Common use of Tranche Notice Restrictions Clause in Contracts

Tranche Notice Restrictions. (A) In no event shall the Company be permitted to deliver a Tranche Notice (and any such Tranche Notice shall be void ab initio), and in no event shall any Tranche be consummated, if, at any time from the applicable Tranche Notice Date through the related Tranche Closing Date (in both cases inclusive), a current, valid and effective Registration Statement and Prospectus is not properly available for use to permit the lawful public resale by the Investor of all Common Shares underlying the Warrant (including the portion of the Warrant vesting on the applicable Tranche Notice Date) and underlying the Additional Investment Right with respect to the applicable Tranche Notice Date and, if applicable, all Commitment Fee Shares then held by the Investor or any of its Affiliates, or any such Common Shares would not be immediately freely tradable by Investor or any of its Affiliates. (B) At no time may the Company deliver a Tranche Notice if the number of Warrant Shares and/or Additional Investment Shares to be received pursuant to the automatic exercise of the Warrant and the automatic exercise of the Additional Investment Right, in each case, triggered by such Tranche Notice, aggregated with all other shares of Common Stock and other voting securities then owned or deemed beneficially owned by Investor and its Affiliates, would result in Investor and/or its Affiliates owning or being deemed the beneficial owner of more than 9.9% of all of such Common Stock, with such ownership percentage determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder (the “Investor Ownership Limit”). The provisions of this Section 2.3(c)(iii)(B) shall be implemented in a manner otherwise than in strict conformity with the terms of this paragraph to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Investor Ownership Limit herein contained or to make changes or supplements necessary or desirable to properly give effect to such Investor Ownership Limit. The holders of Common Stock shall be third party beneficiaries of this Section 2.3(c)(iii)(B) and the Company may not waive this paragraph without the consent of holders of a majority of its Common Stock. (C) In addition to the restrictions set forth above, at no time may the Company deliver a Tranche Notice if the number of Common Shares to be issued upon the automatic exercise of the Warrant and the automatic exercise of the Additional Investment Right, in each case, triggered by such Tranche Notice (together with the Commitment Fee Shares (if any) and all Common Shares issued pursuant to previous Tranche Notices) would exceed the aggregate number of Common Shares which the Company may issue without breaching the Company’s obligations under the rules or regulations of the applicable 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 the Company (A) obtains the approval of its stockholders as required by the applicable rules of the applicable Trading Market for issuances of Common Shares in excess of such amount or (B) obtains a written opinion from reasonable outside counsel to the Company that such approval is not required.

Tranche Notice Restrictions. (A) In no event shall the Company be permitted to deliver a Tranche Notice (and any such Tranche Notice shall be void ab initio), and in no event shall any Tranche be consummated, if, : (i) If at any time from the applicable Tranche Notice Date through the related Tranche Closing Date (in both cases inclusive), a current, valid and effective Registration Statement and Prospectus is not properly available for use to permit the lawful public resale by the Investor of all Common Shares underlying the Warrant (including the portion of the Warrant vesting on the applicable Tranche Notice Date) and underlying the Additional Investment Right with respect to the applicable Tranche Notice Date and, if applicable, all Commitment Fee Shares then held by the Investor or any of its Affiliates, and, if applicable, the resale by the Placement Agent of all Placement Agent Fee Shares, or any such Common Shares would not be immediately freely tradable by Investor or any of its AffiliatesAffiliates or, if applicable, by the Placement Agent. (Bii) At no time may the Company deliver a Tranche Notice if If the number of Warrant Shares and/or Additional Investment Shares to be received pursuant to the automatic exercise of the Warrant and the automatic exercise of the Additional Investment Right, in each case, triggered by such Tranche Notice, aggregated with all other shares of Common Stock and other voting securities then owned or deemed beneficially owned by Investor and its Affiliates, would result in Investor and/or its Affiliates owning or being deemed the beneficial owner of more than 9.99.99% of all of such Common Stock, with such ownership percentage determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder (the “Investor Ownership Limit”). The provisions of this Section 2.3(c)(iii)(B) shall be implemented in a manner otherwise than in strict conformity with the terms of this paragraph to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Investor Ownership Limit herein contained or to make changes or supplements necessary or desirable to properly give effect to such Investor Ownership Limit. The holders of Common Stock shall be third party beneficiaries of this Section 2.3(c)(iii)(B) and the Company may not waive this paragraph without the consent of holders of a majority of its Common Stock. (Ciii) In addition to the restrictions set forth above, at no time may the Company deliver a Tranche Notice if If the number of Common Shares to be issued upon the automatic exercise of the Warrant and the automatic exercise of the Additional Investment Right, in each case, triggered by such Tranche Notice (together with the Commitment Placement Agent Fee Shares (if any) and all Common Shares issued pursuant to previous Tranche Notices) would exceed the aggregate number of Common Shares which the Company may issue without breaching the Company’s obligations under the rules or regulations of the applicable 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 the Company (A) obtains the approval of its stockholders as required by the applicable rules of the applicable Trading Market for issuances of Common Shares in excess of such amount or amount. (Biv) obtains a written opinion from reasonable outside counsel Unless the Closing Bid Price of the Common Stock on the most recently completed Trading Day prior to the Company time that such approval is not requiredthe Tranche Notice was delivered or deemed delivered equals or exceeds the greater of (1) the Book Value of the Common, and (2) the Closing Bid Price of the Common Stock, in each case, on the most recently completed Trading Day prior to the Effective Date.

