Maximum Issuance Clause Samples

Maximum Issuance. Notwithstanding the foregoing, without the prior approval of the Company’s stockholders as required pursuant to the rules and regulations of the The Nasdaq Capital Market, the aggregate number of shares of Common Stock actually issued by the Company under the Transaction Agreements shall not exceed 19.99% of the Common Stock outstanding as of the Original Issue Date, for purposes of NASDAQ Listing Rule 5635(d), at a price, determined in accordance with the rules and regulations of The Nasdaq Capital Market, that is less than the Minimum Price (as defined below). The term “Minimum Price” means a price that is the lower of (i) the Closing Sale Price of the Common Stock immediately preceding the signing of the Loan Agreement; or (ii) the average Closing Sale Price of the Common Stock for the five (5) Trading Days immediately preceding the signing of the Loan Agreement.

Maximum Issuance. The maximum number of shares which the Borrower shall be permitted to issue to the Investors in accordance with this Section 2.14 on any Share Payment Closing Date (the “Maximum Issuance”) shall, except as hereinafter provided, be equal to a percentage of the total number of shares of Common Stock outstanding as of the close of business on the Trading Day immediately preceding the date of the Share Payment Notice calculated as a fraction, (x) the numerator of which is the quotient of the Market Capitalization (as defined below) at the close of regular trading on the Trading Day immediately preceding the date of the Share Payment Notice divided by $350,000,000 and (y) the denominator of which is 100; provided, however, that the Maximum Issuance shall be no greater than 1,920,000 shares and no less than 480,000 shares, if the Market Capitalization is at least $150,000,000, (ii) the Maximum Issuance shall be 400,000 shares if the Market Capitalization is more than $100,000,000 but less than $150,000,000 and (iii) the Maximum Issuance shall be 300,000 shares if the Market Capitalization is $100,000,000 or less. As an example, if the Market Capitalization were $700,000,000 and the total number of shares of Common Stock outstanding were 47,000,000 then the applicable percentage would be 2% (($700,000,000/$350,000,000) / 100) and the Maximum Issuance would equal 940,000 shares (2% x 47,000,000). For purposes of this Section 2.14, “Market Capitalization” shall mean the product of (x) the number of issued and outstanding shares of Common Stock as of the date of the calculation (exclusive of any shares issuable upon exercise of options or warrants or conversion of any convertible securities) multiplied by (y) the applicable price per share of Common Stock.

Maximum Issuance. BLP shall not be entitled to receive on an Issuance Date by delivery of Settlement Shares in connection with that number of Settlement Shares which would be in excess of the sum of (i) the number of shares of Common Stock beneficially owned by such BLP and its Affiliates on an Issuance Date, and (ii) the number of Settlement Shares issuable upon Issuance Date with respect to which the determination of this provision is being made on a calculation date, which would result in beneficial ownership by BLP and its Affiliates of more than 4.99% of the outstanding shares of Common Stock of the Company on such Issuance Date. For the purposes of the immediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and Rule 13d-3 thereunder. Subject to the foregoing, BLP shall not be limited to aggregate issuances of only 4.99% and aggregate issuancess by BLP may exceed 4.99%. BLP shall have the authority to determine whether the restriction contained in this Section 5(e) will limit any issuance and the extent such limitation applies and to which instrument or part thereof such limitation applies. BLP may increase the permitted beneficial ownership amount up to 9.99% upon and effective after 61 days prior written notice to the Company. BLP may allocate which of the equity of the Company deemed beneficially owned by BLP shall be included in the 4.99% amount described above and which shall be allocated to the excess above 4.99%.

Maximum Issuance. Notwithstanding anything anywhere in the Loan Documents to the contrary, the aggregate number of shares issued pursuant to the Conversion Option shall not exceed the aggregate number of shares of Common Stock which Borrower may issue and Lender may receive pursuant to the terms of this Supplement without breaching Borrower’s obligations under the rules or regulations of the Principal Trading Market, except that such limitation shall not apply in the event that Borrower obtains the approval of its stockholders as required by the applicable rules of the Principal Trading Market, including, but not limited to, NYSE American Company Guide Section 713, for issuances of shares of Common Stock in excess of such amount or such approval is not required pursuant to the applicable rules of the Principal Trading Market.

Maximum Issuance. Notwithstanding anything to the contrary contained herein, the number of Acquisition Shares that may be acquired by the Sellers pursuant to the Earnout Schedule (or otherwise in respect hereof) shall be limited to the extent necessary to ensure that, following such earnout (or other issuance), the total number of shares of Common Stock then beneficially owned by such Seller and its affiliates and any other persons whose beneficial ownership of Common Stock would be aggregated with the Seller’s for purposes of Section 13(d) of the 1934 Act, does not exceed 9.999% of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock issuable upon such earnout) (a “Maximum Issuance”). For such purposes, beneficial ownership shall be determined in accordance with Section 13(d) of the 1934 Act and the rules and regulations promulgated thereunder. This provision may not be waived.

Maximum Issuance. Notwithstanding anything anywhere in the Loan Documents to the contrary, the aggregate number of shares issued pursuant to the Equity Grant and the Conversion Right shall not exceed the aggregate number of shares of Common Stock which Borrower may issue pursuant to the terms of this Loan and Security Agreement without breaching Borrower’s obligations under the rules or regulations of the Principal Trading Market (the number of shares which may be issued without violating such rules and regulations, the “Exchange Cap”), except that such limitation shall not apply in the event that Borrower obtains the approval of its stockholders as required by the applicable rules of the Principal Trading Market, including, but not limited to, Nasdaq Listing Rules 5635(b) and 5635(d), for issuances of shares of Common Stock in excess of such amount or such approval is not required pursuant to the applicable rules of the Principal Trading Market.