Common use of Exchange Cap Clause in Contracts

Exchange Cap. Notwithstanding anything to the contrary contained in this Agreement, subject to Section 2.13 below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement would exceed 177,944,443 shares of Common Stock (which number of shares shall be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under 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) (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the transactions contemplated by this Agreement and the stockholders of the Company have in fact approved the transactions contemplated by this Agreement in accordance with the applicable rules and regulations of the NYSE MKT, any other Trading Market on which the Common Stock may be listed or quoted after the date of this Agreement, and the Charter and Bylaws of the Company. For the avoidance of doubt, the Company shall use its reasonable best efforts to request its stockholders to approve the transactions contemplated by this Agreement no later than the next annual meeting of the Company’s stockholders; provided, that if stockholder approval is not obtained in accordance with the applicable rules of the NYSE MKT or any other Trading Market with comparable stockholder approval requirements on which the Common Stock may be listed or quoted after the date of this Agreement, 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 (except as set forth in Section 2.13 below). If the Company issues a Fixed Request Notice or Optional Amount that otherwise would permit the Investor to purchase shares of Common Stock which would cause the aggregate purchases by the Investor under this Agreement to exceed the Aggregate Limit, such Fixed Request Notice or Optional Amount shall be void ab initio to the extent of the amount by which the dollar value of shares or number of shares, as the case may be, of Common Stock otherwise issuable pursuant to such Fixed Request Notice or Optional Amount together with the dollar value of shares or number of shares, as the case may be, of all other Common Stock purchased by the Investor pursuant to this Agreement, or issued as partial damages pursuant to Section 9.1(ii), would exceed the Aggregate Limit. The Company hereby represents, warrants and covenants that neither it nor any of its Subsidiaries (i) has effected any transaction or series of transactions, (ii) is a party to any pending transaction or series of transactions or (iii) shall enter into any contract, agreement, agreement-in-principle, arrangement or understanding with respect to, or shall effect, any Other Financing which, in any of such cases, may be aggregated with the transactions contemplated by this Agreement for purposes of determining whether approval of the Company’s stockholders is required under applicable rules of the NYSE MKT or any other Trading Market with comparable stockholder approval requirements on which the Common Stock may be listed or quoted; provided, however, that the Company shall be permitted to take any action referred to in clause (iii) of this sentence if (a) the Company has timely provided the Investor with an Integration Notice as provided in Section 5.6(ii) hereof and (b) unless the Investor has previously terminated this Agreement pursuant to Section 7.2, the Company obtains any requisite stockholder approval which may be required for the Company to consummate such Other Financing described in such Integration Notice.

Exchange Cap. Notwithstanding anything to the contrary contained in this Agreement, subject to Section 2.13 below, the The Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock Registrable Shares that would be issued pursuant to this Agreement and the transactions contemplated by the Transaction Documents would exceed 177,944,443 10,051,528 shares of Common Stock (representing 19.99% of the voting power or number of shares of Common Stock issued and outstanding immediately prior to the execution of this Agreement), which number of shares shall be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement the Transaction Documents under applicable rules of the NYSE MKT or any other Trading Principal Market on which the Common Stock may be listed or quoted after the date (such maximum number of this Agreement) (shares, the “Exchange Cap”), unless and until the Company elects Company’s stockholders have approved the issuance of Common Stock pursuant to solicit stockholder approval this Agreement in excess of the transactions contemplated by this Agreement and the stockholders of the Company have in fact approved the transactions contemplated by this Agreement Exchange Cap in accordance with the applicable rules and regulations of the NYSE MKT, any other Trading Principal Market on which or such approval is not required in accordance with the Common Stock may be listed or quoted after the date of this Agreement, and the Charter and Bylaws applicable rules of the CompanyPrincipal Market or otherwise. For the avoidance of doubt, the Company may, but shall use its reasonable best efforts to be under no obligation to, request its stockholders to approve the transactions contemplated by issuance of Common Stock pursuant to this Agreement no later than the next annual meeting of the Company’s stockholdersAgreement; provided, that if such stockholder approval is not obtained in accordance with the applicable rules of the NYSE MKT or any other Trading Market with comparable stockholder approval requirements on which the Common Stock may be listed or quoted after the date of this Agreementobtained, the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby by the Transaction Documents at all times during the term of this Agreement (except as set forth in Section 2.13 below3.3(b)). If The Investor shall not have the Company issues a Fixed Request Notice right