Common use of NASDAQ Limitation Clause in Contracts

NASDAQ Limitation. If on any date (the "Determination Date") (a) the Common Stock is listed for trading on Nasdaq or the Nasdaq Small Cap Market, (b) the Conversion Price then in effect is such that the sum of (x) the aggregate number of shares of Common Stock that would then be issuable upon conversion in full of the then outstanding principal amount of the Securities and as payment of interest thereon, plus (y) the aggregate number of shares of Common Stock that have previously been issued upon conversion of the Securities, plus (z) any shares of Common Stock issued or issuable upon conversion of any other securities of the Issuer (excluding the warrants issued by the Issuer pursuant to that certain Securities Purchase Agreement, dated as of December 10, 1998, and the warrants issued pursuant to the Purchase Agreement) which would be aggregated with the Common Stock issuable upon conversion of the Securities as required by the applicable rules and regulations of Nasdaq (or any successor entity), would equal or exceed 20% of the number of shares of the Common Stock outstanding immediately prior to the Closing Date (as defined in the Purchase Agreement) (such number of shares as would not equal or exceed such 20% limit, the "Issuable Maximum"), and (c) the Issuer shall not have previously obtained the vote of the stockholders of the Issuer (the "Stockholder Approval"), if any, as may be required by the applicable rules and regulations of Nasdaq (or any successor entity) to approve the issuance of shares of Common Stock in excess of the Issuable Maximum in a private placement whereby shares of Common Stock are deemed to have been issued at a price that is less than the greater of book value or fair market value of the Common Stock, then with respect to the aggregate principal amount of the Securities then held by the Holders for which a conversion in accordance with the Conversion Price would result in an issuance of shares of Common Stock in excess of the Issuable Maximum (the "Excess Principal") the Issuer may elect to prepay cash to the holders in an amount equal to the Mandatory Prepayment Amount. Any such election by the Issuer must be made in writing to the Holders within two Trading Days after the Determination Date and the payment of such Mandatory Prepayment Amount applicable to such prepayment must be made in full to the Holders with ten (10) Business Days after the date such notice is delivered. If the Issuer does not deliver timely a notice of its election to prepay under this Section or shall, if it shall have delivered such a notice, fail to pay the prepayment amount hereunder within ten (10) Business Days thereafter, then the Holders of a majority of the aggregate principal amount of the Securities then outstanding shall have the option by written notice to the Issuer, to declare any such notice given by the Issuer, if given, to be null and void and require the Issuer to pay cash to each Holder in an amount equal to the Mandatory Prepayment Amount for such Holder's portion of the Excess Principal. The payment of the Mandatory Prepayment Amount to each Holder pursuant to this Section shall be determined on a pro rata basis upon the principal amount of the Securities held by such Holder on the determination Date. If the Issuer fails to pay the Mandatory Prepayment Amount in full pursuant to this Section within five Business Days after the date payable, the Issuer will pay interest thereon at a rate of seven percent (7%) per annum to the converting Holder, accruing interest daily from the date of conversion until such amount, plus all such interest thereon, if any, is paid in full. In no event shall the Issuer be required to issue shares of Common Stock upon conversion of the Securities if such issuance would violate the rules of the Nasdaq Stock Market.

