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Common use of Exchange Cap Clause in Contracts

Exchange Cap. Subject to Section 2(f)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby (taking into account all shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Market or (2) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Market (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the stockholders of the Company have in fact approved the issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ Stock Market, and the Certificate of Incorporation and Bylaws of the Company. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii) below).

Appears in 1 contract

Samples: Purchase Agreement (Zosano Pharma Corp)

Exchange Cap. Subject to Section 2(f)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby would be equal to or greater than 4,609,169 shares of Common Stock, representing 19.99% of the shares of Common Stock outstanding on the date of this Agreement (taking into account all which number of shares shall be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Nasdaq Global Market or (2any other Principal Market on which the Common Stock may be listed or quoted) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Market (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the stockholders of the Company have in fact approved the such issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ the Nasdaq Global Market, any other Principal Market on which the Common Stock Marketmay be listed or quoted, and the Company’s Certificate of Incorporation Incorporation, as amended (the “Certificate of Incorporation”), and Bylaws of the Company’s Bylaws, as amended (the “Bylaws”). For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii) below).

Appears in 1 contract

Samples: Purchase Agreement (Leap Therapeutics, Inc.)

Exchange Cap. Subject to Section 2(f)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby would be equal or greater to 15,606,426 shares of Common Stock, representing 19.99% of the shares of Common Stock outstanding on the date of this Agreement (taking into account all which number of shares shall be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Nasdaq Capital Market or (2any other Principal Market on which the Common Stock may be listed or quoted) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Market (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the stockholders of the Company have in fact approved the such issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ the Nasdaq Capital Market, any other Principal Market on which the Common Stock Marketmay be listed or quoted, and the Certificate Company’s Articles of Incorporation Incorporation, as amended and Bylaws as in effect on the date hereof (the “Articles of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”). For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii) below).

Appears in 1 contract

Samples: Purchase Agreement (Anavex Life Sciences Corp.)

Exchange Cap. Subject to Section 2(f)(ii) below3.3(b), the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement and the transactions contemplated hereby would exceed [•]2 (such number of shares equal to 19.99% of the maximum number of shares of Common Stock that issued and outstanding immediately prior to the Company may issue pursuant to Closing on the Closing Date under this Agreement and Agreement), which number of shares shall be reduced, on a share-for-share basis, by the transactions contemplated hereby (taking into account all number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Market or (2) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Trading Market (such maximum number of shares, the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the Company’s stockholders of the Company have in fact approved the issuance of Common Stock as contemplated by pursuant to this Agreement in excess of the Exchange Cap in accordance with the applicable rules and regulations of The NASDAQ Stock Market, and the Certificate of Incorporation and Bylaws of the CompanyTrading Market. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by pursuant to this Agreement; provided, that if such stockholder approval is not obtained in accordance with this Section 2(f)(i)obtained, the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii3.3(b)). 2 To be inserted by amendment to this agreement on the Closing Date. SeaStar Medical and/or LMFAO to confirm with Nasdaq that the Exchange Cap will be calculated at Closing, since that is when this agreement is “effective” (aside from Commitment Fee and legal fee reimbursement obligations) below)and pre-merger effective time capital structure is not relevant to what post-merger cap structure of the Company will be etc. Also, the commitment shares are being calculated based on market price of post-merger Company, not LMFAO market price of Class A common stock.

Appears in 1 contract

Samples: Common Stock Purchase Agreement (LMF Acquisition Opportunities Inc)

Exchange Cap. Subject to Section 2(f)(ii) below2.3(b), the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement and the transactions contemplated hereby would exceed 7,361,833 (such number of shares equal to 19.99% of the maximum number of shares of Common Stock that issued and outstanding immediately prior to the Company may issue pursuant to execution of this Agreement and Agreement), which number of shares shall be reduced in the transactions contemplated hereby (taking into account all VWAP Purchase, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Market or (2) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Trading Market (such maximum number of shares, the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the Company’s stockholders of the Company have in fact approved the issuance of Common Stock as contemplated by pursuant to this Agreement in excess of the Exchange Cap in accordance with the applicable rules and regulations of The NASDAQ Stock Market, and the Certificate of Incorporation and Bylaws of the CompanyTrading Market. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by pursuant to this Agreement; provided, that if such stockholder approval is not obtained in accordance with this Section 2(f)(i)obtained, the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii) below2.3(b)). For the further avoidance of doubt, in no event shall settlement of any VWAP Purchase be dependent on a stockholder vote.