or Optional Amount that otherwise would permit the Investor obligation to purchase or acquire any shares of Common Stock which would cause the aggregate purchases by the Investor under this Agreement to exceed the Aggregate Limit, such Fixed Request Notice or Optional Amount shall be void ab initio to the extent of the amount by which the dollar value of shares or number of shares, as the case may be, of Common Stock otherwise issuable pursuant to such Fixed Request Notice or Optional Amount together with the dollar value of shares or number of shares, as the case may be, of all other Common Stock purchased by the Investor pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock held by the Investor immediately following such purchase will cause the Investor to have beneficial ownership of more than the number of shares of Common Stock representing 19.99% of the voting power or number of shares of Common Stock issued as partial damages pursuant and outstanding immediately prior to Section 9.1(ii)such purchase, would exceed the Aggregate Limit. The Company hereby represents, warrants and covenants that neither it nor any of its Subsidiaries (i) has effected any transaction or series of transactions, (ii) is a party to any pending transaction or series of transactions or (iii) shall enter into any contract, agreement, agreement-in-principle, arrangement or understanding with respect to, or shall effect, any Other Financing which, in any of such cases, may be aggregated with the transactions contemplated by this Agreement for purposes of determining whether approval of unless the Company’s stockholders is required under have approved such purchase of Common Stock in accordance with the applicable rules of the NYSE MKT Principal Market or any other Trading such approval is not required in accordance with the applicable rules of the Principal Market with comparable stockholder approval requirements on which the Common Stock may be listed or quoted; provided, however, that the Company shall be permitted to take any action referred to in clause (iii) of this sentence if (a) the Company has timely provided the Investor with an Integration Notice as provided in Section 5.6(ii) hereof and (b) unless the Investor has previously terminated this Agreement pursuant to Section 7.2, the Company obtains any requisite stockholder approval which may be required for the Company to consummate such Other Financing described in such Integration Noticeotherwise.

Exchange Cap. Notwithstanding anything to the contrary contained in this Agreement, subject to Section 2.13 belowherein, the Company shall not issue or sell any shares Ordinary Shares (or ADSs representing Ordinary Shares, including, in both cases, pursuant to the exercise of Common Stock Pre-Funded Warrants) pursuant to this Agreement, and the Investor Purchasers shall not purchase or acquire any shares of Common Stock Ordinary Shares (or ADSs representing Ordinary Shares including, in both cases, pursuant to the exercise of Pre-Funded Warrants) from the Company pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock ADSs that would be issued pursuant to this Agreement and the transactions contemplated hereby would exceed 177,944,443 1,320,616 ADSs, representing 2,641,231,384 Ordinary Shares (such number of shares equal to 19.99% of Common Stock (the Ordinary Shares issued and outstanding immediately prior to the execution of this Agreement), which number of shares shall be (i) reduced, on a share-for-share basis, by the number of shares of Common Stock Ordinary Shares issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of the NYSE MKT The Nasdaq Stock Market and (ii) appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split or any other Trading Market on which the Common Stock may be listed or quoted similar transaction that occurs after the date of this Agreement) Agreement (such maximum number of shares, the “Exchange Cap”), unless and until the Company elects to solicit stockholder obtain shareholder approval of the transactions issuance of Ordinary Shares as contemplated by this Agreement Agreement, and the stockholders shareholders of the Company have in fact approved the transactions issuance of Ordinary Shares as contemplated by this Agreement in accordance with the applicable rules and regulations of The Nasdaq Stock Market in excess of the NYSE MKT, any other Trading Market on which the Common Stock may be listed or quoted after the date of this Agreement, and the Charter and Bylaws of the CompanyExchange Cap. For the avoidance of doubt, the Company may, but shall use its reasonable best efforts to be under no obligation to, request its stockholders shareholders to approve the transactions issuance of Ordinary Shares in excess of the Exchange Cap as contemplated by this Agreement no later than the next annual meeting of the Company’s stockholdersAgreement; provided, that if stockholder shareholder approval is not obtained in accordance with the applicable rules of the NYSE MKT or any other Trading Market with comparable stockholder approval requirements on which the Common Stock may be listed or quoted after the date of this AgreementSection 2.4, the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby hereby, including, without limitation, the issuance of Ordinary Shares and related ADSs in connection with the exercise of Pre-Funded Warrants, at all times during the term of this Agreement (except as set forth in Section 2.13 below). If the Company issues a Fixed Request Notice or Optional Amount that otherwise would permit the Investor to purchase shares of Common Stock which would cause the aggregate purchases by the Investor under this Agreement to exceed the Aggregate Limit, such Fixed Request Notice or Optional Amount shall be void ab initio to the extent of the amount by which