NASDAQ Limitation. The Company covenants that if any shares of Common Stock required to be reserved for purposes of conversion of Debentures hereunder require registration with or approval of any governmental authority under any Federal or state law, or any national securities exchange, before such shares may be issued upon conversion, the Company will use its best efforts to cause such shares to be duly registered or approved, as the case may be. If on any date (the "Determination Date") (a) the Common Stock is listed for trading on Nasdaq or the Nasdaq Small Cap Market or the Nasdaq National Market, (b) the Conversion Exercise Price then in effect is such that the sum of (x) the aggregate number of shares of Common Stock that would then be issuable upon conversion in full of the then outstanding principal amount of the Securities Debentures and exercise in full of the Warrants as if all such Debentures were converted and such warrants were exercised on such Determination Date (without regard to any limitations on conversions) and as payment of interest thereon, plus and (y) the aggregate number of shares of Common Stock that have previously been issued to the Purchasers upon any prior conversion of the Securities, plus (z) any shares of Common Stock issued Debentures or issuable upon conversion of any other securities exercise of the Issuer (excluding the warrants issued by the Issuer pursuant to that certain Securities Purchase Agreement, dated as of December 10, 1998, and the warrants issued pursuant to the Purchase Agreement) which would be aggregated with the Common Stock issuable upon conversion of the Securities as required by the applicable rules and regulations of Nasdaq (or any successor entity)Warrants, would equal or exceed 20% of the number of shares of the Common Stock outstanding immediately prior to on the Closing Date (as defined in the Purchase Agreement) (such number of shares as would not equal or exceed such 20% limit, the "Issuable Maximum"), and (c) the Issuer Company shall not have previously obtained the vote of the stockholders shareholders of the Issuer Company (the "Stockholder Shareholder Approval"), if any, as may be required by the applicable rules and regulations of Nasdaq (or any successor entity) to approve the issuance of shares of Common Stock in excess of the Issuable Maximum in a private placement whereby shares of Common Stock are deemed to have been issued at a price that is less than the greater of book value or fair market value of the Common Stock, then with respect to the aggregate principal amount number of Warrant Shares the Securities then held by the Holders for issuance of which a conversion in accordance with the Conversion Price would result in an issuance of shares of Common Stock in excess of the Warrant Holder's (a "Holder") pro rata allocation (as described below) of the Issuable Maximum (the "Excess PrincipalWarrant Shares") ), the Issuer Company may elect to prepay cash to the holders Holders in an amount equal to the Mandatory Prepayment product of (A) the difference between the Per Share Market Value and the Exercise Price, multiplied by (B) the pro rata allocation of such Holder's Excess Warrant Shares (the "Non-Exercise Payment Amount"). Any such election by the Issuer Company must be made in writing to the Holders within two five (5) Trading Days after the Determination Date and the payment of such Mandatory Non-Exercise Prepayment Amount applicable to such prepayment must be made in full to the Holders with within ten (10) Business Days after the date such notice is delivered. If the Issuer Company does not deliver timely a notice of its election to prepay under this Section or shall, if it shall have delivered such a notice, fail to pay the prepayment amount Non-Exercise Payment Amount hereunder within ten (10) Business Days thereafter, then the Holders holders of a majority at least 60% of the aggregate principal amount Underlying Shares exercisable upon exercise of the Securities then outstanding Warrants shall have the option by written notice to the IssuerCompany, to declare any such notice given by the IssuerCompany, if given, to be null and void and require the Issuer Company to either: (i) use its best efforts to obtain the Shareholder Approval applicable to such issuance as soon as is possible, but in any event not later than the 60th day after such request unless the Company has previously used its best efforts to, but has failed to, obtain such approval (provided, that if the Company shall fail to obtain the Shareholder Approval during such 60-day period, the Holder may demand the cash payment set forth in Section 10(ii) herein) or (ii) pay cash to each Holder such Holder, within five (5) Business Days of such Holder's notice, in an amount equal to the Mandatory Non-Exercise Prepayment Amount for such Holder's portion of the Excess PrincipalWarrant Shares. The payment of the Mandatory Non- Exercise Prepayment Amount to each Holder pursuant to this Section shall be determined on a pro rata basis upon the principal amount number of Underlying Shares issuable upon exercise of the Securities Warrants held by such Holder on the determination DateDetermination Date which is in excess of the pro rata allocation of the Issuable Maximum. If the Issuer Company fails to pay the Mandatory Non-Exercise Prepayment Amount in full pursuant to this Section within five (5) Business Days after the date payable, the Issuer Company will pay interest thereon at a rate of seven percent (7%) 20% per annum to the converting Holder, accruing interest daily from the date of conversion exercise until such amount, plus all such interest thereon, if any, is paid in full. In Until the Company has received the Shareholder Approval no event Holder of the Warrants shall the Issuer be required to issue issued, upon exercise of Warrants, shares of Common Stock upon conversion in an amount greater than such Holder's allocated portion of the Securities if such issuance would violate the rules of the Nasdaq Stock MarketIssuable Maximum pursuant to this Section 10.

