or threatened proceeding or other action to delist or suspend the trading of the Common Stock; (iiiIII) the Company has complied with its obligations and is otherwise not in breach of a material provision of, or in default under, this Agreement, the Registration Rights Agreement or any other agreement executed in connection herewith which has not been corrected prior to delivery of the Put Notice Date; (ivIV) no injunction shall have been issued and remain in force, or action commenced by a governmental authority which has not been stayed or abandoned, prohibiting the purchase or the issuance of the Securities; and (vV) the issuance of the Securities will not violate the any shareholder approval requirements of the Principal Market. If any of the events described in clauses (i) through (v) above occurs during a Pricing Period, then the Investor shall have no obligation to purchase the Put Amount of Common Stock set forth in the applicable Put Notice.

CONDITIONS TO INVESTOR’S OBLIGATION TO PURCHASE SHARES. Notwithstanding anything to the contrary in this Agreement, the Company shall not be entitled to deliver a Put Notice and the Investor shall not be obligated to purchase any Shares at a Closing (as defined in Section 2(h)) unless each of the following conditions are satisfied: (i) i. a Registration Statement shall have been declared effective and shall remain effective and available for the resale of all the Registrable Securities (as defined in the Registration Rights Agreement) at all times until the Closing with respect to the subject Put Notice; (ii) . at all times during the period beginning on the related Put Notice Date and ending on and including the related Closing Date, the Common Stock shall have been listed or quoted for trading on the Principal Market and shall not have been suspended from trading thereon for a period of five two (52) consecutive Trading Days during the Open Period and the Company shall not have been notified of any pending or threatened proceeding or other action to delist or suspend thetrading of the Common Stock; (iii) . the Company has complied with its obligations and is otherwise not in breach of a material provision of, or in default under, this Agreement, the Registration Rights Agreement or any other agreement executed in connection herewith between the parties, which has not been corrected cured prior to delivery of the Investor’s Put Notice DateNoticeDate; (iv) . no injunction shall have been issued and remain in force, or action commenced by a governmental authority which has not been stayed or abandoned, prohibiting the purchase or the issuance of the Securities; and (v) v. the issuance of the Securities will not violate the any shareholder approval requirements of the Principal Market. If any of the events described in clauses (i) through (v) above occurs during a Pricing Period, then the Investor shall have no obligation to purchase the Put Amount of Common Stock set forth in the applicable Put Notice.