the dollar value of shares or number of shares, as the case may be, of Common Stock otherwise issuable pursuant to such Fixed Request Notice or Optional Amount together with the dollar value of shares or number of shares, as the case may be, of all other Common Stock purchased by the Investor pursuant to this Agreement, or issued as partial damages pursuant to Section 9.1(ii), would exceed the Aggregate Limit. The Company hereby represents, warrants and covenants that neither it nor any of its Subsidiaries (i) has effected any transaction or series of transactions, (ii) is a party to any pending transaction or series of transactions or (iii) shall enter into any contract, agreement, agreement-in-principle, arrangement or understanding with respect to, or shall effect, any Other Financing which, in any of such cases, may be aggregated with the transactions contemplated by this Agreement for purposes of determining whether approval of the Company’s stockholders is required under applicable rules of the NYSE MKT or any other Trading Market with comparable stockholder approval requirements on which the Common Stock may be listed or quoted; provided, however, that the Company shall be permitted to take any action referred to in clause (iii) of this sentence if (a) the Company has timely provided the Investor with an Integration Notice as provided in Section 5.6(ii) hereof and (b) unless the Investor has previously terminated this Agreement pursuant to Section 7.2, the Company obtains any requisite stockholder approval which may be required for the Company to consummate such Other Financing described in such Integration Noticetimes.

Exchange Cap. Notwithstanding anything to the contrary contained in this Agreement, subject Subject to Section 2.13 2(e)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock from the Company pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement and the transactions contemplated hereby (including the Commitment Shares issuable upon exercise of the Commitment Warrant) would exceed 177,944,443 1,084,179 (such number of shares equal to 19.99% of the shares of Common Stock (issued and outstanding immediately preceding the execution of this Agreement), which number of shares shall be (i) reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of the NYSE MKT Principal Market and (ii) appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split or any other Trading Market on which the Common Stock may be listed or quoted similar transaction that occurs after the date of this Agreement) ACTIVE 706222346v3 Agreement (such maximum number of shares, the “Exchange Cap”), unless and until the Company elects to solicit obtain stockholder approval of the transactions issuance of Common Stock as contemplated by this Agreement Agreement, and the stockholders of the Company have in fact approved the transactions issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules and regulations of the NYSE MKT, any other Trading Market on which the Common Stock may be listed or quoted after the date of this Agreement, and the Charter and Bylaws of the CompanyPrincipal Market. For the avoidance of doubt, the Company may, but shall use its reasonable best efforts to be under no obligation to, request its stockholders to approve the transactions issuance of Common Stock as contemplated by this Agreement no later than the next annual meeting of the Company’s stockholdersAgreement; provided, that if stockholder approval is not obtained in accordance with the applicable rules of the NYSE MKT or any other Trading Market with comparable stockholder approval requirements on which the Common Stock may be listed or quoted after the date of this AgreementSection 2(e)(i), 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 (except as set forth in Section 2.13 2(e)(ii) below). If the Company issues a Fixed Request Notice or Optional Amount that otherwise would permit the Investor to purchase shares of Common Stock which would cause the aggregate purchases by the Investor under this Agreement to exceed the Aggregate Limit, such Fixed Request Notice or Optional Amount shall be void ab initio to the extent of the amount by which the dollar value of shares or number of shares, as the case may be, of Common Stock otherwise issuable pursuant to such Fixed Request Notice or Optional Amount together with the dollar value of shares or number of shares, as the case may be, of all other Common Stock purchased by the Investor pursuant to this Agreement, or issued as partial damages pursuant to Section 9.1(ii), would exceed the Aggregate Limit. The Company hereby represents, warrants and covenants that neither it nor any of its Subsidiaries (i) has effected any transaction or series of transactions, (ii) is a party to any pending transaction or series of transactions or (iii) shall enter into any contract, agreement, agreement-in-principle, arrangement or understanding with respect to, or shall effect, any Other Financing which, in any of such cases, may be aggregated with the transactions contemplated by this Agreement for purposes of determining whether approval of the Company’s stockholders is required under applicable rules of the NYSE MKT or any other Trading Market with comparable stockholder approval requirements on which the Common Stock may be listed or quoted; provided, however, that the Company shall be permitted to take any action referred to in clause (iii) of this sentence if (a) the Company has timely provided the Investor with an Integration Notice as provided in Section 5.6(ii) hereof and (b) unless the Investor has previously terminated this Agreement pursuant to Section 7.2, the Company obtains any requisite stockholder approval which may be required for the Company to consummate such Other Financing described in such Integration Notice.

