Common use of Cap Amount Clause in Contracts

Cap Amount. (a) Prior to the earlier of Nasdaq Approval (as defined in the Securities Purchase Agreement) or the 4460 Shareholder Approval (as defined in the Securities Purchase Agreement), unless otherwise permitted by The Nasdaq National Market or unless the rules thereof no longer are applicable to the Company, in no event shall the total number of shares of Common Stock issued at the Closing under the Securities Purchase Agreement and upon exercise of the Warrants exceed the maximum number of shares of Common Stock that the Company can without stockholder approval so issue pursuant to Nasdaq Rule 4460(i) (or any successor rule) (the "Cap Amount") upon Closing under the Securities Purchase Agreement and the exercise of the Warrants, which, as of the date of initial issuance of Common Stock and Warrants to the Holders, which amount is one million, two hundred thirty two thousand and forty five (1,232,045) shares. The Cap Amount shall be allocated pro rata among the Holders based on the number of shares of Common Stock and Warrants issued to each Holder. In the event a Holder shall sell or otherwise transfer any of such Holder's Warrants, each transferee shall be allocated a pro rata portion of such transferorSections Cap Amount. A HolderSections allocable portion of the Cap Amount shall be allocated first to the Common Stock issued to the Holder at the Closing under the Securities Purchase Agreement, then to the First Warrants (as defined in the Securities Purchase Agreement) and only the Warrants shall be subject to the limitation imposed by this Section 5(a). (b) Prior to the earlier of Second Nasdaq Approval (as defined in the Securities Purchase Agreement) or the 4310 Shareholder Approval (as defined in the Securities Purchase Agreement), unless otherwise permitted by The Nasdaq National Market or unless the rules thereof no longer are applicable to the Company, in no event shall this Warrant be exercisable.

Cap Amount. If the Company is prohibited by Rule 4350(i) of the National Association of Securities Dealers, Inc. (a) Prior to the earlier of Nasdaq Approval (as defined in the Securities Purchase Agreement) "NASD"), or any successor or similar rule, or the 4460 Shareholder Approval (as defined in rules or regulations of any other securities exchange on which the Securities Purchase Agreement)Common Stock is then listed or traded, unless otherwise permitted by The Nasdaq National Market or unless the rules thereof no longer are applicable to the Company, in no event shall the total from issuing a number of shares of Common Stock issued at the Closing under the Securities Purchase Agreement and upon exercise of the Warrants exceed the maximum number of this Warrant (together with any shares of Common Stock that issued pursuant to other securities issued pursuant to the Company can Securities Purchase Agreement, the Additional Warrants or other agreements entered in connection therewith) in excess of a prescribed amount (the "CAP AMOUNT") (without stockholder approval so or otherwise), then the Company shall not issue pursuant to Nasdaq Rule 4460(i) (or shares upon any successor rule) (such exercise in excess of the "Cap Amount". Assuming solely for purposes of this Section 9(a) upon Closing under that such Rule 4350(i) or similar rule is applicable, the Securities Purchase Agreement and the exercise Cap Amount shall be 19.99% of the Warrants, which, as of Common Stock outstanding immediately prior to the date of initial issuance of Common Stock and Warrants to the Holders, which amount is one million, two hundred thirty two thousand and forty five (1,232,045) shareshereof. The Cap Amount shall be allocated pro rata among to the Holders based on holders of Warrants (and the holders of such other securities issued pursuant to the Securities Purchase Agreement, the Additional Warrants or other agreements entered in connection therewith) as provided in Section 12(h). In the event that the Company is prohibited from issuing shares of Common Stock upon any exercise of this Warrant as a result of the operation of this Section 9(a), the Company shall immediately notify the holder hereof of such occurrence and the holder shall thereafter have the option, exercisable in whole or in part at any time and from time to time, by delivery of written notice to such effect (a "REDEMPTION NOTICE") to the Company, to require the Company to redeem for cash, at an amount per share equal to the Redemption Amount (as defined below), a portion of this Warrant such that, after giving effect to such redemption, the then unissued portion of the holder's Cap Amount is at least equal to one hundred percent (100%) of the total number of shares of Common Stock and Warrants issued issuable upon exercise of this Warrant in full. If the Company fails to each Holder. In the event a Holder shall sell or otherwise transfer any redeem such portion of this Warrant within five business days after its receipt of such Holder's WarrantsRedemption Notice, each transferee then the holder hereof shall be allocated entitled to interest on the Redemption Amount at a pro rata portion per annum rate equal to the lower of twenty-four percent (24%) and the highest interest rate permitted by applicable law from the date on which such transferorSections Cap AmountRedemption Amount is required to be paid hereunder until the actual date of payment of the Redemption Amount hereunder. A HolderSections allocable For purposes of this Section 9(a), the "REDEMPTION AMOUNT" equals (i) the value of that portion of the Cap Amount shall be allocated first to Warrant being so redeemed derived using the Black-Scholes formula (using Bloomberg) as of the date on which the holder gives the Redemption Notice, assuming the volatility of the Company's Common Stock issued to equals 60% and the Holder at the Closing under the Securities Purchase Agreementrisk-free interest rate equals 3% per annum, then to the First Warrants multiplied by (as defined in the Securities Purchase Agreementii) and only the Warrants shall be subject to the limitation imposed by this Section 5(a)105%. (b) Prior to the earlier of Second Nasdaq Approval (as defined in the Securities Purchase Agreement) or the 4310 Shareholder Approval (as defined in the Securities Purchase Agreement), unless otherwise permitted by The Nasdaq National Market or unless the rules thereof no longer are applicable to the Company, in no event shall this Warrant be exercisable.

