Common use of Exchange Cap Clause in Contracts

Exchange Cap. 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 [●]2 (such number of shares equal to 19.99% of the number of shares of Common Stock issued and outstanding immediately prior to the Closing on the Closing Date under 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 LLC (such maximum number of shares, the “Exchange Cap”), 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 Nasdaq Stock Market LLC or the Company shall have received a financial viability exception in accordance with the applicable rules of The 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 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, 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 3.3(b)).

Exchange Cap. Subject to Section 3.3(b)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 [●]2 (such number be equal or greater to 24,766,904 shares of shares equal to Common Stock, representing 19.99% of the number of shares of Common Stock issued and outstanding immediately prior to the Closing on the Closing Date under date of 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 Market or any other Principal Market on which the Common Stock Market LLC may be listed or quoted) (such maximum number of shares, the “Exchange Cap”), unless and until the Company’s stockholders have approved Company elects to solicit stockholder approval of the issuance of Common Stock pursuant to as contemplated by this Agreement in excess and the stockholders of the Exchange Cap Company have in fact approved such issuance in accordance with the applicable rules and regulations of The the Nasdaq Global Market, any other Principal Market on which the Common Stock Market LLC may be listed or quoted, and the Company shall have received a financial viability exception in accordance with Company’s Amended and Restated Certificate of Incorporation, as amended (the applicable rules “Certificate of The Nasdaq Stock Market LLCIncorporation”), 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 or seek a financial viability exception in accordance with the applicable rules of The Nasdaq Stock Market LLC pursuant to as contemplated by this Agreement; provided, that if such stockholder approval or financial viability exception is not obtainedobtained 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 3.3(b)2(f)(ii) below).

Exchange Cap. Subject to Section 3.3(b)2(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 exceed [●]2 (such number of shares be equal to or greater than 3,017,625 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 Closing Date under date of 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 Nasdaq Capital Market or any other Principal Market on which the Common Stock Market LLC may be listed or quoted) (such maximum number of shares, the “Exchange Cap”), unless and until the Company’s stockholders have approved Company elects to solicit stockholder approval of the issuance of Common Stock pursuant to as contemplated by this Agreement in excess and the stockholders of the Exchange Cap Company have in fact approved such issuance in accordance with the applicable rules and regulations of The Nasdaq Capital Market, any other Principal Market on which the Common Stock Market LLC may be listed or quoted, and the Company shall have received a financial viability exception Company’s Certificate of Incorporation, as amended and as in accordance with effect on the applicable rules date hereof (the “Certificate of The Nasdaq Stock Market LLCIncorporation”), 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 or seek a financial viability exception in accordance with the applicable rules of The Nasdaq Stock Market LLC pursuant to as contemplated by this Agreement; provided, that if such stockholder approval or financial viability exception is not obtainedobtained in accordance with this Section 2(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 3.3(b)2(g)(ii) below).

Exchange Cap. Subject to Section 3.3(b2.4(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 [●]2 9,171,179 (such number of shares equal to 19.99% of the number of shares of Common Stock issued and outstanding immediately prior to the Closing on the Closing Date under 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 Nasdaq Stock the Trading Market LLC (such maximum number of shares, the “Exchange Cap”), 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 Nasdaq Stock Market LLC or the Company shall have received a financial viability exception in accordance with the applicable rules of The Nasdaq Stock Market LLCTrading 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 or seek a financial viability exception in accordance with excess of the applicable rules Exchange Cap as may be necessary for the Company to receive aggregate gross proceeds equal to the Total Commitment from the sale of The Nasdaq Stock Market LLC 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 or financial viability exception 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 Agreement (except as set forth in Section 3.3(b2.4(b)).

Exchange Cap. Subject to Section 3.3(b), 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 [●]2 (such number of shares equal to of Common Stock representing the lower of (i) 19.99% of the voting power of the Common Stock and (ii) 19.99% of the number of shares of Common Stock issued and outstanding Common Stock, in each case, calculated immediately prior to following the Closing on closing of the Closing Date under this Agreement)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 the Principal Market (including, but not limited to, issuances of convertible notes and warrants to purchase shares of Common Stock Market LLC that may be so aggregated) (such maximum number of shares, the “Exchange Cap”), 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 Nasdaq Stock Market LLC or the Company shall have received a financial viability exception in accordance with the applicable rules of The Nasdaq Stock Market LLCPrincipal 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 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, 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 3.3(b))Agreement.

Exchange Cap. Subject to Section 3.3(b)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 [●]2 (such number be equal or greater to 20,410,708 shares of shares equal to Common Stock, representing 19.99% of the number of shares of Common Stock issued and outstanding immediately prior to the Closing on the Closing Date under date of 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 Market or any other Principal Market on which the Common Stock Market LLC may be listed or quoted) (such maximum number of shares, the “Exchange Cap”), unless and until the Company’s stockholders have approved Company elects to solicit stockholder approval of the issuance of Common Stock pursuant to as contemplated by this Agreement in excess and the stockholders of the Exchange Cap Company have in fact approved such issuance in accordance with the applicable rules and regulations of The the Nasdaq Global Market, any other Principal Market on which the Common Stock Market LLC may be listed or quoted, and the Company shall have received a financial viability exception in accordance with Company’s Amended and Restated Certificate of Incorporation, as amended (the applicable rules “Certificate of The Nasdaq Stock Market LLCIncorporation”), 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 or seek a financial viability exception in accordance with the applicable rules of The Nasdaq Stock Market LLC pursuant to as contemplated by this Agreement; provided, that if such stockholder approval or financial viability exception is not obtainedobtained 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 3.3(b)2(f)(ii) below).