Exchange Cap. Notwithstanding anything to the contrary contained in this Agreement, subject to Section 2.13 below, the The Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock Registrable Shares that would be issued pursuant to this Agreement and the transactions contemplated by the Transaction Documents would exceed 177,944,443 8,727,049 shares of Common Stock (representing 19.99% of the voting power or number of shares of Common Stock issued and outstanding immediately prior to the execution of this Agreement), which number of shares shall be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement the Transaction Documents under applicable rules of the NYSE MKT or any other Trading Principal Market on which the Common Stock may be listed or quoted after the date (such maximum number of this Agreement) (shares, the “Exchange Cap”), unless and until the Company elects Company’s stockholders have approved the issuance of Common Stock pursuant to solicit stockholder approval this Agreement in excess of the transactions contemplated by this Agreement and the stockholders of the Company have in fact approved the transactions contemplated by this Agreement Exchange Cap in accordance with the applicable rules and regulations of the NYSE MKT, any other Trading Principal Market on which or such approval is not required in accordance with the Common Stock may be listed or quoted after the date of this Agreement, and the Charter and Bylaws applicable rules of the CompanyPrincipal Market or otherwise. For the avoidance of doubt, the Company may, but shall use its reasonable best efforts to be under no obligation to, request its stockholders to approve the transactions contemplated by issuance of Common Stock pursuant to this Agreement no later than the next annual meeting of the Company’s stockholdersAgreement; provided, that if such stockholder approval is not obtained in accordance with the applicable rules of the NYSE MKT or any other Trading Market with comparable stockholder approval requirements on which the Common Stock may be listed or quoted after the date of this Agreementobtained, the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby by the Transaction Documents at all times during the term of this Agreement (except as set forth in Section 2.13 below3.3(b)). If The Investor shall not have the Company issues a Fixed Request Notice right or Optional Amount that otherwise would permit the Investor to obligation purchase or acquire any shares of Common Stock which would cause the aggregate purchases by the Investor under this Agreement to exceed the Aggregate Limit, such Fixed Request Notice or Optional Amount shall be void ab initio to the extent of the amount by which the dollar value of shares or number of shares, as the case may be, of Common Stock otherwise issuable pursuant to such Fixed Request Notice or Optional Amount together with the dollar value of shares or number of shares, as the case may be, of all other Common Stock purchased by the Investor pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock held by the Investor immediately following such purchase will cause the Investor to have beneficial ownership of more than the number of shares of Common Stock representing 19.99% of the voting power or number of shares of Common Stock issued as partial damages pursuant and outstanding immediately prior to Section 9.1(ii)such purchase, would exceed the Aggregate Limit. The Company hereby represents, warrants and covenants that neither it nor any of its Subsidiaries (i) has effected any transaction or series of transactions, (ii) is a party to any pending transaction or series of transactions or (iii) shall enter into any contract, agreement, agreement-in-principle, arrangement or understanding with respect to, or shall effect, any Other Financing which, in any of such cases, may be aggregated with the transactions contemplated by this Agreement for purposes of determining whether approval of unless the Company’s stockholders is required under have approved such purchase of Common Stock in accordance with the applicable rules of the NYSE MKT Principal Market or any other Trading such approval is not required in accordance with the applicable rules of the Principal Market with comparable stockholder approval requirements on which the Common Stock may be listed or quoted; provided, however, that the Company shall be permitted to take any action referred to in clause (iii) of this sentence if (a) the Company has timely provided the Investor with an Integration Notice as provided in Section 5.6(ii) hereof and (b) unless the Investor has previously terminated this Agreement pursuant to Section 7.2, the Company obtains any requisite stockholder approval which may be required for the Company to consummate such Other Financing described in such Integration Noticeotherwise.