Appears in 1 contract

Samples: Common Stock Purchase Agreement (Super League Gaming, Inc.)

Exchange Cap. Subject to Section 2(f)(ii2(g)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby would be equal to or greater than 3,017,625 shares of Common Stock, representing 19.99% of the shares of Common Stock outstanding on the date of this Agreement (taking into account all which number of shares shall be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Nasdaq Capital Market or (2any other Principal Market on which the Common Stock may be listed or quoted) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Market (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the stockholders of the Company have in fact approved the such issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ Nasdaq Capital Market, any other Principal Market on which the Common Stock Marketmay be listed or quoted, and the Company’s Certificate of Incorporation Incorporation, as amended and Bylaws as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Bylaws, as amended (the “Bylaws”). For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i2(g)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii2(g)(ii) below).

Appears in 1 contract

Samples: Purchase Agreement (Viveve Medical, Inc.)

Exchange Cap. Subject to Section 2(f)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby would be equal to or greater than 5,227,323 shares of Common Stock, representing 19.99% of the shares of Common Stock outstanding on the date of this Agreement (taking into account all which number of shares shall be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Nasdaq Capital Market or (2any other Principal Market on which the Common Stock may be listed or quoted) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Market (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the stockholders of the Company have in fact approved the such issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ the Nasdaq Capital Market, any other Principal Market on which the Common Stock Marketmay be listed or quoted, and the Company’s Certificate of Incorporation and Bylaws Incorporation, in effect as of the Execution Date (the “Certificate of Incorporation”), and the Company’s Amended and Restated Bylaws, in effect as of the Execution Date (the “Bylaws”). For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii) below).

Appears in 1 contract

Samples: Purchase Agreement (Genocea Biosciences, Inc.)

Exchange Cap. Subject to Section 2(f)(ii2(e)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby (taking into account all shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Nasdaq Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Nasdaq Stock Market or (2) obtaining stockholder approval under the applicable rules of The NASDAQ Nasdaq Stock Market (which maximum number of shares is 4,654,694, representing 19.99% of the shares of Common Stock outstanding on the date of this Agreement) (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the stockholders of the Company have in fact approved the issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ Nasdaq Stock Market, and the Certificate of Incorporation and Bylaws of the Company. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i2(e)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii2(e)(ii) below).

Appears in 1 contract

Samples: Purchase Agreement (Obalon Therapeutics Inc)

Exchange Cap. Subject to Section 2(f)(ii2(e)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby (taking into account all shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Nasdaq Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Nasdaq Stock Market or (2) obtaining stockholder approval under the applicable rules of The NASDAQ Nasdaq Stock Market (which maximum number of shares is 1,545,553 representing 19.99% of the shares of Common Stock outstanding on the date of this Agreement) (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the stockholders of the Company have in fact approved the issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ Nasdaq Stock Market, and the Certificate of Incorporation and Bylaws of the Company. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i2(e)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii2(e)(ii) below).

Appears in 1 contract

Samples: Purchase Agreement (Obalon Therapeutics Inc)

Exchange Cap. Subject to Section 2(f)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby would be equal or greater to 20,410,708 shares of Common Stock, representing 19.99% of the shares of Common Stock outstanding on the date of this Agreement (taking into account all which number of shares shall be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Nasdaq Global Market or (2any other Principal Market on which the Common Stock may be listed or quoted) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Market (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the stockholders of the Company have in fact approved the such issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ the Nasdaq Global Market, any other Principal Market on which the Common Stock Marketmay be listed or quoted, and the Company’s Amended and Restated Certificate of Incorporation Incorporation, as amended (the “Certificate of Incorporation”), and Bylaws of the Company’s Amended and Restated Bylaws, as amended (the “Bylaws”). For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii) below).

Appears in 1 contract

Samples: Purchase Agreement (Microvision, Inc.)