NASDAQ Limitation. If on any date (the "Determination DateDETERMINATION DATE") (a) the Common Stock is listed for trading on Nasdaq or the Nasdaq Small Cap SmallCap Market, (b) the Conversion Exercise Price then in effect is such that the sum of (x) the aggregate number of shares of Common Stock that would then be issuable upon conversion exercise in full of the then outstanding principal amount of the Securities and as payment of interest thereon, plus Warrants if all such Warrants were exercised on such Determination Date (ywithout regard to any limitations on exercise) the aggregate number of shares of Common Stock that have previously been issued upon conversion of the Securities, plus (z) any shares of Common Stock issued or issuable upon conversion of any other securities of the Issuer (excluding the warrants issued by the Issuer pursuant to that certain Securities Purchase Agreement, dated as of December 10, 1998, and the warrants issued pursuant to the Purchase Agreement) which would be aggregated with the Common Stock issuable upon conversion of the Securities as required by the applicable rules and regulations of Nasdaq (or any successor entity), would equal or exceed 20% of the number of shares of the Common Stock outstanding immediately prior to the Closing Date such exercise date (as defined in the Purchase Agreement) (such number of shares as would not equal or exceed such 20% limit, the "Issuable MaximumISSUABLE MAXIMUM"), and (c) the Issuer Company shall not have previously obtained the any vote of the stockholders shareholders of the Issuer Company owning a majority of the outstanding Common Stock (the "Stockholder ApprovalSHAREHOLDER APPROVAL"), if any, as may be required by the applicable rules and regulations of Nasdaq (or any successor entity) to approve the issuance of shares of Common Stock in excess of the Issuable Maximum in a private placement whereby shares of Common Stock are deemed to have been issued at a price that is less than the greater of book value or fair market value of the Common Stock, then with respect to the aggregate principal amount number of shares of Common Stock issuable upon the exercise of the Securities Warrants then held by the Holders Registered Owners for which a conversion an exercise in accordance with the Conversion Exercise Price would result in an issuance of shares of Common Stock in excess of such Registered Owner's pro rata allocation (as described below) of the Issuable Maximum (the "Excess PrincipalEXCESS AMOUNT") ), the Issuer Company may elect to prepay pay cash to the holders Registered Owners in an amount equal to the Mandatory Prepayment Amountproduct of the Average Price on the Determination Date multiplied by the number of shares of Common Stock that would be issued upon the exercise of the Warrants resulting in the Excess Amount (the "PREPAYMENT AMOUNT"). Any such election by the Issuer Company must be made in writing to the Holders Registered Owners within two (2) Trading Days after the first such Determination Date and the payment of such Mandatory Prepayment Amount applicable to such prepayment must shall be made in full to the Holders Registered Owners with ten (10) Business Days after the date such notice is delivered. If the Issuer Company does not deliver timely a notice of its election to prepay under this Section section or shall, if it shall have delivered such a notice, fail to pay the prepayment amount Prepayment Amount hereunder within ten (10) Business Days thereafter, then the Holders of a majority of the aggregate principal amount of the Securities then outstanding each Registered Owner shall have the option by written notice to the IssuerCompany, to to, if applicable, declare any such notice given by the IssuerCompany, if given, to be null and void and require the Issuer Company to either: (i) use its commercially reasonable efforts to obtain the Shareholder Approval applicable to such issuance as soon as is possible, but in any event not later than the 60th day after such request unless the Company has previously used its commercially reasonable efforts to, but has failed to, obtain such approval (provided, that if the Company shall fail to obtain the Shareholder