Exchange Cap. Notwithstanding anything to the contrary contained in this Agreement, subject to Section 2.13 below, the The Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock Registrable Shares that would be issued pursuant to this Agreement and the transactions contemplated by the Transaction Documents would exceed 177,944,443 8,727,049 shares of Common Stock (representing 19.99% of the voting power or number of shares of Common Stock issued and outstanding immediately prior to the execution of the Original Agreement), which number of shares shall be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement the Transaction Documents under applicable rules of the NYSE MKT or any other Trading Principal Market on which the Common Stock may be listed or quoted after the date (such maximum number of this Agreement) (shares, the “Exchange Cap”), unless and until the Company elects Company’s stockholders have approved the issuance of Common Stock pursuant to solicit stockholder approval the Original Agreement in excess of the transactions contemplated by this Agreement and the stockholders of the Company have in fact approved the transactions contemplated by this Agreement Exchange Cap in accordance with the applicable rules and regulations of the NYSE MKT, any other Trading Principal Market on which or such approval is not required in accordance with the Common Stock may be listed or quoted after the date of this Agreement, and the Charter and Bylaws applicable rules of the CompanyPrincipal Market or otherwise. For the avoidance of doubt, the Company may, but shall use its reasonable best efforts to be under no obligation to, request its stockholders to approve the transactions contemplated by this Agreement no later than issuance of Common Stock pursuant to the next annual meeting of the Company’s stockholdersOriginal Agreement; provided, that if such stockholder approval is not obtained in accordance with the applicable rules of the NYSE MKT or any other Trading Market with comparable stockholder approval requirements on which the Common Stock may be listed or quoted after the date of this Agreementobtained, the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby by the Transaction Documents at all times during the term of this Agreement (except as set forth in Section 2.13 below3.3(b)). If The Investor shall not have the Company issues a Fixed Request Notice right or Optional Amount that otherwise would permit the Investor obligation to purchase or acquire any shares of Common Stock which would cause the aggregate purchases by the Investor under this Agreement to exceed the Aggregate Limit, such Fixed Request Notice or Optional Amount shall be void ab initio to the extent of the amount by which the dollar value of shares or number of shares, as the case may be, of Common Stock otherwise issuable pursuant to such Fixed Request Notice or Optional Amount together with the dollar value of shares or number of shares, as the case may be, of all other Common Stock purchased by the Investor pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock held by the Investor immediately following such purchase will cause the Investor to have beneficial ownership of more than the number of shares of Common Stock representing 19.99% of the voting power or number of shares of Common Stock issued as partial damages pursuant and outstanding immediately prior to Section 9.1(ii)such purchase, would exceed the Aggregate Limit. The Company hereby represents, warrants and covenants that neither it nor any of its Subsidiaries (i) has effected any transaction or series of transactions, (ii) is a party to any pending transaction or series of transactions or (iii) shall enter into any contract, agreement, agreement-in-principle, arrangement or understanding with respect to, or shall effect, any Other Financing which, in any of such cases, may be aggregated with the transactions contemplated by this Agreement for purposes of determining whether approval of unless the Company’s stockholders is required under have approved such purchase of Common Stock in accordance with the applicable rules of the NYSE MKT Principal Market or any other Trading such approval is not required in accordance with the applicable rules of the Principal Market with comparable stockholder approval requirements on which the Common Stock may be listed or quoted; provided, however, that the Company shall be permitted to take any action referred to in clause (iii) of this sentence if (a) the Company has timely provided the Investor with an Integration Notice as provided in Section 5.6(ii) hereof and (b) unless the Investor has previously terminated this Agreement pursuant to Section 7.2, the Company obtains any requisite stockholder approval which may be required for the Company to consummate such Other Financing described in such Integration Noticeotherwise.

Exchange Cap. Notwithstanding anything to the contrary contained in this Agreement, subject Subject to Section 2.13 2(f)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any DOCPROPERTY "CUS_DocIDChunk0" 4856-0098-9995\3 shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement and the transactions contemplated hereby would exceed 177,944,443 13,100,011 (representing 19.99% of the shares of Common Stock (issued and outstanding immediately prior to the execution of this Agreement), which number of shares shall be (i) reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of the NYSE MKT The Nasdaq Stock Market and (ii) appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split or any other Trading Market on which the Common Stock may be listed or quoted similar transaction that occurs after the date of this Agreement) Agreement (such maximum number of shares, the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the transactions issuance of Common Stock as contemplated by this Agreement Agreement, and the stockholders of the Company have in fact approved the transactions issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules and regulations of the NYSE MKT, any other Trading Market on which the Common The Nasdaq Stock may be listed or quoted after the date of this Agreement, and the Charter and Bylaws of the CompanyMarket. For the avoidance of doubt, the Company may, but shall use its reasonable best efforts to be under no obligation to, request its stockholders to approve the transactions issuance of Common Stock as contemplated by this Agreement no later than the next annual meeting of the Company’s stockholdersAgreement; provided, that if stockholder approval is not obtained in accordance with the applicable rules of the NYSE MKT or any other Trading Market with comparable stockholder approval requirements on which the Common Stock may be listed or quoted after the date of this AgreementSection 2(f)(i), 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 (except as set forth in Section 2.13 2(f)(ii) below). If the Company issues a Fixed Request Notice or Optional Amount that otherwise would permit the Investor to purchase shares of Common Stock which would cause the aggregate purchases by the Investor under this Agreement to exceed the Aggregate Limit, such Fixed Request Notice or Optional Amount shall be void ab initio to the extent of the amount by which the dollar value of shares or number of shares, as the case may be, of Common Stock otherwise issuable pursuant to such Fixed Request Notice or Optional Amount together with the dollar value of shares or number of shares, as the case may be, of all other Common Stock purchased by the Investor pursuant to this Agreement, or issued as partial damages pursuant to Section 9.1(ii), would exceed the Aggregate Limit. The Company hereby represents, warrants and covenants that neither it nor any of its Subsidiaries (i) has effected any transaction or series of transactions, (ii) is a party to any pending transaction or series of transactions or (iii) shall enter into any contract, agreement, agreement-in-principle, arrangement or understanding with respect to, or shall effect, any Other Financing which, in any of such cases, may be aggregated with the transactions contemplated by this Agreement for purposes of determining whether approval of the Company’s stockholders is required under applicable rules of the NYSE MKT or any other Trading Market with comparable stockholder approval requirements on which the Common Stock may be listed or quoted; provided, however, that the Company shall be permitted to take any action referred to in clause (iii) of this sentence if (a) the Company has timely provided the Investor with an Integration Notice as provided in Section 5.6(ii) hereof and (b) unless the Investor has previously terminated this Agreement pursuant to Section 7.2, the Company obtains any requisite stockholder approval which may be required for the Company to consummate such Other Financing described in such Integration Notice.

Exchange Cap. Notwithstanding anything to the contrary contained in this Agreement, subject Subject to Section 2.13 2(e)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement would exceed 177,944,443 the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby (which number of shares shall be reduced, on a share-for-share basis, by the number of taking into account all shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of the NYSE MKT The NASDAQ Stock Market or any other Trading Principal Market on which the Common Stock may be listed or quoted after quoted) without (A) breaching the date Company’s obligations under the applicable rules of this AgreementThe NASDAQ Stock Market or (B) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Market (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the transactions issuance of Common Stock as contemplated by this Agreement and the stockholders of the Company have in fact approved the transactions contemplated by this Agreement such issuance in accordance with the applicable rules and regulations of the NYSE MKT, any other Trading The NASDAQ Stock Market on which the Common Stock may be listed or quoted after the date of this Agreement, and the Charter Certificate of Incorporation and Bylaws of the Company. For the avoidance of doubt, the Company may, but shall use its reasonable best efforts to be under no obligation to, request its stockholders to approve the transactions issuance of Common Stock contemplated by this Agreement no later than the next annual meeting of the Company’s stockholdersAgreement; provided, that if stockholder approval is not obtained in accordance with the applicable rules of the NYSE MKT or any other Trading Market with comparable stockholder approval requirements on which the Common Stock may be listed or quoted after the date of this AgreementSection 2(e)(i), 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 (except as set forth in Section 2.13 2(e)(ii) below). If the Company issues a Fixed Request Notice or Optional Amount that otherwise would permit the Investor to purchase shares of Common Stock which would cause the aggregate purchases by the Investor under this Agreement to exceed the Aggregate Limit, such Fixed Request Notice or Optional Amount shall be void ab initio to the extent of the amount by which the dollar value of shares or number of shares, as the case may be, of Common Stock otherwise issuable pursuant to such Fixed Request Notice or Optional Amount together with the dollar value of shares or number of shares, as the case may be, of all other Common Stock purchased by the Investor pursuant to this Agreement, or issued as partial damages pursuant to Section 9.1(ii), would exceed the Aggregate Limit. The Company hereby represents, warrants and covenants that neither it nor any of its Subsidiaries (i) has effected any transaction or series of transactions, (ii) is a party to any pending transaction or series of transactions or (iii) shall enter into any contract, agreement, agreement-in-principle, arrangement or understanding with respect to, or shall effect, any Other Financing which, in any of such cases, may be aggregated with the transactions contemplated by this Agreement for purposes of determining whether approval of the Company’s stockholders is required under applicable rules of the NYSE MKT or any other Trading Market with comparable stockholder approval requirements on which the Common Stock may be listed or quoted; provided, however, that the Company shall be permitted to take any action referred to in clause (iii) of this sentence if (a) the Company has timely provided the Investor with an Integration Notice as provided in Section 5.6(ii) hereof and (b) unless the Investor has previously terminated this Agreement pursuant to Section 7.2, the Company obtains any requisite stockholder approval which may be required for the Company to consummate such Other Financing described in such Integration Notice.