Exchange Cap. Subject to Section 2(f)(ii) below2.4(b), the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement and the transactions contemplated hereby would exceed 9,171,179 (such number of shares equal to 19.99% of the maximum number of shares of Common Stock that issued and outstanding immediately prior to the Company may issue pursuant to execution of this Agreement and Agreement), which number of shares shall be reduced, on a share-for-share basis, by the transactions contemplated hereby (taking into account all number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Market or (2) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Trading Market (such maximum number of shares, the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the Company’s stockholders of the Company have in fact approved the issuance of Common Stock as contemplated by pursuant to this Agreement in excess of the Exchange Cap in accordance with the applicable rules and regulations of The NASDAQ Stock Market, and the Certificate of Incorporation and Bylaws of the CompanyTrading Market. For the avoidance of doubt, as set forth in Section 5.17, the Company may, but shall be under no obligation to, request use its stockholders reasonable best efforts to approve obtain the issuance Shareholder Approval to issue such number of shares of its Common Stock in excess of the Exchange Cap as contemplated by may be necessary for the Company to receive aggregate gross proceeds equal to the Total Commitment from the sale of Shares to the Investor pursuant to VWAP Purchases and/or Alternative VWAP Purchases pursuant to this Agreement, and the Company may not deliver any VWAP Purchase Notice or Alternative VWAP Purchase Notice and may not sell any Shares to the Investor pursuant to this Agreement unless and until the Company shall have obtained the Shareholder Approval in accordance with Section 5.17 and this Section 2.4(a) and in accordance with applicable rules of the Trading Market, applicable laws of the State of Oregon and the Company’s Charter and Bylaws; provided, that if stockholder approval such Shareholder Approval is not obtained in accordance with this Section 2(f)(i)obtained, the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii) below2.4(b)).

Appears in 1 contract

Samples: Common Stock Purchase Agreement (Arcimoto Inc)

Exchange Cap. Subject to Section 2(f)(ii) below, the The Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock Registrable Shares that would be issued pursuant to this Agreement and the transactions contemplated by the Transaction Documents would exceed the maximum number of 9,482,468 shares of Common Stock that (representing the Company may issue pursuant to this Agreement lower of the 19.99% voting power threshold and the transactions contemplated hereby (taking into account all 19.99% share and share equivalent thresholds referenced in Section 312.03(c) of the NYSE Listed Company Manual), which number of shares shall be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement the Transaction Documents under applicable rules of The NASDAQ Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Market or (2) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Principal Market (such maximum number of shares, the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the Company’s stockholders of the Company have in fact approved the issuance of Common Stock as contemplated by pursuant to this Agreement in excess of the Exchange Cap in accordance with the applicable rules and regulations of The NASDAQ Stock Market, and the Certificate of Incorporation and Bylaws of the CompanyPrincipal Market or such approval is not required in accordance with the applicable rules of the Principal Market or otherwise. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by pursuant to this Agreement; provided, that if such stockholder approval is not obtained in accordance with this Section 2(f)(i)obtained, the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby by the Transaction Documents at all times during the term of this Agreement (except as set forth in Section 2(f)(ii) below3.3(b)).

Appears in 1 contract

Samples: Chef Purchase Agreement (Allurion Technologies, Inc.)

Exchange Cap. Subject to Section 2(f)(ii) belowNotwithstanding anything contained herein, the Company shall not issue or sell any shares Ordinary Shares (or ADSs representing Ordinary Shares, including, in both cases, pursuant to the exercise of Common Stock Pre-Funded Warrants) pursuant to this Agreement, and the Investor Purchasers shall not purchase or acquire any shares of Common Stock Ordinary Shares (or ADSs representing Ordinary Shares including, in both cases, pursuant to the exercise of Pre-Funded Warrants) from the Company pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock ADSs that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby would exceed 1,320,616 ADSs, representing 2,641,231,384 Ordinary Shares (taking into account all such number of shares equal to 19.99% of Common Stock the Ordinary Shares issued and outstanding immediately prior to the execution of this Agreement), which number of shares shall be (i) reduced, on a share-for-share basis, by the number of Ordinary Shares issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Nasdaq Stock Market and (ii) appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction that occurs after the date of this Agreement (2) obtaining stockholder approval under the applicable rules such maximum number of The NASDAQ Stock Market (shares, the “Exchange Cap”), unless and until the Company elects to solicit stockholder obtain shareholder approval of the issuance of Common Stock Ordinary Shares as contemplated by this Agreement Agreement, and the stockholders shareholders of the Company have in fact approved the issuance of Common Stock Ordinary Shares as contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ Nasdaq Stock Market, and the Certificate of Incorporation and Bylaws Market in excess of the CompanyExchange Cap. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders shareholders to approve the issuance of Common Stock Ordinary Shares in excess of the Exchange Cap as contemplated by this Agreement; provided, that if stockholder shareholder approval is not obtained in accordance with this Section 2(f)(i)2.4, the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby hereby, including, without limitation, the issuance of Ordinary Shares and related ADSs in connection with the exercise of Pre-Funded Warrants, at all times during the term of this Agreement (except as set forth in Section 2(f)(ii) below)times.