Cap Amount. If the Company is prohibited by Rule 4350(i) of the National Association of Securities Dealers, Inc. (a) Prior to the earlier of Nasdaq Approval (as defined in the Securities Purchase Agreement) “NASD”), or any successor or similar rule, or the 4460 Shareholder Approval (as defined in rules or regulations of any other securities exchange on which the Securities Purchase Agreement)Common Stock is then listed or traded, unless otherwise permitted by The Nasdaq National Market or unless the rules thereof no longer are applicable to the Company, in no event shall the total from issuing a number of shares of Common Stock issued at the Closing under the Securities Purchase Agreement and upon exercise of the Warrants exceed the maximum number of this Warrant (together with any shares of Common Stock that issued pursuant to other securities issued pursuant to the Company can Securities Purchase Agreement, the Additional Warrants or other agreements entered in connection therewith) in excess of a prescribed amount (the “Cap Amount”) (without stockholder approval so or otherwise), then the Company shall not issue pursuant to Nasdaq Rule 4460(i) (or shares upon any successor rule) (such exercise in excess of the "Cap Amount". Assuming solely for purposes of this Section 9(a) upon Closing under that such Rule 4350(i) or similar rule is applicable, the Securities Purchase Agreement and the exercise Cap Amount shall be 19.99% of the Warrants, which, as of Common Stock outstanding immediately prior to the date of initial issuance of Common Stock and Warrants to the Holders, which amount is one million, two hundred thirty two thousand and forty five (1,232,045) shareshereof. The Cap Amount shall be allocated pro rata among to the Holders based on holders of Warrants (and the holders of such other securities issued pursuant to the Securities Purchase Agreement, the Additional Warrants or other agreements entered in connection therewith) as provided in Section 12(h). In the event that the Company is prohibited from issuing shares of Common Stock upon any exercise of this Warrant as a result of the operation of this Section 9(a), the Company shall immediately notify the holder hereof of such occurrence and the holder shall thereafter have the option, exercisable in whole or in part at any time and from time to time, by delivery of written notice to such effect (a “Redemption Notice”) to the Company, to require the Company to redeem for cash, at an amount per share equal to the Redemption Amount (as defined below), a portion of this Warrant such that, after giving effect to such redemption, the then unissued portion of the holder’s Cap Amount is at least equal to one hundred percent (100%) of the total number of shares of Common Stock and Warrants issued issuable upon exercise of this Warrant in full. If the Company fails to each Holder. In the event a Holder shall sell or otherwise transfer any redeem such portion of this Warrant within five business days after its receipt of such Holder's WarrantsRedemption Notice, each transferee then the holder hereof shall be allocated entitled to interest on the Redemption Amount at a pro rata portion per annum rate equal to the lower of twenty-four percent (24%) and the highest interest rate permitted by applicable law from the date on which such transferorSections Cap Redemption Amount is required to be paid hereunder until the actual date of payment of the Redemption Amount hereunder. For purposes of this Section 9(a), the “Redemption Amount. A HolderSections allocable ” equals (i) the value of that portion of the Cap Amount shall be allocated first to Warrant being so redeemed derived using the Black-Scholes formula (using Bloomberg) as of the date on which the holder gives the Redemption Notice, assuming the volatility of the Company’s Common Stock issued to equals 60% and the Holder at the Closing under the Securities Purchase Agreementrisk-free interest rate equals 3% per annum, then to the First Warrants multiplied by (as defined in the Securities Purchase Agreementii) and only the Warrants shall be subject to the limitation imposed by this Section 5(a)105%. (b) Prior to the earlier of Second Nasdaq Approval (as defined in the Securities Purchase Agreement) or the 4310 Shareholder Approval (as defined in the Securities Purchase Agreement), unless otherwise permitted by The Nasdaq National Market or unless the rules thereof no longer are applicable to the Company, in no event shall this Warrant be exercisable.

Cap Amount. (a) Prior to the earlier of Nasdaq Approval (as defined in the Securities Purchase Agreement) or the 4460 Shareholder Approval (as defined in the Securities Purchase Agreement), unless otherwise permitted by The Nasdaq National Market or unless the rules thereof no longer are applicable to the Company, in no event shall the total number of shares of Common Stock issued at the Closing under the Securities Purchase Agreement and upon exercise of the Warrants exceed the maximum number of shares of Common Stock that the Company can without stockholder approval so issue pursuant to Nasdaq Rule 4460(i) (or any successor rule) (the "Cap Amount") upon Closing under the Securities Purchase Agreement and the exercise of the Warrants, which, as of the date of initial issuance of Common Stock and Warrants to the Holders, which amount is one million, two hundred thirty two thousand and forty five (1,232,045) shares. The Cap Amount shall be allocated pro rata among the Holders based on the number of shares of Common Stock and Warrants issued to each Holder. In the event a Holder shall sell or otherwise transfer any of such Holder's Warrants, each transferee shall be allocated a pro rata portion of such transferorSections transferor's Cap Amount. A HolderSections Holder's allocable portion of the Cap Amount shall be allocated first to the Common Stock issued to the Holder at the Closing under the Securities Purchase Agreement, then to the First Warrants (as defined in the Securities Purchase Agreement) and only the Warrants shall be subject to the limitation imposed by this Section 5(a). (b) Prior to the earlier of Second Nasdaq Approval (as defined in the Securities Purchase Agreement) or the 4310 Shareholder Approval (as defined in the Securities Purchase Agreement), unless otherwise permitted by The Nasdaq National Market or unless the rules thereof no longer are applicable to the Company, in no event shall this Warrant be exercisable.