Exchange Cap. Notwithstanding anything to the contrary contained in this Agreement, subject Subject to Section 2.13 2(f)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement and the transactions contemplated hereby would exceed 177,944,443 be equal to or greater than 5,227,323 shares of Common Stock, representing 19.99% of the shares of Common Stock outstanding on the date of this Agreement (which number of shares shall be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of the NYSE MKT Nasdaq Capital Market or any other Trading Principal Market on which the Common Stock may be listed or quoted after the date of this Agreementquoted) (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the transactions issuance of Common Stock as contemplated by this Agreement and the stockholders of the Company have in fact approved the transactions contemplated by this Agreement such issuance in accordance with the applicable rules and regulations of the NYSE MKTNasdaq Capital Market, any other Trading Principal Market on which the Common Stock may be listed or quoted after the date of this Agreementquoted, and the Charter and Bylaws Company’s Certificate of Incorporation, in effect as of the Execution Date (the “Certificate of Incorporation”), and the Company’s Amended and Restated Bylaws, in effect as of the Execution Date (the “Bylaws”). For the avoidance of doubt, the Company may, but shall use its reasonable best efforts to be under no obligation to, request its stockholders to approve the transactions issuance of Common Stock as contemplated by this Agreement no later than the next annual meeting of the Company’s stockholdersAgreement; provided, that if stockholder approval is not obtained in accordance with the applicable rules of the NYSE MKT or any other Trading Market with comparable stockholder approval requirements on which the Common Stock may be listed or quoted after the date of this AgreementSection 2(f)(i), 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 (except as set forth in Section 2.13 2(f)(ii) below). If the Company issues a Fixed Request Notice or Optional Amount that otherwise would permit the Investor to purchase shares of Common Stock which would cause the aggregate purchases by the Investor under this Agreement to exceed the Aggregate Limit, such Fixed Request Notice or Optional Amount shall be void ab initio to the extent of the amount by which the dollar value of shares or number of shares, as the case may be, of Common Stock otherwise issuable pursuant to such Fixed Request Notice or Optional Amount together with the dollar value of shares or number of shares, as the case may be, of all other Common Stock purchased by the Investor pursuant to this Agreement, or issued as partial damages pursuant to Section 9.1(ii), would exceed the Aggregate Limit. The Company hereby represents, warrants and covenants that neither it nor any of its Subsidiaries (i) has effected any transaction or series of transactions, (ii) is a party to any pending transaction or series of transactions or (iii) shall enter into any contract, agreement, agreement-in-principle, arrangement or understanding with respect to, or shall effect, any Other Financing which, in any of such cases, may be aggregated with the transactions contemplated by this Agreement for purposes of determining whether approval of the Company’s stockholders is required under applicable rules of the NYSE MKT or any other Trading Market with comparable stockholder approval requirements on which the Common Stock may be listed or quoted; provided, however, that the Company shall be permitted to take any action referred to in clause (iii) of this sentence if (a) the Company has timely provided the Investor with an Integration Notice as provided in Section 5.6(ii) hereof and (b) unless the Investor has previously terminated this Agreement pursuant to Section 7.2, the Company obtains any requisite stockholder approval which may be required for the Company to consummate such Other Financing described in such Integration Notice.

