Common use of Issuance Cap Clause in Contracts

Issuance Cap. Notwithstanding anything to the contrary contained herein, the Purchaser and the Company agree that the total number of shares of Common Stock issued in connection with the Transaction may not exceed the requirements of Nasdaq Listing Rule 5635(d) (“Nasdaq 19.99% Cap”), except that such limitation will not apply following Approval (defined below). If the aggregate number of shares of Common Stock issued in connection with the Transaction reaches the Nasdaq 19.99% Cap, so as not to violate the 20% limit established in Listing Rule 5635(d), the Company shall as soon as reasonably practicable take all action necessary to obtain stockholder approval of the issuance of additional shares of Common Stock issuable pursuant to the terms of this Agreement in accordance with the requirements of Nasdaq Listing Rule 5635(d) (the “Approval”). Without limiting the generality of the foregoing sentence, as soon as reasonably practicable after the date of the application of the Nasdaq 19.99% Cap, but in no event later than 75 days after such occurrence, the Company shall hold a meeting of its stockholders to seek the Approval. In connection with such meeting, the Company shall provide each stockholder with a proxy statement and shall use its reasonable best efforts to solicit the Approval and to cause its board of directors to recommend to the stockholders that they provide the Approval. Until Approval is obtained, issuances of Common Stock pursuant to Section 4.1 hereof shall be made to the Purchaser as nearly as possible on a pro rata basis based on the total amount of shares of Common Stock issued or issuable to such party.

Issuance Cap. Notwithstanding anything In addition to the contrary contained hereinlimitations set forth in Section 3.2(n) hereof, and notwithstanding any other provision of this Agremeent, the Company shall not issue, the Purchaser shall not be entitled to receive, and the Company agree that the total number of Purchaser shall not, and shall cause its Affiliates to not, directly or indirectly acquire, offer to acquire, solicit an offer to sell, own, or purchase, any Shares or Warrants which, when aggregated with all other shares of Common Stock then beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Purchaser and its Affiliates, would result in the beneficial ownership (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Purchaser of more than 19.9% of the then issued in connection with the Transaction may not exceed the requirements of Nasdaq Listing Rule 5635(d) (“Nasdaq 19.99% Cap”), except that such limitation will not apply following Approval (defined below). If the aggregate number of and outstanding shares of Common Stock issued of the Company (the “Maximum Percentage”), unless shareholder approval is obtained in connection accordance with the Transaction reaches listing rules of the Nasdaq 19.99% CapNYSE or is otherwise permitted by the NYSE. In addition, so as not to violate the 20% limit established in Listing Rule 5635(d)unless such shareholder approval is obtained, the Company shall as soon as reasonably practicable take all action necessary not issue, the Purchaser shall not be entitled to obtain stockholder approval receive, and the Purchaser shall not, and shall cause its Affiliates to not, directly or indirectly acquire, offer to acquire, solicit an offer to sell, own, or purchase, any Shares or Warrants, in excess of the issuance Maximum Percentage measured as of additional shares the day immediately preceding the Closing Date. The term “Affiliate” as used in Sections 3.2(m) and (n) of this Agreement means, with respect to any person, any other person that, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such person, and any officers, employees or partners of the Purchaser. For the avoidance of doubt, for purposes of Sections 3.2(m) and (n) of this Agreement (i) Brookfield Asset Management Inc. together with its managed funds and accounts and affiliated holding companies and its Affiliates (collectively, “Brookfield”) shall be deemed “Affiliates” of the Purchaser, and (ii) Brookfield’s beneficial ownership of Common Stock issuable pursuant to the terms of this Agreement in accordance shall be aggregated with the requirements Purchaser’s or its Affiliates’ beneficial ownership of Nasdaq Listing Rule 5635(d) (Common Stock. The foregoing shall not constitute an admission by the “Approval”). Without limiting the generality Purchaser to a third party that Brookfield is an Affiliate of the foregoing sentence, as soon as reasonably practicable after the date of the application of the Nasdaq 19.99% Cap, but in no event later than 75 days after such occurrence, the Company shall hold a meeting of its stockholders to seek the Approval. In connection with such meeting, the Company shall provide each stockholder with a proxy statement and shall use its reasonable best efforts to solicit the Approval and to cause its board of directors to recommend to the stockholders Purchaser or that they provide the Approval. Until Approval is obtained, issuances Brookfield’s beneficial ownership of Common Stock pursuant to Section 4.1 hereof shall should be made to aggregated with that of the Purchaser as nearly as possible on a pro rata basis based or its Affiliates for any purpose other than Sections 3.2(m) and (n) of this Agreement. The Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect the Purchaser’s right to rely on the total amount Company’s representations and warranties contained in this Agreement or any representations and warranties contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement or the consummation of shares of Common Stock issued or issuable to such partythe transaction contemplated hereby.

