Nasdaq Limitations. Notwithstanding anything to the contrary in this Note, the Holder shall have no right to receive from the Maker, upon conversion of this Note, such number of shares which together with such number of shares that may be issued by the Maker pursuant to those certain Convertible Promissory Notes issued pursuant to that certain Purchase Agreement dated October 15, 2012, between the Maker and Hanover Holdings I, LLC, that is more than 19.999% of the amount of Common Stock of the Company issued and outstanding on the date of the Exchange Agreement, unless the Maker’s shareholders shall have approved the transactions contemplated hereby, including the issuance of shares upon conversion of this Note, in excess of 20% of the amount of Common Stock of the Maker issued and outstanding on the date of the Exchange Agreement.
Nasdaq Limitations. Notwithstanding anything to the contrary in this Note, during such time as the Company’s shares are listed for trading on Nasdaq Capital Market, the Holder shall have no right to receive from the Maker, more than 19.999% of the amount of Common Stock of the Company issued and outstanding on the date of this Note, unless the Maker’s shareholders shall have approved the transactions contemplated hereby, including the issuance of shares upon conversion of this Note, in excess of 20% of the amount of Common Stock of the Maker issued and outstanding on the date of this Note.
Nasdaq Limitations. Notwithstanding anything to the contrary in this Agreement, the Credit Agreement or the Monroe Warrants (as defined in the Credit Agreement), during such time as the Company’s shares are listed for trading on The Nasdaq Capital Market (or any other securities exchange with similar restrictions), the Administrative Agent shall have no right to receive from the Company, including the Securities and the shares underlying the Monroe Warrants, more than 19.999% of the amount of Common Stock of the Company issued and outstanding on November 15, 2021, when taken together with any shares issued pursuant to the Second Lien Agreement (as defined in the Credit Agreement), unless the Company’s shareholders shall have approved the transactions contemplated hereby and by the Monroe Warrants. The foregoing shall not in any way limit the Administrative Agent’s ability to pursue any remedies against the Company pursuant to the terms of this Agreement or the Monroe Warrants for failure to deliver shares of Common Stock in accordance with the terms of such documents.
Nasdaq Limitations. Notwithstanding anything to the contrary in this Agreement, the Notes, or the Warrants, during such time as the Company’s shares are listed for trading on Nasdaq Capital Markets, the Purchasers collectively shall have no right to receive from the Company, including from Origination Shares, Note Shares, Warrant Shares (to the extent such Warrant Shares must be included for purposes of NASDAQ Rule 5635(d)), or Escrow Shares (to the extent such Escrow Shares have not been returned to the Company for cancellation), more than 19.999% of the amount of Common Stock of the Company issued and outstanding on the Closing Date, unless the Company’s shareholders shall have approved the transactions contemplated hereby, including without limitation the issuance of Origination Shares, Escrow Shares, Note Shares and Warrant Shares in excess of 20% of the amount of Common Stock of the Company issued and outstanding on the Closing Date. The foregoing shall not in any way limit the Purchasers’ ability to pursue any remedies against the Company pursuant to the terms of this Agreement, the Notes, the Warrants, or the Security Agreement for failure to deliver shares of Common Stock in accordance with the terms of such documents.
Nasdaq Limitations. If Nasdaq rules prohibit the issuance of Preferred with the conversion and voting rights as set forth above without the approval of the DMC shareholders, (i) the Preferred shall be convertible, and have voting rights, as set forth above to the maximum extent then permitted by Nasdaq rules and (ii) DMC shall use commercially reasonable efforts to obtain shareholder approval as promptly as is reasonably practicable.
Nasdaq Limitations. Unless permitted by the applicable rules and regulations of The Nasdaq SmallCap Market (or the principal securities exchange on which the Common Stock shall be listed or traded if changed from The Nasdaq SmallCap Market), the aggregate number of shares of Common Stock (i) issued or issuable upon conversion of the Preferred Shares, (ii) issued as dividends on the Preferred Shares under Section 2 of the Certificate of Determination relating thereto, (iii) issued as Default Shares under Section 4(g) of the Purchase Agreement, (iv) issued or issuable upon exercise of this Warrant and (v) issued or issuable upon exercise of up to 100,000 of the warrants described in paragraph (f)(v)(D) hereof shall not exceed the number of shares of Common Stock that the Company can issue pursuant to Nasdaq Marketplace Rule 4310(c)(25)(H) (as amended as set forth in SEC Release No. 34-38469).