Exchange Cap. Notwithstanding anything to Unless the contrary contained Parent first obtains shareholder approval in this Agreementaccordance with sections 604(a) and 607(g) of the TSX Company Manual, subject to Section 2.13 belowas applicable, in no circumstances shall the Company shall not Parent issue or sell any shares Common Shares upon the exchange of Common Stock pursuant to this AgreementPreferred Shares, and the Investor Investors (either individually or in the aggregate, as the case may be) shall not purchase have the right to effect an exchange of Preferred Shares or acquire any shares receive Common Shares upon conversion of Common Stock pursuant to this AgreementPreferred Shares, to the extent that the issuance of such Common Shares pursuant to such exchange would (i) in respect of issuances to any Investor (including any Person acting in combination or in concert with such Investor) (any Investor and any such Persons are referred to herein as an "Investor Group"), result in such Investor Group holding 19.9% or more of the issued and outstanding number of Common Shares (including, for greater certainty, securities held by the Investors prior to the date hereof)immediately after giving effect theretoto such exchange; and (ii) in respect to all issuances hereunder in the aggregate, result in the aggregate issuance of 63,000,000 or more Common Shares (representing a maximum of 25% of the issued and outstanding number of shares Common Shares calculated as of immediately prior to the execution of this Agreement; provided, however, that such maximum number of Common Stock that would Shares is to be issued pursuant to this Agreement would exceed 177,944,443 shares of Common Stock (which number of shares shall be reducedadjusted for any stock dividend, on a share-for-share basisstock split, by the number of shares of Common Stock issued stock combination, reclassification or issuable pursuant to any similar transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under 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 Agreementhereof) (the “percentage set forth in clause (i) or (ii), as applicable, the "Exchange Cap”"), unless and until the Company elects to solicit stockholder approval of the transactions contemplated by this Agreement and the stockholders of the Company have in fact approved the transactions contemplated by this Agreement in accordance with the applicable rules and regulations of the NYSE MKT, any other Trading Market on which the Common Stock may be listed or quoted after the date of this Agreement, and the Charter and Bylaws of the Company. For the avoidance of doubt, the Company shall use its reasonable best efforts to request its stockholders to approve the transactions contemplated by this Agreement no later than the next annual meeting any issuances that are made in contravention of the Company’s stockholders; provided, that if stockholder approval is not obtained in accordance with the applicable rules of the NYSE MKT or any other Trading Market with comparable stockholder approval requirements on which the Common Stock may be listed or quoted after the date of this Agreement, the foregoing Exchange Cap shall be applicable for deemed void ab initio. For greater certainty, upon receipt of any such shareholder approval by Parent, the foregoing limitations shall not apply and Parent shall thereafter be required to issue all purposes of this Agreement and such Common Shares as are issuable pursuant to the transactions contemplated hereby at all times during the term of this Agreement (except as terms set forth in Section 2.13 belowthis Agreement. Until any such requisite approval is obtained, no Investor shall be issued in the aggregate, upon exchange of Preferred Shares, Common Shares in an amount greater than the product of the Exchange Cap multiplied by a fraction, the numerator of which is the number of Preferred Shares issued to such Investor pursuant to this Agreement on the Closing Date and the denominator of which is the aggregate number of all Preferred Shares issued to the Investors pursuant to this Agreement on the Closing Date (with respect to each such Investor, the "Exchange Cap Allocation"). If In the Company issues event that any Investor shall sell or otherwise transfer any of such Investor's Preferred Shares, the transferee shall be allocated a Fixed Request Notice or Optional Amount pro rata portion of such Investor'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 otherwise would permit any Investor shall exchange all of such Investor's Preferred Shares into a number of shares of Common Shares which, in the aggregate, is less than such Investor's Exchange Cap Allocation, then the difference between such Investor's Exchange Cap Allocation and the number of Common Shares actually issued to such Investor shall be allocated to purchase the respective Exchange Cap Allocations of the remaining Investors on a pro rata basis in proportion to the shares of Common Stock which would cause underlying the aggregate purchases Preferred Shares then held by the Investor under this Agreement to exceed the Aggregate Limit, each such Fixed Request Notice or Optional Amount shall be void ab initio to the extent of the amount by which the dollar value of shares or number of shares, as the case may be, of Common Stock otherwise issuable pursuant to such Fixed Request Notice or Optional Amount together with the dollar value of shares or number of shares, as the case may be, of all other Common Stock purchased by the Investor pursuant to this Agreement, or issued as partial damages pursuant to Section 9.1(ii), would exceed the Aggregate Limit. The Company hereby represents, warrants and covenants that neither it nor any of its Subsidiaries (i) has effected any transaction or series of transactions, (ii) is a party to any pending transaction or series of transactions or (iii) shall enter into any contract, agreement, agreement-in-principle, arrangement or understanding with respect to, or shall effect, any Other Financing which, in any of such cases, may be aggregated with the transactions contemplated by this Agreement for purposes of determining whether approval of the Company’s stockholders is required under applicable rules of the NYSE MKT or any other Trading Market with comparable stockholder approval requirements on which the Common Stock may be listed or quoted; provided, however, that the Company shall be permitted to take any action referred to in clause (iii) of this sentence if (a) the Company has timely provided the Investor with an Integration Notice as provided in Section 5.6(ii) hereof and (b) unless the Investor has previously terminated this Agreement pursuant to Section 7.2, the Company obtains any requisite stockholder approval which may be required for the Company to consummate such Other Financing described in such Integration NoticeInvestor.