Issuance Cap. Notwithstanding anything to the contrary contained herein, the Purchaser and the Company agree that the total number of shares of Common Stock issued in connection with the Transaction Offering, including, for the avoidance of doubt, any shares of Common Stock issued pursuant to anti-dilution protections triggered by the Offering and the shares of Common Stock underlying the subordinated convertible note, dated May 16, 2024, by and between the Company and Remus Capital Series B II, L.P. (the “Note”), may not exceed the requirements of Nasdaq Listing Rule 5635(d) (“Nasdaq 19.99% Cap”), except that such limitation will not apply following Approval (defined below). If the aggregate number of shares of Common Stock issued in connection with the Transaction Offering reaches the Nasdaq 19.99% Cap, so as not to violate the 20% limit established in Listing Rule 5635(d), the Company shall as soon as reasonably practicable take all action necessary to obtain stockholder approval of the issuance of additional shares of Common Stock issuable pursuant to the terms of this Agreement in accordance with the requirements of Nasdaq Listing Rule 5635(d) (the “Approval”). Without limiting the generality of the foregoing sentence, as soon as reasonably practicable after the date of the application of the Nasdaq 19.99% Cap, but in no event later than 75 90 days after such occurrence, the Company shall hold a meeting of its stockholders to seek the Approval. In connection with such meeting, the Company shall provide each stockholder with a proxy statement and shall use its reasonable best efforts to solicit the Approval and to cause its board of directors to recommend to the stockholders that they provide the Approval. Until Approval is obtained, issuances of Common Stock pursuant to Section 4.1 5.1 hereof shall be made allocated (i) first to shares of Common Stock purchased in the Purchaser as nearly as possible on a pro rata basis based on Offering, (ii) then to shares of Common Stock issuable under the total amount of Note, and (iii) lastly to any shares of Common Stock issued or issuable pursuant to such partyanti-dilution protections triggered by the Offering.

Issuance Cap. Notwithstanding anything to the contrary contained herein, the Purchaser and the Company agree that the total number of shares of Common Stock issued hereunder, together with the total number of shares of Common Stock issuable pursuant to the terms of the Warrants to Purchase Common Stock issued in connection with the Transaction Third Amendment, dated October 10, 2023, by and between the Company and the Metropolitan Entities (the “Third Amendment Warrants”), may not exceed the requirements of Nasdaq Listing Rule 5635(d) (“Nasdaq 19.99% Cap”), except that such limitation will not apply following Approval (defined below). If the aggregate number of shares of Common Stock issued in connection with to the Transaction Purchaser and holders of the Third Amendment Warrants reaches the Nasdaq 19.99% Cap, so as not to violate the 20% limit established in Listing Rule 5635(d), the Company shall as soon as reasonably practicable take all action necessary to obtain stockholder approval of the issuance of additional shares of Common Stock issuable pursuant to the terms of this Agreement and upon the exercise of the Third Amendment Warrants, if necessary, in accordance with the requirements of Nasdaq Listing Rule 5635(d) (the “Approval”). Without limiting the generality of the foregoing sentence, as soon as reasonably practicable after the date of the application of the Nasdaq 19.99% Cap, but in no event later than 75 seventy-five (75) days after such occurrence, the Company shall hold a meeting of its stockholders to seek the Approval. In connection with such meeting, the Company shall provide each stockholder with a proxy statement and shall use its reasonable best efforts to solicit the Approval and to cause its board of directors to recommend to the stockholders that they provide the Approval. Until Approval is obtained, (i) issuances of Common Stock pursuant to Section 4.1 4.11 hereof and (ii) increases to the Common Stock issuable pursuant to Section 2(b) of the Third Amendment Warrants shall be made to between (x) the Purchaser and (y) the holders of the Third Amendment Warrants as nearly as possible on a pro rata basis based on the total amount of shares of Common Stock issued or issuable to such partyparty (i.e. at any given time, the amount of Common Stock issuable upon the exercise of the Third Amendment Warrants (without regard to the Maximum Percentage (as defined in the Third Amendment Warrants) limitation therein, but subject to the Nasdaq 19.99% Cap) which may be exercised is equal to two (2) times the sum of (i) the shares of Common Stock originally issued pursuant to this Agreement and (ii) the shares issued pursuant to Section 4.11 hereof).

