Common use of Cap Amount Clause in Contracts

Cap Amount. If the Company is prohibited by Rule 4350(i) of the National Association of Securities Dealers, Inc. (“NASD”), or any successor or similar rule, or the rules or regulations of any other securities exchange on which the Common Stock is then listed or traded, from issuing a number of shares of Common Stock upon exercise of this Warrant (together with any shares of Common Stock issued pursuant to other securities issued pursuant to the 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 or otherwise), then the Company shall not issue shares upon any such exercise in excess of the Cap Amount. Assuming solely for purposes of this Section 9(a) that such Rule 4350(i) or similar rule is applicable, the Cap Amount shall be 19.99% of the Common Stock outstanding immediately prior to the date hereof. The Cap Amount shall be allocated pro rata to the 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 issuable upon exercise of this Warrant in full. If the Company fails to redeem such portion of this Warrant within five business days after its receipt of such Redemption Notice, then the holder hereof shall be entitled to interest on the Redemption Amount at a 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 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” equals (i) the value of that portion of the 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 equals 60% and the risk-free interest rate equals 3% per annum, multiplied by (ii) 105%.

Cap Amount. If the Company is prohibited by Rule 4350(i) of the National Association of Securities Dealers, Inc. (“"NASD”"), or any successor or similar rule, or the rules or regulations of any other securities exchange on which the Common Stock is then listed or traded, from issuing a number of shares of Common Stock upon exercise of this Warrant (together with any shares of Common Stock issued pursuant to other securities issued pursuant to the Securities Purchase Agreement, the Additional Warrants or other agreements entered in connection therewith) in excess of a prescribed amount (the “Cap Amount”"CAP AMOUNT") (without stockholder approval or otherwise), then the Company shall not issue shares upon any such exercise in excess of the Cap Amount. Assuming solely for purposes of this Section 9(a) that such Rule 4350(i) or similar rule is applicable, the Cap Amount shall be 19.99% of the Common Stock outstanding immediately prior to the date hereof. The Cap Amount shall be allocated pro rata to the 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”"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 's Cap Amount is at least equal to one hundred percent (100%) of the total number of shares of Common Stock issuable upon exercise of this Warrant in full. If the Company fails to redeem such portion of this Warrant within five business days after its receipt of such Redemption Notice, then the holder hereof shall be entitled to interest on the Redemption Amount at a 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 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” "REDEMPTION AMOUNT" equals (i) the value of that portion of the 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 's Common Stock equals 60% and the risk-free interest rate equals 3% per annum, multiplied by (ii) 105%.

Cap Amount. If (a) Prior to the Company is prohibited by Rule 4350(iearlier of Nasdaq Approval (as defined in the Securities Purchase Agreement) of or the National Association of 4460 Shareholder Approval (as defined in the Securities Dealers, Inc. (“NASD”Purchase Agreement), unless otherwise permitted by The Nasdaq National Market or any successor or similar rule, or unless the rules or regulations of any other securities exchange on which thereof no longer are applicable to the Common Stock is then listed or tradedCompany, from issuing a 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 this Warrant (together with any the Warrants exceed the maximum number of shares of Common Stock issued that the Company can without stockholder approval so issue pursuant to other securities issued pursuant to Nasdaq Rule 4460(i) (or any successor rule) (the "Cap Amount") upon Closing under the Securities Purchase Agreement, Agreement and the Additional Warrants or other agreements entered in connection therewith) in excess of a prescribed amount (the “Cap Amount”) (without stockholder approval or otherwise), then the Company shall not issue shares upon any such exercise in excess of the Cap Amount. Assuming solely for purposes of this Section 9(a) that such Rule 4350(i) or similar rule is applicableWarrants, the Cap Amount shall be 19.99% which, as of the date of initial issuance of Common Stock outstanding immediately prior and Warrants to the date hereofHolders, 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 to among the holders of Warrants (and Holders based on 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 issuable upon exercise and Warrants issued to each Holder. In the event a Holder shall sell or otherwise transfer any of this Warrant in full. If the Company fails to redeem such Holder's Warrants, each transferee shall be allocated a pro rata portion of this Warrant within five business days after its receipt of such Redemption Notice, then the holder hereof shall be entitled to interest on the Redemption Amount at a 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 Redemption Amount is required to be paid hereunder until the actual date of payment of the Redemption Amount hereundertransferorSections Cap Amount. For purposes of this Section 9(a), the “Redemption Amount” equals (i) the value of that A HolderSections allocable portion of the Warrant being so redeemed derived using Cap Amount shall be allocated first to the Black-Scholes formula Common Stock issued to the Holder at the Closing under the Securities Purchase Agreement, then to the First Warrants (using Bloombergas 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 of defined in the date on which Securities Purchase Agreement) or the holder gives 4310 Shareholder Approval (as defined in the Redemption NoticeSecurities Purchase Agreement), assuming unless otherwise permitted by The Nasdaq National Market or unless the volatility of rules thereof no longer are applicable to the Company’s Common Stock equals 60% and the risk-free interest rate equals 3% per annum, multiplied by (ii) 105%in no event shall this Warrant be exercisable.

Cap Amount. If (a) Prior to Nasdaq Approval (as defined in the Company is prohibited by Rule 4350(iSecurities Purchase Agreement) of or the National Association of 4460 Shareholder Approval (as defined in the Securities Dealers, Inc. (“NASD”Purchase Agreement), unless otherwise permitted by The Nasdaq National Market or any successor or similar rule, or unless the rules or regulations of any other securities exchange on which thereof no longer are applicable to the Common Stock is then listed or tradedCompany, from issuing a 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 this Warrant (together with any the Warrants exceed the maximum number of shares of Common Stock issued that the Company can without stockholder approval so issue pursuant to other securities issued pursuant to Nasdaq Rule 4460(i) (or any successor rule) (the "Cap Amount") upon Closing under the Securities Purchase Agreement, Agreement and the Additional Warrants or other agreements entered in connection therewith) in excess of a prescribed amount (the “Cap Amount”) (without stockholder approval or otherwise), then the Company shall not issue shares upon any such exercise in excess of the Cap Amount. Assuming solely for purposes of this Section 9(a) that such Rule 4350(i) or similar rule is applicableWarrants, the Cap Amount shall be 19.99% which, as of the date of initial issuance of Common Stock outstanding immediately prior and Warrants to the date hereofHolders, 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 to among the holders of Warrants (and Holders based on 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 issuable upon exercise and Warrants issued to each Holder. In the event a Holder shall sell or otherwise transfer any of this Warrant in full. If the Company fails to redeem such Holder's Warrants, each transferee shall be allocated a pro rata portion of this Warrant within five business days after its receipt of such Redemption Notice, then the holder hereof shall be entitled to interest on the Redemption Amount at a 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 Redemption Amount is required to be paid hereunder until the actual date of payment of the Redemption Amount hereundertransferor's Cap Amount. For purposes of this Section 9(a), the “Redemption Amount” equals (i) the value of that A Holder's allocable portion of the Warrant being so redeemed derived using Cap Amount shall be allocated first to the Black-Scholes formula Common Stock issued to the Holder at the Closing under the Securities Purchase Agreement, then to the First Warrants (using Bloombergas 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 of defined in the date on which Securities Purchase Agreement) or the holder gives 4310 Shareholder Approval (as defined in the Redemption NoticeSecurities Purchase Agreement), assuming unless otherwise permitted by The Nasdaq National Market or unless the volatility of rules thereof no longer are applicable to the Company’s Common Stock equals 60% and the risk-free interest rate equals 3% per annum, multiplied by (ii) 105%in no event shall this Warrant be exercisable.