Appears in 1 contract

Samples: Securities Purchase Agreement (Akari Therapeutics PLC)

Exchange Cap. Subject to Section 2(f)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby would exceed 15,119,694 (taking into account all representing 19.99% of the shares of Common Stock issued and outstanding immediately prior to the execution of this Agreement), which number of shares shall be (i) reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ the New York Stock MarketExchange and (ii) without appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction that occurs after the date of this Agreement (1) breaching the Company’s obligations under the applicable rules such maximum number of The NASDAQ Stock Market or (2) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Market (shares, the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement Agreement, and the stockholders of the Company have in fact approved the issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ Stock Market, and the Certificate of Incorporation and Bylaws of the CompanyNew York Stock Exchange. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii) below).

Appears in 1 contract

Samples: Purchase Agreement (Lightning eMotors, Inc.)

Exchange Cap. Subject to Section 2(f)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any DOCPROPERTY "CUS_DocIDChunk0" 4856-0098-9995\3 shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby would exceed 13,100,011 (taking into account all representing 19.99% of the shares of Common Stock issued and outstanding immediately prior to the execution of this Agreement), which number of shares shall be (i) reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Nasdaq Stock Market and (ii) appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction that occurs after the date of this Agreement (2) obtaining stockholder approval under the applicable rules such maximum number of The NASDAQ Stock Market (shares, the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement Agreement, and the stockholders of the Company have in fact approved the issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ Nasdaq Stock Market, and the Certificate of Incorporation and Bylaws of the Company. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii) below).

Appears in 1 contract

Samples: Purchase Agreement (Kintara Therapeutics, Inc.)

Exchange Cap. Subject to Section 2(f)(ii2(e)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby would exceed 23,010,698 shares of Common Stock (taking into account all which number of shares shall be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ the NYSE MKT or any other Principal Market on which the Common Stock Marketmay be listed or quoted) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Market or (2) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Market (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the stockholders of the Company have in fact approved the such issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ the NYSE MKT, any other Principal Market on which the Common Stock Marketmay be listed or quoted, and the Certificate of Incorporation and Bylaws of the Company. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i2(e)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii2(e)(ii) below).

Appears in 1 contract

Samples: Purchase Agreement (Transenterix Inc.)

Exchange Cap. Subject to Section 2(f)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby would be equal or greater to 10,076,680 shares of Common Stock, representing 19.99% of the shares of Common Stock outstanding on the date of this Agreement (taking into account all which number of shares shall be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Nasdaq Capital Market or (2any other Principal Market on which the Common Stock may be listed or quoted) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Market (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the stockholders of the Company have in fact approved the such issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ the Nasdaq Capital Market, any other Principal Market on which the Common Stock Marketmay be listed or quoted, and the Certificate Company’s Articles of Incorporation Incorporation, as amended (the “Articles of Incorporation”), and Bylaws of the Company’s Bylaws, as amended (the “Bylaws”). For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii) below).

Appears in 1 contract

Samples: Purchase Agreement (Anavex Life Sciences Corp.)

Exchange Cap. Subject to Section 2(f)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby would be equal or greater to 5,015,730 shares of Common Stock (taking into account all to be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction), representing 19.99% of the shares of Common Stock outstanding on the date of this Agreement (which number of shares shall be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Nasdaq Capital Market or (2any other Principal Market on which the Common Stock may be listed or quoted) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Market (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the stockholders of the Company have in fact approved the such issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ the Nasdaq Capital Market, any other Principal Market on which the Common Stock Marketmay be listed or quoted, and the Company’s Certificate of Incorporation Incorporation, as amended (the “Certificate of Incorporation”), and Bylaws of the Company’s Bylaws, as amended (the “Bylaws”). For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii) below).

Appears in 1 contract

Samples: Purchase Agreement (Phio Pharmaceuticals Corp.)