Issuance Cap. Notwithstanding anything to the contrary contained hereinany other provision of this Agreement, the Company shall not issue, such Purchaser shall not be entitled to receive, and the Company agree that the total number of such Purchaser shall not, and shall cause its Affiliates (other than Brookfield) to not, directly or indirectly acquire, offer to acquire, solicit an offer to sell, own, or purchase, any shares of Common Stock of the Company or warrants (including, but not limited to, the Warrants and the warrants issued in connection with the MAV Transaction may not exceed the requirements of Nasdaq Listing Rule 5635(d) (“Nasdaq 19.99% Cap”), except that such limitation will not apply following Approval (defined below). If the aggregate number of shares of Common Stock issued in connection with the Transaction reaches the Nasdaq 19.99% Cap, so as not to violate the 20% limit established in Listing Rule 5635(d), the Company shall as soon as reasonably practicable take all action necessary to obtain stockholder approval of the issuance of additional and any shares of Common Stock issuable upon exercise thereof) which, when aggregated with all other shares of Common Stock of the Company then beneficially owned (as calculated pursuant to Section 13(d) of the terms Exchange Act and Rule 13d-3 promulgated thereunder) by such Purchaser and its Affiliates (other than Brookfield), would result in the beneficial ownership (as calculated pursuant to Section 13(d) of this Agreement the Exchange Act and Rule 13d-3 promulgated thereunder) by such Purchaser of more than 19.9% of the then issued and outstanding shares of Common Stock of the Company (the “Maximum Percentage”), unless shareholder approval is obtained in accordance with the requirements of Nasdaq Listing Rule 5635(d) (the “Approval”). Without limiting the generality listing rules of the foregoing sentenceNYSE or is otherwise permitted by the NYSE. In addition, as soon as reasonably practicable after unless such shareholder approval is obtained or otherwise permitted by the date of the application of the Nasdaq 19.99% Cap, but in no event later than 75 days after such occurrenceNYSE, the Company shall hold a meeting of its stockholders not issue, such Purchaser shall not be entitled to seek the Approval. In connection with receive, and such meetingPurchaser shall not, the Company shall provide each stockholder with a proxy statement and shall use its reasonable best efforts to solicit the Approval and to cause its board of directors Affiliates (other than Brookfield) to recommend not, directly or indirectly acquire, offer to the stockholders that they provide the Approval. Until Approval is obtainedacquire, issuances of Common Stock pursuant solicit an offer to Section 4.1 hereof shall be made to the Purchaser as nearly as possible on a pro rata basis based on the total amount of sell, own, or purchase, any shares of Common Stock issued of the Company or issuable warrants, in excess of the Maximum Percentage measured as of the day immediately preceding the Signing Date. Nothing in this Section 5A.12 or Section 5A.13 shall constitute an admission by any Purchaser to a third party that Brookfield is an Affiliate of such partyPurchaser or that Brookfield’s beneficial ownership of Common Stock of the Company should be aggregated with that of such Purchaser or its Affiliates for any purpose.