Approval during such 60-day period, the Registered Owner may demand the cash payment set forth in Section 7(ii)) herein, or (ii) use all commercially reasonable efforts to obtain an exemption from Nasdaq, or (iii) pay cash to each Holder such Registered Owner, within five (5) Business Days of such Registered Owner's notice, in an amount equal to the Mandatory Prepayment Amount for such HolderRegistered Owner's portion of the Excess PrincipalAmount. The payment of the Mandatory Prepayment Amount to each Holder Registered Owner pursuant to this Section section shall be determined on a pro rata basis upon the principal amount number of shares of Common Stock issuable upon the exercise of the Securities Warrants held by such Holder Registered Owner on the determination DateDetermination Date which is in excess of the pro rata allocation of the Issuable Maximum. If the Issuer Company fails to pay the Mandatory Prepayment Amount in full pursuant to this Section 7 within five (5) Business Days after the date payable, the Issuer Company will pay interest thereon at a rate of seven percent (7%) 10% per annum to the converting Holderexercising Registered Owner, accruing interest daily from the date of conversion exercise until such amount, plus all such interest thereon, if any, is paid in full. Until the Company has received the Shareholder Approval no Registered Owner of the Warrants shall be issued, upon exercise of the Warrants, shares of Common Stock in an amount greater than such Registered Owner's allocated portion of the Issuable Maximum. In no event shall the Issuer Company be required to issue shares of Common Stock upon conversion exercise of the Securities Warrants if such issuance would violate the rules of the Nasdaq Stock MarketNasdaq.

NASDAQ Limitation. If on any date (the "Determination Date") (a) ----------------- ------------------ the Common Stock is listed for trading on Nasdaq or the Nasdaq Small Cap SmallCap Market, (b) the Conversion Exercise Price then in effect is such that the sum of (x) the aggregate number of shares of Common Stock that would then be issuable upon conversion exercise in full of the then outstanding principal amount of the Securities and Warrants as payment of interest thereon, plus if all such Warrants were exercised on such Determination Date (ywithout regard to any limitations on exercise) the aggregate number of shares of Common Stock that have previously been issued upon conversion of the Securities, plus (z) any shares of Common Stock issued or issuable upon conversion of any other securities of the Issuer (excluding the warrants issued by the Issuer pursuant to that certain Securities Purchase Agreement, dated as of December 10, 1998, and the warrants issued pursuant to the Purchase Agreement) which would be aggregated with the Common Stock issuable upon conversion of the Securities as required by the applicable rules and regulations of Nasdaq (or any successor entity), would equal or exceed 20% of the number of shares of the Common Stock outstanding immediately prior to the Closing Date (as defined in the Purchase Agreement) (such number of shares as would not equal or exceed such 20% limit, the "Issuable Maximum"), and (c) the Issuer ---------------- Company shall not have previously obtained the vote of the stockholders shareholders of the Issuer Company (the "Stockholder Shareholder Approval"), if any, as may be required by the applicable rules and regulations of Nasdaq (or any successor entity) to approve the issuance of shares of Common Stock in excess of the Issuable Maximum in a private placement whereby shares of Common Stock are deemed to have been issued at a price that is less than the greater of book value or fair market value of the Common Stock, then with respect to the aggregate principal amount of the Securities Warrants then held by the Holders for which a conversion in accordance with the Conversion Price an exercise would result in an issuance of shares of Common Stock in excess of such Holder's pro rata allocation (as described below) or the Issuable Maximum (the "Excess PrincipalShares") ------------- the Issuer Company may elect to prepay cash to the holders Holders in an amount equal to the Mandatory product of (a) the Exercise Price and (b) the number of outstanding Warrants underlying the Excess Shares (the "Prepayment Amount"). Any such election by the Issuer ----------------- Company must be made in writing to the Holders within two five (5) Trading Days after the first such Determination Date and the payment of such Mandatory Prepayment Amount applicable to such prepayment must shall be made in full to the Holders with ten (10) Business Days after the date such notice is delivered. If the Issuer Company does not deliver timely a notice of its election to prepay under this Section section or shall, if it shall have delivered such a notice, fail to pay the prepayment amount Prepayment Amount hereunder within ten (10) Business Days thereafter, then the Holders of a majority of the aggregate principal amount of the Securities Warrants then outstanding shall have the option by written notice to the IssuerCompany to, to if applicable, declare any such notice given by the IssuerCompany, if given, to be null and void and require the Issuer Company to either: (i) use its best efforts to obtain the Shareholder Approval applicable to such issuance as soon as is possible, but in any event not later than the 60/th/ day after such request unless the Company has previously used its best efforts to, but has failed to, obtain such approval (provided, that if the Company shall fail to obtain the Shareholder Approval during such 60-day period, the Holder may demand the cash payment set forth in Section 12(ii)) herein or (ii) pay cash to each Holder such Holder, within five (5) Business Days of such Xxxxxx's notice, in an amount equal to the Mandatory Prepayment Amount for such HolderXxxxxx's portion of the Excess PrincipalShares. The payment of the Mandatory Prepayment Amount to each Holder pursuant to this Section section shall be determined on a pro rata basis upon the principal amount number of the Securities Warrants held by such Holder on the determination DateDetermination Date which is in excess of the pro rata allocation of the Issuable Maximum. If the Issuer Company fails to pay the Mandatory such Prepayment Amount in full pursuant to this Section 12 within five Business Days after the date payable, the Issuer Company will pay interest thereon at a rate of seven percent (7%) 20% per annum to the converting exercising Holder, accruing interest daily from the date of conversion until such amount, plus all such interest thereon, if any, is paid in full. Until the Company has received the Shareholder Approval no Holder of the Warrants shall be issued, upon exercise of the Warrants, shares of Common Stock in an amount greater than such Holder's allocated portion of the Issuable Maximum. In no event shall the Issuer Company be required to issue shares of Common Stock upon conversion exercise of the Securities Warrants if such issuance would violate the rules of the Nasdaq Stock MarketNasdaq.

NASDAQ Limitation. If on any date (the "Determination Date") (a) the ------------------ Common Stock is listed for trading on Nasdaq or the Nasdaq Small Cap MarketNasdaq, (b) the Conversion Exercise Price then in effect is such that the sum of (x) the aggregate number of shares of Common Stock that would then be issuable upon conversion exercise in full of the then outstanding principal amount of the Securities Warrants as if all such Warrants were exercised on such Determination Date (without regard to any limitations on exercises) and as payment of interest thereon, plus (y) the aggregate number of shares of Common Stock that have previously been issued upon conversion of the Securities, plus (z) any shares of Common Stock issued or issuable upon conversion of any other securities of the Issuer (excluding the warrants issued by the Issuer pursuant to that certain Securities Purchase Agreement, dated as of December 10, 1998, and the warrants issued pursuant to the Purchase Agreement) which would be aggregated with the Common Stock issuable upon conversion of the Securities as required by the applicable rules and regulations of Nasdaq (or any successor entity), would equal or exceed 20% of the number of shares of the Common Stock outstanding immediately prior to the "Closing Date Date" (as defined in the Purchase Agreement) (such number of shares as would not equal or exceed such 20% limit, the "Issuable Maximum"), and (c) the Issuer ------------ ---------------- Company shall not have previously obtained the vote of the stockholders shareholders of the Issuer Company (the "Stockholder Shareholder Approval"), if any, as may be required by the -------------------- applicable rules and regulations of Nasdaq (or any successor entity) to approve the issuance of shares of Common Stock in excess of the Issuable Maximum in a private placement whereby shares of Common Stock are deemed to have been issued at a price that is less than the greater of book value or fair market value of the Common Stock, then with respect to the aggregate principal amount number of the Securities Warrants then held by the Holders for which a conversion an exercise in accordance with the Conversion Exercise Price would result in an issuance of shares of Common Stock in excess of such Holder's pro rata allocation (as described below) of the Issuable Maximum (the "Excess PrincipalAmount") ), the Issuer Company may elect to prepay pay cash to the holders Holders ------------- in an amount equal to the Mandatory product of the Average Price on the Determination Date multiplied by the number of shares of Common Stock that would be issued upon the exercise of the Warrants resulting in the Excess Amount (the "Prepayment ---------- Amount"). Any such election by the Issuer Company must be made in writing to the ------ Holders within two five (5) Trading Days after the first such Determination Date and the payment of such Mandatory Prepayment Amount applicable to such prepayment must be made in full to the Holders with ten (10) Business Days after the date such notice is delivered. If the Issuer Company does not deliver timely a notice of its election to prepay under this Section or shall, if it shall have delivered such a notice, fail to pay the prepayment amount Prepayment Amount hereunder within ten (10) Business Days thereafter, then the Holders of a majority of the aggregate principal amount of the Securities then outstanding each Holder shall have the option by written notice to the IssuerCompany, to to, if applicable, declare any such notice given by the IssuerCompany, if given, to be null and void and require the Issuer Company to either: (i) use its best efforts to obtain the Shareholder Approval applicable to such issuance as soon as is possible, but in any event not later than the 60th day after such request unless the Company has previously used its best efforts to, but has failed to, obtain such approval (provided, that if the Company shall fail to obtain the Shareholder Approval during such 60-day period, the Holder may demand the cash payment set forth in Section 8(ii) herein) or (ii) pay cash to each Holder such Holder, within five (5) Business Days of such Holder's notice, in an amount equal to the Mandatory Prepayment Amount for such HolderXxxxxx's portion of the Excess PrincipalAmount. The payment of the Mandatory Prepayment Amount to each Holder pursuant to this Section shall be determined on a pro rata basis upon the principal amount number of shares of Common Stock issuable upon the exercise of the Securities Warrants held by such Holder on the determination DateDetermination Date which is in excess of the pro rata allocation of the Issuable Maximum. If the Issuer Company fails to pay the Mandatory Prepayment Amount in full pursuant to this Section within five (5) Business Days after the date payable, the Issuer Company will pay interest thereon at a rate of seven percent (7%) 20% per annum to the converting Holder, accruing interest daily from the date of conversion until such amount, plus all such interest thereon, if any, is paid in full. In Until the Company has received the Shareholder Approval no event Holder shall the Issuer be required to issue issued, upon exercise of a Warrant , shares of Common Stock upon conversion in an amount greater than such Holder's allocated portion of the Securities if such issuance would violate the rules of the Nasdaq Stock MarketIssuable Maximum pursuant to Section 8.