Exchange Cap. Subject to Section 2(f)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby would exceed 94,220,451 (taking into account all representing 19.99% of the shares of Common Stock issued and outstanding immediately prior to the execution of this Agreement), which number of shares shall be (i) reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Nasdaq Stock Market and (ii) appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction that occurs after the date of this Agreement (2) obtaining stockholder approval under the applicable rules such maximum number of The NASDAQ Stock Market (shares, the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement Agreement, and the stockholders of the Company have in fact approved the issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ Nasdaq Stock Market, and the Certificate of Incorporation and Bylaws of the Company. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii) below).

Appears in 1 contract

Samples: Purchase Agreement (Tonix Pharmaceuticals Holding Corp.)

Exchange Cap. Subject to Section 2(f)(iiUnless the Parent first obtains shareholder approval in accordance with sections 604(a) belowand 607(g) of the TSX Company Manual, as applicable, in no circumstances shall the Company shall not Parent issue or sell any shares Common Shares upon the exchange of Common Stock pursuant to this AgreementPreferred Shares, and the Investor Investors (either individually or in the aggregate, as the case may be) shall not purchase have the right to effect an exchange of Preferred Shares or acquire any shares receive Common Shares upon conversion of Common Stock pursuant to this AgreementPreferred Shares, to the extent that the issuance of such Common Shares pursuant to such exchange would (i) in respect of issuances to any Investor (including any Person acting in combination or in concert with such Investor) (any Investor and any such Persons are referred to herein as an "Investor Group"), result in such Investor Group holding 19.9% or more of the issued and outstanding number of Common Shares (including, for greater certainty, securities held by the Investors prior to the date hereof)immediately after giving effect theretoto such exchange; and (ii) in respect to all issuances hereunder in the aggregate, result in the aggregate issuance of 63,000,000 or more Common Shares (representing a maximum of 25% of the issued and outstanding number of shares Common Shares calculated as of Common Stock immediately prior to the execution of this Agreement; provided, however, that would be issued pursuant to this Agreement would exceed the such maximum number of shares of Common Stock that Shares is to be adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction after the Company may issue pursuant to this Agreement and date hereof) (the transactions contemplated hereby percentage set forth in clause (taking into account all shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Marketi) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Market or (2) obtaining stockholder approval under ii), as applicable, the applicable rules of The NASDAQ Stock Market (the “"Exchange Cap"), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the stockholders of the Company have in fact approved the issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ Stock Market, and the Certificate of Incorporation and Bylaws of the Company. For the avoidance of doubt, any issuances that are made in contravention of the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i), the foregoing Exchange Cap shall be applicable for deemed void ab initio. For greater certainty, upon receipt of any such shareholder approval by Parent, the foregoing limitations shall not apply and Parent shall thereafter be required to issue all purposes of this Agreement and such Common Shares as are issuable pursuant to the transactions contemplated hereby at all times during the term of this Agreement (except as terms set forth in Section 2(f)(ii) belowthis Agreement. Until any such requisite approval is obtained, no Investor shall be issued in the aggregate, upon exchange of Preferred Shares, Common Shares in an amount greater than the product of the Exchange Cap multiplied by a fraction, the numerator of which is the number of Preferred Shares issued to such Investor pursuant to this Agreement on the Closing Date and the denominator of which is the aggregate number of all Preferred Shares issued to the Investors pursuant to this Agreement on the Closing Date (with respect to each such Investor, the "Exchange Cap Allocation"). In the event that any Investor shall sell or otherwise transfer any of such Investor's Preferred Shares, the transferee shall be allocated a pro rata portion of such Investor's Exchange Cap Allocation, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation allocated to such transferee. In the event that any Investor shall exchange all of such Investor's Preferred Shares into a number of shares of Common Shares which, in the aggregate, is less than such Investor's Exchange Cap Allocation, then the difference between such Investor's Exchange Cap Allocation and the number of Common Shares actually issued to such Investor shall be allocated to the respective Exchange Cap Allocations of the remaining Investors on a pro rata basis in proportion to the shares of Common Stock underlying the Preferred Shares then held by each such Investor.

Appears in 1 contract

Samples: Securities Purchase Agreement (Banro Corp)

Exchange Cap. Subject to Section 2(f)(ii2(e)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby would exceed 4,538,320 shares of Common Stock, representing 19.99% of the shares of Common Stock outstanding on the date of this Agreement (taking into account all which number of shares shall be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Nasdaq Global Select Market or (2any other Principal Market on which the Common Stock may be listed or quoted) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Market (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the stockholders of the Company have in fact approved the such issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ the Nasdaq Global Select Market, any other Principal Market on which the Common Stock Marketmay be listed or quoted, and the Company’s Certificate of Incorporation Incorporation, as amended (the “Certificate of Incorporation”), and Bylaws of the Company’s Amended and Restated Bylaws, as amended (the “Bylaws”). For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by this Agreement; 194229821 v2 provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i2(e)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii2(e)(ii) below).

