Common use of Trading Market Regulation Clause in Contracts

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. 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 the NASDAQ or any other Trading Market on which the Common Stock may be listed or quotedMarket. “Base Price” shall mean a price per Share equal to $1.462.03, representing the consolidated closing bid price of the Common Stock as reported on by the NASDAQ Stock Market on the Effective Trading Day immediately preceding the Closing 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 Trading Day immediately preceding the Closing 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 3.11 shall be implemented in a manner otherwise than in strict conformity with the terms of this Section 2.133.11, only if necessary to ensure compliance with the rules and regulations of the NASDAQ or any other Trading Market on which the Common Stock may be listed or quotedMarket.

Trading Market Regulation. Notwithstanding anything in this Agreement to the contrary, neither the Exchange Cap nor the Single Fixed Request Trading Market Limit shall not 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 Trading Market 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 the Trading Market on which the Common Stock may be listed or quotedMarket. “Base Price” shall mean a price per Share equal to $1.461.40, representing the consolidated closing bid price of the Common Stock as reported on NASDAQ the Trading Market on the Trading Day immediately preceding 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 the Trading Market on which the Common Stock may be listed or quotedMarket) in the event any shares of Common Stock are issued by the Company as partial liquidated 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 Trading Day immediately preceding 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 the Trading Market on which the Common Stock may be listed or quotedMarket.

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 $1.465.48, 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. 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 The Company shall not be obligated to issue any shares of Common Stock under upon conversion of this Agreement Note, and the Holder of this Note shall not have the right to receive upon conversion of this Note any shares of Common Stock, if the issuance of such issuance shares of Common Stock would otherwise breach exceed the aggregate number of shares of Common Stock which the Company may issue upon conversion or exercise, as applicable, of the Notes and Additional Notes without breaching the Company’s obligations under the rules and or regulations of NASDAQ or any other the Trading Market on which (the Common Stock may be listed or quoted. “Base Price” Exchange Cap”), except that such limitation 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) not apply in the event any that the Company obtains the Shareholder Approval. Until such approval is obtained, no Purchaser shall be issued in the aggregate, upon conversion or exercise, as applicable, of Notes, shares of Common Stock are in an amount greater than the product of the Exchange Cap multiplied by a fraction, the numerator of which is the principal amount of Notes issued by to such Purchaser and 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 denominator of which is the date aggregate principal amount of this Agreement. The Company hereby represents and warrants all Notes issued to the Investor Purchasers (with respect to each Purchaser, the “Exchange Cap Allocation”). In the event that any Purchaser shall sell or otherwise transfer any of such Purchaser’s Notes, the book value per share transferee shall be allocated a pro rata portion of such Purchaser’s Exchange Cap Allocation, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation allocated to such transferee. In the event that any holder of Notes shall convert all of such holder’s Notes into a number of shares of Common Stock on which, in the Effective Date aggregate, is less than such holder’s Exchange Cap Allocation, then the Base Price. “Average Discount Price” difference between such holder’s Exchange Cap Allocation and the number of shares of Common Stock actually issued to such holder shall mean a price per Share (rounded be allocated to the nearest tenth respective Exchange Cap Allocations of the remaining holders of Notes on a cent) equal pro rata basis in proportion to the quotient obtained aggregate principal amount of the Notes then held 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 quotedeach such holder.

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 the sum of (i) the Signing Market Price and (ii) $1.46, representing the consolidated closing bid price of the Common Stock as reported on NASDAQ on the Effective Date0.13, 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. “Signing Market Price” shall mean $3.73, representing the consolidated closing bid price of the Common Stock as reported on NASDAQ on the Effective Date. 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.the

Trading Market Regulation. Notwithstanding anything in this Agreement to the contrary, neither the Exchange Cap nor the Single Fixed Request Trading Market Limit shall not 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 Trading Market 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 the Trading Market on which the Common Stock may be listed or quotedMarket. “Base Price” shall mean a price per Share equal to $1.465.02, representing the consolidated closing bid price of the Common Stock as reported on NASDAQ the Trading Market on the Trading Day immediately preceding 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 the Trading Market on which the Common Stock may be listed or quotedMarket) 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 Trading Day immediately preceding 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 the Trading Market on which the Common Stock may be listed or quotedMarket.

Trading Market Regulation. Notwithstanding anything in this Agreement to the contrary, neither the Exchange Cap nor the Single Fixed Request Trading Market Limit shall not 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 Trading Market 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 the Trading Market on which the Common Stock may be listed or quotedMarket. “Base Price” shall mean a price per Share equal to the sum of (i) the Signing Market Price and (ii) $1.46, representing the consolidated closing bid price of the Common Stock as reported on NASDAQ on the Effective Date0.011, 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. “Signing Market Price” shall mean $1.84, representing the consolidated closing bid price of the Common Stock as reported on the Trading Market on the Trading Day immediately preceding the Closing Date. The Company hereby represents and warrants to the Investor that the book value per share of Common Stock on the Effective Trading Day immediately preceding the Closing Date is less than the Base Signing Market 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 3.11 shall be implemented in a manner otherwise than in strict conformity with the terms of this Section 2.133.11, only if necessary to ensure compliance with the rules and regulations of NASDAQ or any other the Trading Market on which the Common Stock may be listed or quotedMarket.

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 $1.463.89, 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.