Common use of Conversion Conditions Clause in Contracts

Conversion Conditions. Notwithstanding Section 2.4(h)(i) or 2.4(h)(iii), Borrower’s right to deliver, and Lender’s obligation to accept, shares of Common Stock in lieu of payment in cash of a Principal Installment Payment is conditioned on the satisfaction of each of the following conditions (collectively, the “Conversion Conditions”) as of such Delivery Date: (A) the closing price of the shares of Common Stock as reported by Bloomberg, L.P. on the Nasdaq stock market (the “Nasdaq”) or other national securities exchange for each of the seven (7) consecutive trading days immediately preceding the Delivery Date shall be greater than or equal to the Fixed Conversion Price; (B) the Common Stock issued in connection with any such payment does not exceed 15% of the total trading volume of the Common Stock for the twenty-two (22) consecutive trading days immediately prior to and including such Delivery Date; (C) only one Borrower Conversion Election Notice and Agent Conversion Election Notice may be given in any calendar month during the amortization period; (D) the Common Stock is (and was on each of the thirty (30) consecutive trading days immediately preceding such Delivery Date) quoted or listed on the Nasdaq or other national securities exchange; (E) a registration statement is effective and available for the resale of all of the shares of Common Stock to be delivered on such Delivery Date so that the shares of Common Stock can be sold without restriction by the Delivery Date and Lender shall not be subject to any lock-up or market standoff agreement which prohibits or restricts its ability to sell such shares of Common Stock; (F) after giving effect to the issuance of such shares of Common Stock to Lender, Lender would not (1) beneficially own, together with its Affiliates, Common Stock in excess of the limitations specified in subsection (h)(iv) below and (2) have been issued shares of Common Stock pursuant to all Borrower Conversion Election Notices and Agent Conversion Election Notices in an aggregate amount in excess of the Cap, as defined in subsection (h)(iv) below; (G) as of such Delivery Date, there is no outstanding Event of Default and there is no breach or default that, if left uncured, would result in an Event of Default; and (H) Borrower shall have sufficient authorized but unissued shares of Common Stock to provide for the issuance of the shares of Common Stock pursuant to the Borrower Conversion Election Notice or Agent Conversion Election Notice, as applicable. If any of the Conversion Conditions are not satisfied as of a Delivery Date, Borrower shall not be permitted to pay, and Lender shall not be obligated to accept, the Principal Installment Payment in shares of Common Stock, and Borrower shall instead pay such principal amount in cash; provided, however, that the Conversion Conditions set forth in clauses (A), (B), (C), (D), (E) and (G) above may be waived by a writing executed by both Borrower and Agent. In the event the Borrower is relying upon an effective registration statement to satisfy clause (E) of the Conversion Conditions, each of the Borrower and Lender shall provide customary indemnification to one another with respect to such registration statement in a form acceptable to the Borrower and Lender.

Conversion Conditions. Notwithstanding Section 2.4(h)(i) or 2.4(h)(iii)the foregoing, Borrower’s right to deliver, and Lender’s obligation to accept, shares of Common Stock in lieu of payment in cash of a Principal Installment Payment is conditioned on the satisfaction of each of the following conditions (collectively, the “Conversion Conditions”) as of such Delivery Date: (A) the closing price of the shares of Common Stock as reported by Bloomberg, L.P. on the Nasdaq NYSE MKT stock market (the “NasdaqNYSE MKT”) or other national securities exchange for each of the seven (7) consecutive trading days immediately preceding the Delivery Date shall be greater than or equal to the Fixed Conversion Price; (B) the Common Stock issued in connection with any such payment does not exceed 15% of the total trading volume of the Common Stock for the twenty-two (22) consecutive trading days immediately prior to and including such Delivery Date; (C) only one Borrower Conversion Election Notice and Agent Conversion Election Notice may be given in any calendar month during the amortization period; (D) the aggregate principal amount to be paid in shares of Common Stock pursuant to Section 2.1(f)(i) of this Agreement shall not exceed One Million Dollars ($1,000,000); (E) the Common Stock is (and was on each of the thirty twenty-two (3022) consecutive trading days immediately preceding such Delivery Date) quoted or listed on the Nasdaq NYSE MKT or other national securities exchange; (EF) a registration statement is effective and available for the resale of all of the shares of Common Stock to be delivered on such Delivery Date so that the Date, or such shares of Common Stock can be sold are eligible for resale to the public pursuant to Rule 144 without restriction by the Delivery Date and Lender shall not be subject to any lock-up or market standoff agreement which prohibits or restricts its ability to sell such shares of Common Stocklimitation; (FG) after giving effect to the issuance of such shares of Common Stock to Lender, Lender would not (1A) beneficially own, together with its Affiliatesaffiliates, Common Stock in excess of the limitations specified in subsection (h)(ivf)(iii) below and (2B) have been issued shares of Common Stock pursuant to all Borrower Conversion Election Notices and Agent Conversion Election Notices in an aggregate amount in excess of the Cap, as defined in subsection (h)(ivf)(iii) below; (GH) as of such Delivery Date, there is no outstanding Event of Default and there is no breach or default that, if left uncured, would result in an Event of Default; and (HI) Borrower shall have sufficient authorized but unissued shares of Common Stock to provide for the issuance of the shares of Common Stock pursuant to the Borrower Conversion Election Notice or Agent Conversion Election Notice, as applicable. If any of the Conversion Conditions are not satisfied as of a Delivery Date, Borrower shall not be permitted to pay, and Lender shall not be obligated to accept, the Principal Installment Payment in shares of Common Stock, and Borrower shall instead pay such principal amount in cash; provided, however, that the Conversion Conditions set forth in clauses (A), (B), (C), (DE), (EF) and (GH) above may be waived by a writing executed by both Borrower and AgentLender. In the event the Borrower Company is relying upon an effective registration statement to satisfy clause (EF) of the Conversion Conditions, each of the Borrower Company and Lender shall provide customary indemnification to one another with respect to such registration statement in a form acceptable to the Borrower Company and Lender. By no later than the first trading day following the Delivery Date, Borrower shall (provided that Borrower’s transfer agent is participating in the Fast Automated Securities Transfer Program of the Depository Trust Company) credit to Lender the shares of Common Stock to be delivered by Borrower with respect to the portion of the Principal Installment Payment being paid in shares of Common Stock.