Appears in 1 contract

Samples: Purchase Agreement (Aptevo Therapeutics Inc.)

Exchange Cap. Subject to Section 2(f)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby would exceed 65,819,361 (taking into account all representing 19.99% of the shares of Common Stock issued and outstanding immediately prior to the execution of this Agreement), which number of shares shall be (i) reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Nasdaq Stock Market and (ii) appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction that occurs after the date of this Agreement (2) obtaining stockholder approval under the applicable rules such maximum number of The NASDAQ Stock Market (shares, the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement Agreement, and the stockholders of the Company have in fact approved the issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ Nasdaq Stock Market, and the Certificate of Incorporation and Bylaws of the Company. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii) below).

Appears in 1 contract

Samples: Purchase Agreement (Tonix Pharmaceuticals Holding Corp.)

Exchange Cap. Subject to Section 2(f)(ii) below3.3(b), the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement and the transactions contemplated hereby would exceed [●]2 (such number of shares equal to 19.99% of the maximum number of shares of Common Stock that issued and outstanding immediately prior to the Company may issue pursuant to Closing on the Closing Date under this Agreement and Agreement), which number of shares shall be reduced, on a share-for-share basis, by the transactions contemplated hereby (taking into account all number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Nasdaq Stock Market or LLC (2) obtaining stockholder approval under the applicable rules such maximum number of The NASDAQ Stock Market (shares, the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the Company’s stockholders of the Company have in fact approved the issuance of Common Stock as contemplated by pursuant to this Agreement in excess of the Exchange Cap in accordance with the applicable rules and regulations of The NASDAQ Nasdaq Stock Market, and Market LLC or the Certificate Company shall have received a financial viability exception in accordance with the applicable rules of Incorporation and Bylaws of the CompanyThe Nasdaq Stock Market LLC. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by or seek a financial viability exception in accordance with the applicable rules of The Nasdaq Stock Market LLC pursuant to this Agreement; provided, that if such stockholder approval or financial viability exception is not obtained in accordance with this Section 2(f)(i)obtained, the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii) below3.3(b)).

Appears in 1 contract

Samples: Common Stock Purchase Agreement (Alpha Healthcare Acquisition Corp Iii)

Exchange Cap. Subject to Section 2(f)(ii) below3.3(b), the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement and the transactions contemplated hereby would exceed 2,648,385 shares of Common Stock (such number of shares equal to 19.99% of the maximum aggregate number of shares of Common Stock that issued and outstanding immediately prior to the Company may issue pursuant to execution of this Agreement and Agreement), which number of shares shall be reduced, on a share-for-share basis, by the transactions contemplated hereby (taking into account all number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Market) without the NYSE American LLC (1) breaching the Company’s obligations under the applicable rules such maximum number of The NASDAQ Stock Market or (2) obtaining stockholder approval under the applicable rules shares of The NASDAQ Stock Market (Common Stock, the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the Company’s stockholders of the Company have in fact approved the issuance of Common Stock as contemplated by pursuant to this Agreement in excess of the Exchange Cap in accordance with the applicable rules and regulations of The NASDAQ Stock Market, and the Certificate of Incorporation and Bylaws of the CompanyNYSE American LLC. For the avoidance of doubt, as set forth in Section 6.16, the Company may, but shall be under no obligation to, request use its stockholders reasonable best efforts to approve obtain the issuance Stockholder Approval to issue such number of shares of its Common Stock in excess of the Exchange Cap as contemplated by may be necessary for the Company to receive aggregate gross proceeds equal to the Total Commitment from the sale of Shares to the Investor pursuant to VWAP Purchases pursuant to this Agreement; provided, that if stockholder approval such Stockholder Approval is not obtained in accordance with this Section 2(f)(i)obtained, the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii) below3.3(b)).

Appears in 1 contract

Samples: Common Stock Purchase Agreement (Signing Day Sports, Inc.)