Nasdaq Limitations. For the avoidance of confusion, this Warrant may not be exercised into Warrant Shares in any circumstance under which, when aggregated with all shares of Common Stock issuable under the Subscription Agreement, results in the Initial Holder receiving in the aggregate, more than 19.99% of shares of Common Stock outstanding as of the Issuance Date (the “Exchange Cap”). The Exchange Cap shall be reduced, on a share-for-share basis, by the number of shares of Common Stock that may be aggregated with the transactions contemplated by the Subscription Agreement under applicable rules of the Nasdaq Stock Market LLC.
Nasdaq Limitations. (A) The Company shall not be obligated to issue all of the any shares of Common Stock under this Agreement if the issuance of such shares would exceed that number of shares of Common Stock which the Company may issue (the "Exchange Cap") without breaching the Company's obligations under the rules or regulations of the Nasdaq Stock Market, or the market or exchange where the Common Stock is then traded (the "Principal Market"), except that such limitation shall not apply in the event that the Company (a) obtains the approval of its stockholders as required by the applicable rules of the Principal Market, or the market or exchange where the Common Stock is then traded, (or any successor rule or regulation) for issuances of Common Stock in excess of such amount, or (b) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory to SJMB.
(B) In the event that the Company is unable to issue, the full amount of shares because of the rules of the Principal Market, the Company shall issue the minimum number of shares of Common Stock (the "Minimum Shares") that could be issued without requiring the approval of the stockholders of the Company and shall use its best efforts to obtain within 75 days, either (I) the written waiver from the Principal Market of the requirements of its shareholder approval requirements as it applies to the excess of the shares of Common Stock it is required to issue over the Minimum Shares (the "Excess Shares") or (II) obtain the approval of the Company's stockholders, in accordance with the requirements of the applicable Principal Market, to allow for the issuance of the Excess Shares and to recommend such proposal to its stockholders.
Nasdaq Limitations. The Securities are being offering pursuant to stockholder approval authorizing the board of directors of the Company to issue up to 25 million shares of Common Stock at the Company’s annual stockholder meeting held on March 27, 2012 and as described in the Company’s definitive proxy statement on Schedule 14A (Amended) filed with the U.S. Securities and Exchange Commission on March 14, 2012. As such, the sale and issuance of the Securities are believed to comply with, in all respects, Nasdaq Listing Rule 5635. If Nasdaq were to disagree with the foregoing sentence then, notwithstanding anything to the contrary in this Guaranty Agreement, the Agreement, the Note, or the Warrant, during such time as the Company’s shares are listed for trading on The Nasdaq Capital Market, unless the Company shall have obtained a stockholder approval deemed sufficient by Nasdaq, the Company may not issue to the Purchaser under the Agreement, the Note or the Warrant a number of shares of Common Stock of the Company which, when aggregated with any shares of Common Stock issued to the Purchaser under the Agreement, the Note or the Warrant, including any Origination Shares, Conversion Shares under the Note, Warrant Shares under the Warrant, or any shares of Common Stock pledged by the Guarantor, regardless of whether the Purchaser forecloses upon such pledge, would exceed 19.999% of the amount of Common Stock of the Company issued and outstanding on the date of the Closing (subject to adjustment for forward and reverse stock splits, recapitalizations and the like). The Company agrees to submit the transactions contemplated by Securities Purchase Agreement Document SPA-06272012 to its stockholders for approval in a manner deemed sufficient by Nasdaq on or before September 21, 2012, such approval to be on a stand-alone basis or as a portion of a more general proposal that describes such transactions. The foregoing shall not in any way limit the Purchaser’s ability to pursue any remedies against the Company or the Guarantor pursuant to the terms of this Guaranty Agreement, the Agreement, the Notes, the Warrants, or the Security Agreement for failure to deliver shares of Common Stock in accordance with the terms of such documents.
Nasdaq Limitations. Notwithstanding anything to the contrary contained in this Agreement, under no circumstances whatsoever shall the aggregate number of Buyer Shares, issued or issuable to Sellers in connection with the this Agreement exceed, in the aggregate, 19.99% of the total number of Buyer Shares outstanding or of the voting power of Buyer unless Buyer has obtained either (x) its stockholders’ approval of the issuance of more than such number of Buyer Shares pursuant to NASDAQ Marketplace Rule 5635(d), or (y) a waiver from The NASDAQ Stock Market of Buyer’s compliance with Rule 5635(d).