Tranche Notice Restrictions. (A) In no event shall the Company be permitted to deliver a Tranche Notice (and any such Tranche Notice shall be void ab initio), and in no event shall any Tranche be consummated, if, at any time from if the applicable Tranche Notice Date through the related Tranche Closing Date (in both cases inclusive), a current, valid and total number of shares covered by an effective Registration Statement and Prospectus is not properly available for use insufficient to permit cover the lawful public resale by the Investor number of all Common Shares shares underlying the Warrant Warrants (including the portion of the Warrant vesting on the applicable Tranche Notice Date) and underlying the Additional Investment Right with respect to the applicable Tranche Notice Date and, if applicable, all the Commitment Fee Shares then held by the Investor or any of its AffiliatesShares, or any such Common Shares shares would not be immediately freely tradable by Investor or any of its AffiliatesInvestor. (B) At no time may the Company deliver a Tranche Notice if the number of Warrant Shares and/or Additional Investment Shares to be received pursuant to the automatic exercise of the Warrant and the automatic exercise of the Additional Investment Right, in each case, triggered by such Tranche Notice, aggregated with Notice (excluding all other shares of Common Stock and other voting securities then owned or deemed beneficially owned by Investor and its Affiliates), would result in Investor and/or its Affiliates owning or being deemed the beneficial owner of more than 9.99.99% of all of such Common Stock, with such ownership percentage determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder (the “Investor Ownership Limit”). The provisions ; provided, however, that in the case of this Section 2.3(c)(iii)(B) the first Tranche Notice, the Commitment Fee Shares then owned or deemed beneficially owned by Investor or to be issued to Investor shall be implemented in a manner otherwise than in strict conformity with included when determining whether such Tranche would exceed the terms of this paragraph to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Investor Ownership Limit herein contained or to make changes or supplements necessary or desirable to properly give effect to such Investor Ownership Limit. The holders of Common Stock shall be third party beneficiaries of this Section 2.3(c)(iii)(B) and the Company may not waive this paragraph without the consent of holders of a majority of its Common Stock. (C) In addition to the restrictions set forth above, at no time may the Company deliver a Tranche Notice if the number of Common Shares to be issued upon the automatic exercise of the Warrant and the automatic exercise of the Additional Investment Right, in each case, triggered by such Tranche Notice (together with the Commitment Fee Shares (if any) and all Common Shares issued pursuant to previous Tranche Notices) would exceed the aggregate number of Common Shares which the Company may issue without breaching the Company’s obligations under the rules or regulations of the applicable 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 the Company (A) obtains the approval of its stockholders as required by the applicable rules of the applicable Trading Market for issuances of Common Shares in excess of such amount or (B) obtains a written opinion from reasonable outside counsel to the Company that such approval is not required.

Tranche Notice Restrictions. (A) In no event shall the Company be permitted to deliver a Tranche Notice (and any such Tranche Notice shall be void ab initio), and in no event shall any Tranche be consummated, if: (i) If, at any time from the applicable Tranche Notice Date through the related Tranche Closing Date (in both cases inclusive), a current, valid and effective Registration Statement and Prospectus is not properly available for use to permit the lawful public sale and resale by the Investor of all Common Shares underlying the Warrant (including the portion of the Warrant vesting on the applicable Tranche Notice Date) and underlying the Additional Investment Right with respect to the applicable Tranche Notice Date and, if applicable, all Commitment Fee Shares then held by the Investor or any of its Affiliates, and, if applicable, the resale by the Investor of all Investor Fee Shares then held by the Investor, or any such Common Shares would not be immediately freely tradable by Investor or any of its Affiliates, as applicable. (Bii) At no time may the Company deliver a Tranche Notice if the number of Warrant Shares and/or Additional Investment Shares to be received pursuant to the automatic exercise of the Warrant and the automatic exercise of the Additional Investment Right, in each case, triggered by such Tranche Notice, aggregated with all other shares of Common Stock and other voting securities then owned or deemed beneficially owned by Investor and its Affiliates, would result in Investor and/or its Affiliates owning or being deemed the beneficial owner of more than 9.99.99% of all of such Common Stock, with such ownership percentage determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder (the “Investor Ownership Limit”). The provisions of this Section 2.3(c)(iii)(B) shall be implemented in a manner otherwise than in strict conformity with the terms of this paragraph to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Investor Ownership Limit herein contained or to make changes or supplements necessary or desirable to properly give effect to such Investor Ownership Limit. The holders of Common Stock shall be third party beneficiaries of this Section 2.3(c)(iii)(B) and the Company may not waive this paragraph without the consent of holders of a majority of its Common Stock. (Ciii) In addition to the restrictions set forth above, at no time may the Company deliver a Tranche Notice if the number of Common Shares to be issued upon the automatic exercise of the Warrant and the automatic exercise of the Additional Investment Right, in each case, triggered by such Tranche Notice (together with the Commitment Investor Fee Shares (if any) and all Common Shares issued pursuant to previous Tranche Notices) would exceed the lesser of (x) the aggregate number of Common Shares which the Company may issue without breaching the Company’s obligations under the rules or regulations of the applicable 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 the Company (A) obtains the approval of its stockholders as required by the applicable rules of the applicable Trading Market for issuances of Common Shares in excess of such amount or (B) obtains a written opinion from reasonable outside counsel to the Company that such approval is not requiredrequired and (y) the maximum number of shares of Common Stock that the Company may issue pursuant to the Warrant, this Agreement and the transactions contemplated hereby without exceeding the limitations set forth in General Instruction I.B.6. of Form S-3 and the interpretations of the SEC’s staff set forth in response to question 139.21 of the Compliance and Disclosure Interpretations of Securities Act Sections of the Division of Corporation Finance of the Commission dated March 4, 2011 (the “Registration Statement Eligibility Cap”) (it being hereby acknowledged and agreed that the Registration Statement Eligibility Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement). For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the transactions contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(e)(iii), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement.