Common use of Compliance with Registration Statement Eligibility Requirements and Rules of Principal Market Clause in Contracts

Compliance with Registration Statement Eligibility Requirements and Rules of Principal Market. (i) Maximum Share Cap. Subject to Section 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 the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby and thereby (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 NASDAQ Stock Market) without (A) breaching the Company’s obligations under the applicable rules of The 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 issuance of Common Stock pursuant to this Agreement and the stockholders of the Company have in fact approved such issuance in accordance with the applicable rules and regulations of The NASDAQ Stock Market and the Certificate of Incorporation and Bylaws of the Company, or (C) if for so long as the Company is subject to the limitations set forth in General Instruction I.B.6. of Form S-3 and the Staff Interpretations, the maximum number of shares of Common Stock that the Company may issue pursuant to 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 Staff Interpretations (the “Registration Statement Eligibility Cap”). For all purposes of this Agreement, the term “Maximum Share Cap” shall mean the lesser of (i) the Exchange Cap, to the extent applicable to the transactions contemplated by this Agreement, and (ii) the Registration Statement Eligibility Cap, to the extent applicable to the transactions contemplated by this Agreement. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock pursuant to this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(e)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby and thereby at all times during the term of this Agreement (except as set forth in Section 2(e)(ii) below).

Compliance with Registration Statement Eligibility Requirements and Rules of Principal Market. (i) Maximum Share Cap. Subject to Section 2(e)(ii) 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, thereto the aggregate number of all shares of Common Stock that would be issued pursuant to this Purchase Agreement would exceed the maximum number of 8,483,698 shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby and thereby (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 NASDAQ Stock Market) without (A) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Market or (B) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Market (the “Exchange Maximum Share Cap”), unless and until representing the Company elects to solicit stockholder approval lesser of the issuance of Common Stock pursuant to this Agreement and the stockholders of the Company have in fact approved such issuance in accordance with the applicable rules and regulations of The NASDAQ Stock Market and the Certificate of Incorporation and Bylaws of the Company, or (Ci) if for so long as the Company is subject to the limitations set forth in General Instruction I.B.6. of Form S-3 and the Staff Interpretations, the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby without exceeding causing the Company to exceed the limitations set forth in General Instruction I.B.6. of Form S-3 and the Staff interpretations of the SEC’s staff set forth in response to questions 139.23 and 139.24 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 CapRequirements”). For all purposes of this Agreement, the term “Maximum Share Cap” shall mean the lesser of (i) the Exchange Cap, to the extent applicable to the transactions contemplated by this Agreement, and (ii) 19.99% of the Registration Statement Eligibility Cap, to the extent applicable to the transactions contemplated by this Agreement. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance 47,423,513 outstanding shares of Common Stock on the date of this Agreement (representing the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(e)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby without (a) breaching the Company’s obligations under the rules and thereby at all times during regulations of the term Nasdaq Stock Market or the Principal Market or (b) obtaining stockholder approval under the applicable rules and regulations of this Agreement (except as set forth in Section 2(e)(ii) belowthe Nasdaq Stock Market or the Principal Market). Neither the Available Amount nor the Maximum Share Cap may be waived by the parties.

Compliance with Registration Statement Eligibility Requirements and Rules of Principal Market. (i) Maximum Share Cap. Subject to Section 2(e)(ii2(d)(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 the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby and thereby (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 NASDAQ Stock Market) without (A) breaching the Company’s obligations under the applicable rules of The 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 issuance of Common Stock pursuant to this Agreement and the stockholders of the Company have in fact approved such issuance in accordance with the applicable rules and regulations of The NASDAQ Stock Market and the Certificate of Incorporation and Bylaws of the Company, or (C) if for so long as the Company is subject to the limitations set forth in General Instruction I.B.6. I.B.6 of Form S-3 and the Staff Interpretations, the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby without exceeding the limitations set forth in General Instruction I.B.6. I.B.6 of Form S-3 and the Staff Interpretations (the “Registration Statement Eligibility Cap”). For all purposes of this Agreement, the term “Maximum Share Cap” shall mean the lesser of (i) the Exchange Cap, to the extent applicable to the transactions contemplated by this Agreement, and (ii) the Registration Statement Eligibility Cap, to the extent applicable to the transactions contemplated by this Agreement. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock pursuant to this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(e)(i2(d)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby and thereby at all times during the term of this Agreement (except as set forth in Section 2(e)(ii2(d)(ii) below).