Exchange Cap. Subject to Section 2(f)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby would be equal to or greater than 14,197,884 shares of Common Stock (taking into account all subject to adjustment for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction), representing 19.99% of the shares of Common Stock outstanding on the Execution Date (which number of shares shall be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Nasdaq Global Market or (2any other Principal Market on which the Common Stock may be listed or quoted) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Market (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the stockholders of the Company have in fact approved the such issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ the Nasdaq Global Market, any other Principal Market on which the Common Stock Marketmay be listed or quoted, and the Company’s Certificate of Incorporation Incorporation, as amended and Bylaws in effect as of the Execution Date (the “Certificate of Incorporation”), and the Company’s Amended and Restated Bylaws, as amended and in effect as of the Execution Date (the “Bylaws”). For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii) below).

Appears in 1 contract

Samples: Purchase Agreement (Alimera Sciences Inc)

Exchange Cap. Subject to Section 2(f)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby would be equal or greater to 24,766,904 shares of Common Stock, representing 19.99% of the shares of Common Stock outstanding on the date of this Agreement (taking into account all which number of shares shall be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Nasdaq Global Market or (2any other Principal Market on which the Common Stock may be listed or quoted) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Market (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the stockholders of the Company have in fact approved the such issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ the Nasdaq Global Market, any other Principal Market on which the Common Stock Marketmay be listed or quoted, and the Company’s Amended and Restated Certificate of Incorporation Incorporation, as amended (the “Certificate of Incorporation”), and Bylaws of the Company’s Amended and Restated Bylaws, as amended (the “Bylaws”). For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii) below).

Appears in 1 contract

Samples: Purchase Agreement (Microvision, Inc.)

Exchange Cap. Subject to Section 2(f)(ii2(e)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby (taking into account all shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock MarketNYSE AMERICAN LLC) without (1A) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Market NYSE AMERICAN LLC or (2B) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Market NYSE AMERICAN LLC (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as transactions contemplated by this Agreement and the stockholders of the Company have in fact approved the issuance of Common Stock as transactions contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ Stock Market, NYSE AMERICAN LLC and the Certificate of Incorporation and Bylaws of the Company. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as transactions contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i2(e)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii2(e)(ii) below).

Appears in 1 contract

Samples: Equity Purchase Agreement (Comstock Inc.)

Exchange Cap. Subject to Section 2(f)(ii2(e)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby (taking into account all shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock MarketMarket or any other Principal Market on which the Common Stock may be listed or quoted) without (1A) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Market or (2B) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Market (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the stockholders of the Company have in fact approved the such issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ Stock Market, Market and the Certificate of Incorporation and Bylaws of the Company. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i2(e)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii2(e)(ii) below).

Appears in 1 contract

Samples: Purchase Agreement (Anthera Pharmaceuticals Inc)

Exchange Cap. Subject to Section 2(f)(ii2.4(b) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby (taking into account all shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Market or (2) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Market (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as transactions contemplated by this Agreement and the stockholders of the Company have in fact approved the issuance of Common Stock as transactions contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ Stock Market, and the Certificate of Incorporation and Bylaws of the Company. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as transactions contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i2.4(a), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii2.4(b) below).

Appears in 1 contract

Samples: Purchase Agreement (Ascent Solar Technologies, Inc.)

Exchange Cap. Subject to Section 2(f)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement and the transactions contemplated hereby would exceed 47,099,574 (such number of shares equal to 19.99% of the maximum aggregate number of shares of Common Stock that and shares of the Company may issue pursuant Company’s Class C common stock, par value $0.0001 per share, combined, issued and outstanding immediately prior to the execution of this Agreement and Agreement), which number of shares shall be (i) reduced, on a share-for-share basis, by the transactions contemplated hereby (taking into account all number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Nasdaq Stock Market and (ii) appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction that occurs after the date of this Agreement (2) obtaining stockholder approval under the applicable rules such maximum number of The NASDAQ Stock Market (shares, the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement Agreement, and the stockholders of the Company have in fact approved the issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ Nasdaq Stock Market, and the Certificate of Incorporation and Bylaws of the Company. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii) below).

Appears in 1 contract

Samples: Purchase Agreement (Berkshire Grey, Inc.)