Conversion Conditions. Notwithstanding Section 2.4(h)(i) or 2.4(h)(iii)the foregoing, BorrowerXxxxxxxx’s right to deliver, and LenderXxxxxx’s obligation to accept, shares of Common Stock in lieu of payment in cash of a Principal Installment Payment or Optional Prepayment, as applicable, is conditioned on the satisfaction of each of the following conditions (collectively, the “Conversion Conditions”) as of such Delivery Date: (A) the closing price of the shares of Common Stock as reported by Bloomberg, L.P. on the Nasdaq NYSE Amex stock market (the “NasdaqNYSE Amex”) or other national securities exchange for each of the seven (7) consecutive trading days immediately preceding the Delivery Date shall be greater than or equal to the Fixed Conversion Price$2.77; (B) the Common Stock issued in connection with any such payment does not exceed 15% of the total trading volume of the Common Stock for the twenty-two (22) consecutive trading days immediately prior to and including such Delivery Date; (C) only one Borrower Conversion Election Notice and Agent Conversion Election Notice may be given in any calendar month during the amortization periodmonth; (D) the aggregate principal amount to be paid in shares of Common Stock pursuant to Section 2.1(f)(i) of this Agreement shall not exceed One Million Five Hundred Thousand Dollars ($1,500,000); (E) the Common Stock is (and was on each of the thirty twenty-two (3022) consecutive trading days immediately preceding such Delivery Date) quoted or listed on the Nasdaq NYSE Amex or other national securities exchange; (EF) a registration statement is effective and available for the resale of all of the shares of Common Stock to be delivered on such Delivery Date so that the Date, or such shares of Common Stock can be sold are eligible for resale to the public pursuant to Rule 144 without restriction by the Delivery Date and Lender shall not be subject to any lock-up or market standoff agreement which prohibits or restricts its ability to sell such shares of Common Stocklimitation; (FG) after giving effect to the issuance of such shares of Common Stock to Lender, Lender would not (1A) beneficially own, together with its Affiliatesaffiliates, Common Stock in excess of the limitations specified in subsection (h)(ivf)(iii) below and (2B) have been issued shares of Common Stock pursuant to all Borrower Conversion Election Notices and Agent Conversion Election Notices in an aggregate amount in excess of the Cap, as defined in subsection (h)(ivf)(iii) below; (GH) as of such Delivery Date, there is no outstanding Event of Default and there is no breach or default that, if left uncured, would result in an Event of Default; and (HI) Borrower shall have sufficient authorized but unissued shares of Common Stock to provide for the issuance of the shares of Common Stock pursuant to the Borrower Conversion Election Notice or Agent Conversion Election Notice, as applicable. If any of the Conversion Conditions are not satisfied as of a Delivery Date, Borrower shall not be permitted to pay, and Lender shall not be obligated to accept, the Principal Installment Payment or Optional Prepayment, as applicable, in shares of Common Stock, and Borrower shall instead pay such principal amount in cash; provided, however, that the Conversion Conditions set forth in clauses (A), (B), (C), (DE), (EF) and (GH) above may be waived by a writing executed by both Borrower Xxxxxxxx and AgentXxxxxx. In the event the Borrower Company is relying upon an effective registration statement to satisfy clause (EF) of the Conversion Conditions, each of the Borrower Company and Lender shall provide customary indemnification to one another with respect to such registration statement in a form acceptable to the Borrower Company and Lender. By no later than the first trading day following the Delivery Date, Borrower shall either (i) (provided that Xxxxxxxx’s transfer agent is participating in the Fast Automated Securities Transfer Program of the Depository Trust Company) credit to Lender the shares of Common Stock to be delivered by Borrower with respect to the portion of the Principal Installment Payment or Optional Prepayment being paid in shares of Common Stock or (ii) deliver to Lender, certificates, free of restrictive legends, evidencing the shares of Common Stock to be delivered by Borrower with respect to the portion of the Principal Installment Payment or Optional Prepayment being paid in shares of Common Stock.