Common use of Exchange Cap Clause in Contracts

Exchange Cap. 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 greater of 19.99% of the combined shares of Common Stock plus the shares of the Company’s Class B common stock, par value $0.0001 per share (the “Class B Stock”), in each case issued and outstanding immediately prior to the execution 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 Trading Market (such maximum number of shares, the “Exchange Cap”), (x) unless the Company’s stockholders have approved the issuance of Common Stock pursuant to this Agreement in excess of the Exchange Cap in accordance with the applicable rules of the Trading Market, or (y) unless, and solely to the extent that, the Average Price shall equal or exceed the Base Price. 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 pursuant to this Agreement; provided, that if such stockholder approval is not 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.

Exchange Cap. The Subject to Section 3.4(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 (including the Commitment Shares) would exceed the greater 2,687,262 shares of Common Stock (such number of shares equal to 19.99% of the combined aggregate number of shares of Common Stock plus the shares of the Company’s Class B common stock, par value $0.0001 per share (the “Class B Stock”), in each case issued and outstanding immediately prior to the execution 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 Trading Market (such maximum number of sharesshares of Common Stock, the “Exchange Cap”), (x) unless the Company’s stockholders have approved the issuance of Common Stock pursuant to this Agreement in excess of the Exchange Cap in accordance with the applicable rules of the Trading Market, or (y) unless, and solely to the extent that, the Average Price shall equal or exceed the Base Price. 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 pursuant to this Agreement; provided, that if such stockholder approval is not 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 AgreementAgreement (except as set forth in Section 3.4(b)).

Exchange Cap. The Subject to Section 3.4(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 (including the Commitment Shares) would exceed the greater 5,847,725 shares of Common Stock (such number of shares equal to approximately 19.99% of the combined aggregate number of shares of Common Stock plus the shares of the Company’s Class B common stock, par value $0.0001 per share (the “Class B Stock”), in each case issued and outstanding immediately prior to the execution 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 Trading Market (such maximum number of sharesshares of Common Stock, the “Exchange Cap”), (x) unless the Company’s stockholders have approved the issuance of Common Stock pursuant to this Agreement in excess of the Exchange Cap in accordance with the applicable rules of the Trading Market, or (y) unless, and solely to the extent that, the Average Price shall equal or exceed the Base Price. 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 pursuant to this Agreement; provided, that if such stockholder approval is not 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 AgreementAgreement (except as set forth in Section 3.4(b)).

Exchange Cap. The Subject to Section 3.4(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 (including the Commitment Shares) would exceed the greater 9,569,701 shares of Common Stock (such number of shares equal to 19.99% of the combined aggregate number of shares of Common Stock plus the shares of the Company’s Class B common stock, par value $0.0001 per share (the “Class B Stock”), in each case issued and outstanding immediately prior to the execution 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 Trading Market (such maximum number of sharesshares of Common Stock, the “Exchange Cap”), (x) unless the Company’s stockholders have approved the issuance of Common Stock pursuant to this Agreement in excess of the Exchange Cap in accordance with the applicable rules of the Trading Market, or (y) unless, and solely to the extent that, the Average Price shall equal or exceed the Base Price. 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 pursuant to this Agreement; provided, that if such stockholder approval is not 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 AgreementAgreement (except as set forth in Section 3.4(b)).

Exchange Cap. The Subject to Section 3.3(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 theretoto such purchase and issuance, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement and the transactions contemplated hereby would exceed such number of shares representing the greater lower of (i) 19.99% of the combined aggregate voting power of the Common Stock and (ii) 19.99% of the total number of shares of Common Stock plus the shares of the Company’s Class B common stock, par value $0.0001 per share (the “Class B Stock”), in each case issued and outstanding Common Stock immediately prior to the execution 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 Trading Market (such maximum number of shares, the “Exchange Cap”), (x) unless the Company’s stockholders have approved the issuance of Common Stock pursuant to this Agreement in excess of the Exchange Cap in accordance with the applicable rules of the Trading Market, or (y) unless, and solely to the extent that, the Average Price shall equal or exceed the Base Price. 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 pursuant to this Agreement; provided, that if such stockholder approval is not 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 AgreementAgreement (except as set forth in Section 3.3(b)).

Exchange Cap. The Subject to Section 3.4(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 the greater 8,268,451 shares of Common Stock (representing 19.99% of the combined shares of Common Stock plus the shares of the Company’s Class B common stock, par value $0.0001 per share (the “Class B Common Stock”), in each case issued and outstanding immediately prior to the execution 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 (including, without limitation, any prior issuances of Common Stock by the Company to the Investor under the Prior Committed Equity Facility Agreement that may be aggregated with issuances of Common Stock by the Company to the Investor under this Agreement) under applicable rules of the Trading Market (such maximum number of shares, the “Exchange Cap”), (x) unless the Company’s stockholders have approved the issuance of Common Stock pursuant to this Agreement in excess of the Exchange Cap in accordance with the applicable rules of the Trading Market, or (y) unless, and solely to the extent that, the Average Price shall equal or exceed the Base Price. 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 pursuant to this Agreement; provided, that if such stockholder approval is not 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 AgreementAgreement (except as set forth in Section 3.4(b)).