NASDAQ Limitation. The Company covenants that if any shares of Common Stock required to be reserved for purposes of conversion of Debentures hereunder require registration with or approval of any governmental authority under any Federal or state law, or any national securities exchange, before such shares may be issued upon conversion, the Company will use its best efforts to cause such shares to be duly registered or approved, as the case may be. If on any date (the "Determination Date") (a) the Common Stock is listed for trading on Nasdaq or the Nasdaq Small Cap National Market, (b) the Conversion Exercise Price then in effect is such that the sum of (x) the aggregate number of shares of Common Stock that would then be issuable upon conversion in full of the then outstanding principal amount of the Securities Debentures and exercise in full of the Warrants as if all such Debentures were converted and such warrants were exercised on such Determination Date (without regard to any limitations on conversions) and as payment of interest thereon, plus and (y) the aggregate number of shares of Common Stock that have previously been issued to the Purchasers upon any prior conversion of the Securities, plus (z) any shares of Common Stock issued Debentures or issuable upon conversion of any other securities exercise of the Issuer (excluding the warrants issued by the Issuer pursuant to that certain Securities Purchase Agreement, dated as of December 10, 1998, and the warrants issued pursuant to the Purchase Agreement) which would be aggregated with the Common Stock issuable upon conversion of the Securities as required by the applicable rules and regulations of Nasdaq (or any successor entity)Warrants, would equal or exceed 20% of the number of shares of the Common Stock outstanding immediately prior to on the Closing Date (as defined in the Purchase Agreement) (such number of shares as would not equal or exceed such 20% limit, the "Issuable Maximum"), and (c) the Issuer Company shall not have previously obtained the vote of the stockholders shareholders of the Issuer Company (the "Stockholder Shareholder Approval"), if any, as may be required by the applicable rules and regulations of Nasdaq (or any successor entity) to approve the issuance of shares of Common Stock in excess of the Issuable Maximum in a private placement whereby shares of Common Stock are deemed to have been issued at a price that is less than the greater of book value or fair market value of the Common Stock, then with respect to the aggregate principal amount number of Warrant Shares the Securities then held by the Holders for issuance of which a conversion in accordance with the Conversion Price would result in an issuance of shares of Common Stock in excess of the Warrant Holder's (a "Holder") pro rata allocation (as described below) of the Issuable Maximum (the "Excess PrincipalWarrant Shares") ), the Issuer Company may elect to prepay cash to the holders Holders in an amount equal to the Mandatory Prepayment product of (A) the difference between the Per Share Market Value and the Exercise Price, multiplied by (B) the pro rata allocation of such Holder's Excess Warrant Shares (the "Non-Exercise Payment Amount"). Any such election by the Issuer Company must be made in writing to the Holders within two five (5) Trading Days after the Determination Date and the payment of such Mandatory Non-Exercise Prepayment Amount applicable to such prepayment must be made in full to the Holders with within ten (10) Business Days after the date such notice is delivered. If the Issuer Company does not deliver timely a notice of its election to prepay under this Section or shall, if it shall have delivered such a notice, fail to pay the prepayment amount Non-Exercise Payment Amount hereunder within ten (10) Business Days thereafter, then the Holders holders of a majority at least 60% of the aggregate principal amount Underlying Shares exercisable upon exercise of the Securities then outstanding Warrants shall have the option by written notice to the IssuerCompany, to declare any such notice given by the IssuerCompany, if given, to be null and void and require the Issuer Company to either: (i) use its best efforts to obtain the Shareholder Approval applicable to such issuance as soon as is possible, but in any event not later than the 60th day after such request unless the Company has previously used its best efforts to, but has failed to, obtain such approval (provided, that if the Company shall fail to obtain the Shareholder Approval during such 60-day period, the Holder may demand the cash payment set forth in Section 10(ii) herein) or (ii) pay cash to each Holder such Holder, within five (5) Business Days of such Holder's notice, in an amount equal to the Mandatory Non-Exercise Prepayment Amount for such Holder's portion of the Excess PrincipalWarrant Shares. The payment of the Mandatory Non- Exercise Prepayment Amount to each Holder pursuant to this Section shall be determined on a pro rata basis upon the principal amount number of Underlying Shares issuable upon exercise of the Securities Warrants held by such Holder on the determination DateDetermination Date which is in excess of the pro rata allocation of the Issuable Maximum. If the Issuer Company fails to pay the Mandatory Non-Exercise Prepayment Amount in full pursuant to this Section within five (5) Business Days after the date payable, the Issuer Company will pay interest thereon at a rate of seven percent (7%) 20% per annum to the converting Holder, accruing interest daily from the date of conversion exercise until such amount, plus all such interest thereon, if any, is paid in full. In Until the Company has received the Shareholder Approval no event Holder of the Warrants shall the Issuer be required to issue issued, upon exercise of Warrants, shares of Common Stock upon conversion in an amount greater than such Holder's allocated portion of the Securities if such issuance would violate the rules of the Nasdaq Stock MarketIssuable Maximum pursuant to this Section 10.