Exchange Cap. Subject to Section 3.3(b)2.4(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 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 issued that the Company may issue pursuant to this Agreement and outstanding immediately prior to the Closing on the Closing Date under this Agreement), which number of shares shall be reduced, on a share-for-share basis, by the number of 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 Stock Market LLC or (such maximum number 2) obtaining stockholder approval under the applicable rules of shares, The NASDAQ Stock Market (the “Exchange Cap”), unless and until the Company’s Company elects to solicit stockholder approval of the transactions contemplated by this Agreement and the stockholders of the Company have in fact approved the issuance of Common Stock pursuant to transactions contemplated by this Agreement in excess of the Exchange Cap in accordance with the applicable rules and regulations of The Nasdaq NASDAQ Stock Market LLC or Market, and the Company shall have received a financial viability exception in accordance with Certificate of Incorporation and Bylaws of the applicable rules of The Nasdaq Stock Market LLCCompany. 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 or seek a financial viability exception in accordance with the applicable rules of The Nasdaq Stock Market LLC pursuant to transactions contemplated by this Agreement; provided, that if such stockholder approval or financial viability exception is not obtainedobtained in accordance with this Section 2.4(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 3.3(b)2.4(b) below).

Exchange Cap. Subject to Section 3.3(b2.3(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 7,361,833 (such number of shares equal to 19.99% of the number of shares of Common Stock issued and outstanding immediately prior to the Closing on the Closing Date under execution of this 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 Stock the Trading Market LLC (such maximum number of shares, the “Exchange Cap”), 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 Nasdaq Stock Market LLC or the Company shall have received a financial viability exception in accordance with the applicable rules of The Nasdaq Stock Market LLCTrading 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 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, 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 3.3(b2.3(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 3.3(b)Unless the Parent first obtains shareholder approval in accordance with sections 604(a) and 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 number issuance of shares 63,000,000 or more Common Shares (representing a maximum 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 19.9925% of the number of shares of Common Stock issued and outstanding number of Common Shares calculated as of immediately prior to the Closing on the Closing Date under execution of this Agreement); provided, which number of shares shall be reducedhowever, 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 LLC (such maximum number of sharesCommon Shares is to be adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction after the date hereof) (the percentage set forth in clause (i) or (ii), as applicable, the “"Exchange Cap”"), 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 Nasdaq Stock Market LLC or the Company shall have received a financial viability exception in accordance with the applicable rules of The Nasdaq Stock Market LLC. 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 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, 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 3.3(bthis 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.

Exchange Cap. Subject to Section 3.3(b)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 [●]2 47,099,574 (such number of shares equal to 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 immediately prior to the Closing on the Closing Date under 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 LLC 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 (such maximum number of shares, the “Exchange Cap”), unless and until the Company’s 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 pursuant to as contemplated by this Agreement in excess of the Exchange Cap in accordance with the applicable rules 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 Stock Market LLCMarket. 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 or seek a financial viability exception in accordance with the applicable rules of The Nasdaq Stock Market LLC pursuant to as contemplated by this Agreement; provided, that if such stockholder approval or financial viability exception is not obtainedobtained 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 3.3(b)2(f)(ii) below).

Exchange Cap. Subject to Section 3.3(b)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 [●]2 (such number of shares be equal to or greater than a number 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 Closing Date under date of 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 Nasdaq Capital Market or any other Principal Market on which the Common Stock Market LLC may be listed or quoted) (such maximum number of shares, the “Exchange Cap”), unless the Company’s stockholders have approved the issuance of Common Stock pursuant stockholder approval is obtained to this Agreement issue in excess of the 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 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 execution of this Agreement or (ii) the arithmetic average of the five (5) Nasdaq Official Closing Prices for the Common Stock immediately preceding the execution of this Agreement, as calculated in accordance with the applicable rules of The Nasdaq Stock the Principal Market LLC or (in such circumstance, for purposes of the Principal Market, the transaction contemplated hereby would not be “below market” and the Exchange Cap would not apply). Notwithstanding the foregoing, the Company shall have received a financial viability exception in accordance with not be required or permitted to issue, and the applicable rules of The Nasdaq Stock Market LLC. 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 or seek a financial viability exception in accordance with the applicable rules of The Nasdaq Stock Market LLC pursuant to under this Agreement; provided, that Agreement if such stockholder approval issuance would violate the rules or financial viability exception is not obtained, regulations of 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 3.3(b))Principal Market.