Exchange Cap. Subject to Section 2(f)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby would be equal to or greater than 1,088,795 shares of Common Stock, representing 19.99% of the shares of Common Stock outstanding on the date of this Agreement (taking into account all which number of shares shall be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Nasdaq Capital Market or (2any other Principal Market on which the Common Stock may be listed or quoted) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Market (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the stockholders of the Company have in fact approved the such issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ Nasdaq Capital Market, any other Principal Market on which the Common Stock Marketmay be listed or quoted, and the Company’s Certificate of Incorporation Incorporation, as amended (the “Certificate of Incorporation”), and Bylaws of the Company’s Bylaws, as amended (the “Bylaws”). For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii) below).

Appears in 1 contract

Samples: Purchase Agreement (PECK Co HOLDINGS, INC.)

Exchange Cap. Subject to Section 2(f)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby would be equal to or greater than a number shares of Common Stock representing 19.99% of the shares of Common Stock outstanding on the date of this Agreement (taking into account all which number of shares shall be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Nasdaq Capital Market or (2any other Principal Market on which the Common Stock may be listed or quoted) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Market (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval is obtained to issue in excess of the issuance Exchange Cap; provided, however, that the foregoing limitation shall not apply if at any time the Exchange Cap is reached and at all times thereafter the average price paid for all shares of Common Stock as contemplated by issued under this Agreement is equal to or greater than $9.95 (the “Minimum Price”), a price equal to the lower of (i) the Nasdaq Official Closing Price (as defined by the Principal Market and as reflected on xxx.xxxxxx.xxx) immediately preceding the stockholders execution of this Agreement or (ii) the arithmetic average of the Company have in fact approved five (5) Nasdaq Official Closing Prices for the issuance of Common Stock immediately preceding the execution of this Agreement, as contemplated by this Agreement calculated in accordance with the applicable rules of the Principal Market (in such circumstance, for purposes of the Principal Market, the transaction contemplated hereby would not be “below market” and regulations of The NASDAQ Stock Marketthe Exchange Cap would not apply). Notwithstanding the foregoing, the Company shall not be required or permitted to issue, and the Certificate of Incorporation and Bylaws of the Company. For the avoidance of doubtInvestor shall not be required to purchase, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance any shares of Common Stock as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i), the Exchange Cap shall be applicable for all purposes of under this Agreement and if such issuance would violate the transactions contemplated hereby at all times during rules or regulations of the term of this Agreement (except as set forth in Section 2(f)(ii) below)Principal Market.

Appears in 1 contract

Samples: Purchase Agreement (Growth Capital Acquisition Corp.)

Exchange Cap. Subject to Section 2(f)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby would be equal or greater to 1,989,489 shares of Common Stock, representing 19.99% of the shares of Common Stock outstanding on the date of this Agreement (taking into account all which number of shares shall be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Nasdaq Capital Market or (2any other Principal Market on which the Common Stock may be listed or quoted) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Market (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the stockholders of the Company have in fact approved the such issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ the Nasdaq Capital Market, any other Principal Market on which the Common Stock Marketmay be listed or quoted, and the Company’s Amended and Restated Certificate of Incorporation Incorporation, as amended (the “Certificate of Incorporation”), and Bylaws of the Company’s Amended and Restated Bylaws, as amended (the “Bylaws”). For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(f)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii) below).

Appears in 1 contract

Samples: Purchase Agreement (Caladrius Biosciences, Inc.)

Exchange Cap. Subject to Section 2(f)(ii) below, the The Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement and the transactions contemplated hereby would exceed the maximum such number of shares of Common Stock that representing the Company may issue pursuant to this Agreement lower of (i) 19.99% of the voting power of the Common Stock and (ii) 19.99% of the transactions contemplated hereby (taking into account all number of shares of issued and outstanding Common Stock, in each case, calculated immediately following the closing of the Merger in accordance with the applicable rules of the Principal Market, which number of shares shall be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The NASDAQ Stock Market) without (1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Market or (2) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Principal Market (including, but not limited to, issuances of convertible notes and warrants to purchase shares of Common Stock that may be so aggregated) (such maximum number of shares, the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the Company’s stockholders of the Company have in fact approved the issuance of Common Stock as contemplated by pursuant to this Agreement in excess of the Exchange Cap in accordance with the applicable rules and regulations of The NASDAQ Stock Market, and the Certificate of Incorporation and Bylaws of the CompanyPrincipal Market. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by pursuant to this Agreement; provided, that if such stockholder approval is not obtained in accordance with this Section 2(f)(i)obtained, the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(f)(ii) below)Agreement.

Appears in 1 contract

Samples: Common Stock Purchase Agreement (Tuatara Capital Acquisition Corp)