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 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 (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 Global Market or any other Principal Market on which the Common Stock may be listed or quoted) (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 such issuance in accordance with the applicable rules and regulations of the Nasdaq Global Market, any other Principal Market on which the Common Stock may be listed or quoted, and the Company’s Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”), and 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).

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 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 (which number of shares shall be reduced, on a share-for-share basis, by the number of 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 Nasdaq Global Company’s obligations under the applicable rules of The NASDAQ Stock Market or any other Principal (2) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Market on which the Common Stock may be listed or quoted) (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 such issuance the transactions contemplated by this Agreement in accordance with the applicable rules and regulations of the Nasdaq Global The NASDAQ Stock Market, any other Principal Market on which the Common Stock may be listed or quoted, and the Company’s Amended and Restated Certificate of Incorporation, as amended (the “Certificate Incorporation and Bylaws of Incorporation”), and 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 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).

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 hereby by the Transaction Documents would be equal or greater to 20,410,708 shares of Common Stock, representing 19.99% of the exceed 9,482,468 shares of Common Stock outstanding on (representing the date lower of this Agreement (the 19.99% voting power threshold and the 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 Global Market or any other Principal Market on which the Common Stock may be listed or quoted) (such maximum number of shares, the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of Company’s stockholders have approved the issuance of Common Stock as contemplated by pursuant to this Agreement and the stockholders in excess of the Company have in fact approved such issuance Exchange Cap in accordance with the applicable rules and regulations of the Nasdaq Global Market, any other Principal Market on which or such approval is not required in accordance with the Common Stock may be listed applicable rules of the Principal Market or quoted, and the Company’s Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”), and the Company’s Amended and Restated Bylaws, as amended (the “Bylaws”)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)).

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 be exceed [●]2 (such number of shares equal or greater to 20,410,708 shares of Common Stock, representing 19.99% of the number of shares of Common Stock issued and outstanding immediately prior to the Closing on the date of Closing Date under this Agreement (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 The Nasdaq Global Stock Market or any other Principal Market on which the Common Stock may be listed or quoted) LLC (such maximum number of shares, the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of Company’s stockholders have approved the issuance of Common Stock as contemplated by pursuant to this Agreement and the stockholders in excess of the Company have in fact approved such issuance Exchange Cap in accordance with the applicable rules and regulations of The Nasdaq Stock Market LLC or the Company shall have received a financial viability exception in accordance with the applicable rules of The Nasdaq Global Market, any other Principal Stock Market on which the Common Stock may be listed or quoted, and the Company’s Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”), and the Company’s Amended and Restated Bylaws, as amended (the “Bylaws”)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)).

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 be exceed 47,099,574 (such number of shares equal or greater to 20,410,708 shares of Common Stock, representing 19.99% of the aggregate number of shares of Common Stock and shares of the Company’s Class C common stock, par value $0.0001 per share, combined, issued and outstanding on immediately prior to the date execution of this Agreement (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 and (ii) appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction that occurs after the Nasdaq Global Market or any other Principal Market on which the Common Stock may be listed or quoted) date of this Agreement (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 Agreement, and the stockholders of the Company have in fact approved such the issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules and regulations of the The Nasdaq Global Stock Market, any other Principal Market on which the Common Stock may be listed or quoted, and the Company’s Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”), and 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).

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 be exceed 17,743,727 (such number of shares equal or greater to 20,410,708 shares of Common Stock, representing 19.99% of the number of shares of Common Stock issued and outstanding on immediately prior to the date execution of this Agreement (Agreement), which number of shares shall be reducedreduced in the 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 Global Trading Market or any other Principal Market on which the Common Stock may be listed or quoted) (such maximum number of shares, the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of Company’s stockholders have approved the issuance of Common Stock as contemplated by pursuant to this Agreement and the stockholders in excess of the Company have in fact approved such issuance Exchange Cap in accordance with the applicable rules and regulations of the Nasdaq Global Trading Market, any other Principal Market on which the Common Stock may be listed or quoted, and the Company’s Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”), and 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 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) below3.3(b)). For the further avoidance of doubt, in no event shall settlement of any VWAP Purchase be dependent on a stockholder vote.

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 be equal or greater to 20,410,708 24,766,904 shares of Common Stock, 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 Global Market or any other Principal Market on which the Common Stock may be listed or quoted) (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 such issuance in accordance with the applicable rules and regulations of the Nasdaq Global Market, any other Principal Market on which the Common Stock may be listed or quoted, and the Company’s Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”), and 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).

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 be exceed 7,361,833 (such number of shares equal or greater to 20,410,708 shares of Common Stock, representing 19.99% of the number of shares of Common Stock issued and outstanding on immediately prior to the date execution of this Agreement (Agreement), which number of shares shall be reducedreduced in the 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 Global Trading Market or any other Principal Market on which the Common Stock may be listed or quoted) (such maximum number of shares, the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of Company’s stockholders have approved the issuance of Common Stock as contemplated by pursuant to this Agreement and the stockholders in excess of the Company have in fact approved such issuance Exchange Cap in accordance with the applicable rules and regulations of the Nasdaq Global Trading Market, any other Principal Market on which the Common Stock may be listed or quoted, and the Company’s Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”), and 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 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.

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 be equal to or greater to 20,410,708 than 4,609,169 shares of Common Stock, 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 Global Market or any other Principal Market on which the Common Stock may be listed or quoted) (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 such issuance in accordance with the applicable rules and regulations of the Nasdaq Global Market, any other Principal Market on which the Common Stock may be listed or quoted, and the Company’s Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”), and 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).

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 be equal to or greater to 20,410,708 than 1,088,795 shares of Common Stock, 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 The Nasdaq Global Capital Market or any other Principal Market on which the Common Stock may be listed or quoted) (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 such issuance in accordance with the applicable rules and regulations of the The Nasdaq Global Capital Market, any other Principal Market on which the Common Stock may be listed or quoted, and the Company’s Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”), and 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).

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 and the transactions contemplated hereby would be equal to or greater to 20,410,708 than 3,017,625 shares of Common Stock, 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 The Nasdaq Global Capital Market or any other Principal Market on which the Common Stock may be listed or quoted) (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 such issuance in accordance with the applicable rules and regulations of the The Nasdaq Global Capital Market, any other Principal Market on which the Common Stock may be listed or quoted, and the Company’s Amended and Restated Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and 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)(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).