Trading Market Regulation. Notwithstanding anything in this Agreement to the contrary, neither the Exchange Cap nor the Single Fixed Request Limit shall be applicable for any purposes of this Agreement or the transactions contemplated hereby, solely to the extent (and only for so long as) the Average Discount Price shall equal or exceed the Base Price (it being hereby acknowledged and agreed that each of the Exchange Cap and the Single Fixed Request Limit shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all other times during the term of this Agreement); provided, however, that the Company shall not issue any shares of Common Stock under this Agreement if such issuance would otherwise breach the Company’s obligations under the rules and regulations of NASDAQ or any other Trading Market on which the Common Stock may be listed or quoted. “Base Price” shall mean a price per Share equal to $1.46, representing the consolidated closing bid price of the Common Stock as reported on NASDAQ on the Effective Date, subject to (a) upward adjustment (by such amount to be mutually agreed by the Company and the Investor consistent with the rules and regulations of NASDAQ or any other Trading Market on which the Common Stock may be listed or quoted) in the event any shares of Common Stock are issued by the Company as partial damages pursuant to Section 9.1(ii) and (b) adjustment for any stock splits, stock combinations, stock dividends, recapitalizations and other similar transactions that occur on or after the date of this Agreement. The Company hereby represents and warrants to the Investor that the book value per share of Common Stock on the Effective Date is less than the Base Price. “Average Discount Price” shall mean a price per Share (rounded to the nearest tenth of a cent) equal to the quotient obtained by dividing (i) the total aggregate gross purchase price paid by the Investor for all Shares purchased pursuant to all Fixed Requests and Optional Amounts under this Agreement, by (ii) the total aggregate number of Shares issued pursuant to all Fixed Requests and Optional Amounts under this Agreement. The provisions of this Section 2.13 shall be implemented in a manner otherwise than in strict conformity with the terms of this Section 2.13, only if necessary to ensure compliance with the rules and regulations of NASDAQ or any other Trading Market on which the Common Stock may be listed or quoted.
Trading Market Regulation. The Company shall not issue any shares of Common Stock pursuant to the terms of any Note if the issuance of such Common Stock would exceed the aggregate number of shares of Common Stock which the Company may issue without breaching the Company’s obligations under the rules or regulations of the Trading Market.
Trading Market Regulation. The Company shall not issue any Shares under this Agreement if such issuance would otherwise breach the Company’s obligations under the rules and regulations of any Trading Market on which the Common Stock may then be listed or quoted. The provisions of this Section 2.8 shall be implemented in a manner otherwise than in strict conformity with the terms of this Section 2.8 only if necessary to ensure compliance with the rules and regulations of any Trading Market on which the Common Stock may be listed or quoted.
Trading Market Regulation. Notwithstanding anything to the contrary, if on the Conversion Date the Common Stock is listed on a national securities exchange, the Holder may only convert an amount of the Outstanding Balance such that the total cumulative number of Conversion Shares and all shares issued upon the conversion of the Related Notes and the exercise of the Warrants and all warrants issued to holders of the Related Notes shall not exceed the requirements of Nasdaq Listing Rule 5635(d), except that such limitation shall not apply to the extent that the Company obtains the approval of its stockholders for such issuance.”
Trading Market Regulation. Evergreen shall not be obligated to issue any shares of Common Stock upon conversion of this Note if the issuance of such shares of Common Stock would exceed the aggregate number of shares of Common Stock which Evergreen may issue upon conversion of the Notes in the aggregate without breaching Evergreen’s obligations under the rules or regulations of any applicable Trading Market, except that such limitation shall not apply in the event that Evergreen (A) obtains the approval of its stockholders as required by the applicable rules of such Trading Market for issuances of Common Stock in excess of such amount or (B) obtains a written opinion from outside counsel to Evergreen that such approval is not required, which opinion shall be reasonably satisfactory to the Holder.
Trading Market Regulation. Notwithstanding Section 2.12 above and subject to the prior approval of the NYSE MKT or any other Trading Market on which the Common Stock may be listed or quoted after the date of this Agreement (to the extent required), the Exchange Cap shall not be applicable for any purposes of this Agreement and the transactions contemplated hereby, solely to the extent that the issuances and sales of Common Stock pursuant to this Agreement are deemed to be at a price equal to or in excess of the greater of book or market value of the Common Stock as calculated in accordance with the applicable rules of the NYSE MKT or any other Trading Market on which the Common Stock may be listed or quoted after the date of this Agreement (it being hereby acknowledged and agreed that the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all other times during the term of this Agreement, unless the stockholder approval referred to in Section 2.12 is obtained).
Trading Market Regulation. The Company shall not be required to issue any shares of Common Stock upon receipt of a Conversion Notice if the issuance of such shares together with any previous issuances of shares pursuant to this Note by the Holder hereof would exceed 1,917,700shares of Common Stock [19.9% of the shares of Common Stock outstanding], subject to appropriate adjustment for any stock dividends, stock splits, combination, reclassification or similar transactions after the date hereof (the "Exchange Cap"). Upon any conversion of this Note, the Company shall issue the maximum amount of the number of shares of Common Stock set forth in the applicable Conversion Notice that may be issued without exceeding the Exchange Cap. For the avoidance of doubt, to the extent the conversion of any Principal and Interest of this Note pursuant to any Conversion Notice in respect of a Conversion would have resulted in an issuance of shares in excess of the Exchange Cap, such Principal and Interest shall not be converted, and such Principal shall remain outstanding and shall be repaid in cash in accordance with the terms of this Note.
Trading Market Regulation. Notwithstanding anything to the contrary, the Company shall not issue any Conversion Shares upon conversion of this Note, or otherwise, and the Holder may only convert an amount of the Outstanding Balance, such that the total cumulative number of Conversion Shares and all shares issued upon the conversion of the Related Notes and the exercise of all warrants issued to holders of the Related Notes shall not exceed the aggregate number of Conversion Shares that the Company may issue in a transaction in compliance with the Company’s obligations under the rules or regulations of the Nasdaq Stock Market (“Nasdaq”), except that such limitation shall not apply to the extent that the Company (i) obtains the approval of its stockholders for such issuance as required by the applicable rules of Nasdaq for issuances of shares in excess of such amount or (ii) an exception pursuant to Nasdaq Rule 5635(f) has been obtained by the Company.