Exchange Cap. The Subject to Section 3.3(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 such number of shares representing the greater lower of (i) 19.99% of the combined aggregate voting power of the Common Stock and (ii) 19.99% of the total number of shares of Common Stock plus the shares of the Company’s Class B common stock, par value $0.0001 per share (the “Class B Stock”), in each case issued and outstanding Common Stock immediately prior to the execution 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 Trading Market (such maximum number of shares, the “Exchange Cap”), (x) unless the Company’s stockholders have approved the issuance of Common Stock pursuant to this Agreement in excess of the Exchange Cap in accordance with the applicable rules of the Trading Market, or (y) unless, and solely to the extent that, the Average Price shall equal or exceed the Base Price. 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 pursuant to this Agreement; provided, that if such stockholder approval is not 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 AgreementAgreement (except as set forth in Section 3.3(b)).

Exchange Cap. The Subject to Section 3.4(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 (including the Commitment Shares) would exceed the greater 9,166,668 shares of Common Stock (such number of shares equal to approximately 19.99% of the combined aggregate number of shares of Common Stock plus the shares of the Company’s Class B common stock, par value $0.0001 per share (the “Class B Stock”), in each case issued and outstanding immediately prior to the execution 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 Trading Market (such maximum number of sharesshares of Common Stock, the “Exchange Cap”), (x) unless the Company’s stockholders have approved the issuance of Common Stock pursuant to this Agreement in excess of the Exchange Cap in accordance with the applicable rules of the Trading Market, or (y) unless, and solely to the extent that, the Average Price shall equal or exceed the Base Price. 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 pursuant to this Agreement; provided, that if such stockholder approval is not 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 AgreementAgreement (except as set forth in Section 3.4(b)).

Exchange Cap. The Subject to Section 3.4(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 (including the Commitment Shares) would exceed the greater 3,249,360 shares of Common Stock (such number of shares equal to approximately 19.99% of the combined aggregate number of shares of Common Stock plus the shares of the Company’s Class B common stock, par value $0.0001 per share (the “Class B Stock”), in each case issued and outstanding immediately prior to the execution 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 Trading Market (such maximum number of sharesshares of Common Stock, the “Exchange Cap”), (x) unless the Company’s stockholders have approved the issuance of Common Stock pursuant to this Agreement in excess of the Exchange Cap in accordance with the applicable rules of the Trading Market, or (y) unless, and solely to the extent that, the Average Price shall equal or exceed the Base Price. 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 pursuant to this Agreement; provided, that if such stockholder approval is not 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 AgreementAgreement (except as set forth in Section 3.4(b)).

Exchange Cap. The Subject to Section 3.4(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 (including the Commitment Shares) would exceed the greater 5,847,725 shares of Common Stock (such number of shares equal to approximately 19.99% of the combined aggregate number of shares of Common Stock plus the shares of the Company’s Class B common stock, par value $0.0001 per share (the “Class B Stock”), in each case issued and outstanding immediately prior to the execution 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 Trading Market (such maximum number of sharesshares of Common Stock, the “Exchange Cap”), (x) unless the Company’s stockholders have approved the issuance of Common Stock pursuant to this Agreement in excess of the Exchange Cap in accordance with the applicable rules of the Trading Market, or (y) unless, and solely to the extent that, the Average Price shall equal or exceed the Base Price. 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 pursuant to this Agreement; provided, that if such stockholder approval is not 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.Agreement (except as set forth in Section 3.4(b)). ​

Exchange Cap. The Subject to Section 2.4(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 the greater 9,171,179 (such number of shares equal to 19.99% of the combined number of shares of Common Stock plus the shares of the Company’s Class B common stock, par value $0.0001 per share (the “Class B Stock”), in each case issued and outstanding immediately prior to the execution 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 Trading Market (such maximum number of shares, the “Exchange Cap”), (x) unless the Company’s stockholders have approved the issuance of Common Stock pursuant to this Agreement in excess of the Exchange Cap in accordance with the applicable rules of the Trading Market, or (y) unless, and solely to the extent that, the Average Price shall equal or exceed the Base Price. 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 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 such stockholder approval Shareholder Approval is not 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 AgreementAgreement (except as set forth in Section 2.4(b)).

Exchange Cap. 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 such number of shares of Common Stock representing the greater lower of (i) 19.99% of the combined aggregate voting power of the Common Stock and (ii) 19.99% of the total number of shares of issued and outstanding Common Stock plus the shares of the Company’s Class B common stock, par value $0.0001 per share (the “Class B Stock”), in each case issued and outstanding immediately prior to case, calculated in accordance with the execution applicable rules of this Agreementthe 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 Trading Principal Market (such maximum number of shares, the “Exchange Cap”), (x) unless the Company’s stockholders have approved the issuance of Common Stock pursuant to this Agreement in excess of the Exchange Cap in accordance with the applicable rules of the Trading Principal Market, or (y) unless, and solely to the extent that, the Average Price shall equal or exceed the Base Price. 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 pursuant to this Agreement; provided, that if such stockholder approval is not 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.

Exchange Cap. The Subject to Section 3.4(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 the greater 5,166,761 shares of Common Stock (such number of shares equal to 19.99% of the combined aggregate number of shares of Common Stock plus the number of shares of the Company’s Class B common stock, par value $0.0001 0.00001 per share (the “Class B Common Stock”), in each case issued and outstanding immediately prior to the execution 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 Trading Market (such maximum number of sharesshares of Common Stock, the “Exchange Cap”), (x) unless the Company’s stockholders have approved the issuance of Common Stock pursuant to this Agreement in excess of the Exchange Cap in accordance with the applicable rules of the Trading Market, or (y) unless, and solely to the extent that, the Average Price shall equal or exceed the Base Price. 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 pursuant to this Agreement; provided, that if such stockholder approval is not 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 AgreementAgreement (except as set forth in Section 3.4(b)).