Compliance with Registration Statement Eligibility Requirements and Rules of Principal Market. (i) Maximum Share Cap. Subject to Section 2(e)(ii2(d)(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 the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby and thereby (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 NASDAQ Stock Market) without (A) breaching the Company’s obligations under the applicable rules of The 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 issuance of Common Stock pursuant to as contemplated by this Agreement and the stockholders of the Company have in fact approved such issuance in accordance with the applicable rules and regulations of The NASDAQ Stock Market and the Certificate of Incorporation and Bylaws of the Company, or (C) if for so long as the Company is subject to the limitations set forth in General Instruction I.B.6. I.B.6 of Form S-3 and the Staff Interpretations, the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby without exceeding the limitations set forth in General Instruction I.B.6. I.B.6 of Form S-3 and the Staff Interpretations (the “Registration Statement Eligibility Cap”). For all purposes of this Agreement, the term “Maximum Share Cap” shall mean the lesser of (i) the Exchange Cap, to the extent applicable to the transactions contemplated by this Agreement, and (ii) the Registration Statement Eligibility Cap, to the extent applicable to the transactions contemplated by this Agreement. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock pursuant to contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(e)(i2(d)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby and thereby at all times during the term of this Agreement (except as set forth in Section 2(e)(ii2(d)(ii) below).

Compliance with Registration Statement Eligibility Requirements and Rules of Principal Market. (i) Maximum Share Cap. Subject to Section 2(e)(ii) 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, thereto the aggregate number of all shares of Common Stock that would be issued pursuant to this Purchase Agreement would exceed the maximum number of 7,817,621 shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby and thereby (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 NASDAQ Stock Market) without (A) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Market or (B) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Market (the “Exchange Maximum Share Cap”), unless and until representing the Company elects to solicit stockholder approval lesser of the issuance of Common Stock pursuant to this Agreement and the stockholders of the Company have in fact approved such issuance in accordance with the applicable rules and regulations of The NASDAQ Stock Market and the Certificate of Incorporation and Bylaws of the Company, or (Ci) if for so long as the Company is subject to the limitations set forth in General Instruction I.B.6. of Form S-3 and the Staff Interpretations, the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby without exceeding causing the Company to exceed the limitations set forth in General Instruction I.B.6. of Form S-3 and the Staff interpretations of the SEC’s staff set forth in response to questions 139.23 and 139.24 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 CapRequirements”). For all purposes of this Agreement, the term “Maximum Share Cap” shall mean the lesser of (i) the Exchange Cap, to the extent applicable to the transactions contemplated by this Agreement, and (ii) 19.99% of the Registration Statement Eligibility Cap, to the extent applicable to the transactions contemplated by this Agreement. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance 47,443,513 outstanding shares of Common Stock on the date of this Agreement (representing the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(e)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby without (a) breaching the Company’s obligations under the rules and thereby at all times during regulations of the term Nasdaq Stock Market or the Principal Market or (b) obtaining stockholder approval under the applicable rules and regulations of this Agreement (except as set forth in Section 2(e)(ii) belowthe Nasdaq Stock Market or the Principal Market). Neither the Available Amount nor the Maximum Share Cap may be waived by the parties.

Compliance with Registration Statement Eligibility Requirements and Rules of Principal Market. (i) Maximum Share Cap. Subject to Section 2(e)(ii) 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 that would be issued pursuant to this Agreement would exceed the maximum number of lesser of: (A) subject to Section 2(e)(ii) below, 8,500,000 shares of Common Stock that (which number shall be reduced, on a share-for-share basis, by the Company may issue pursuant to this Agreement and the transactions contemplated hereby and thereby (taking into account all 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 NASDAQ the NYSE Amex or any other Principal Market on which the Common Stock Marketmay be listed or quoted) without (A) breaching the Company’s obligations under the applicable rules of The 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 issuance of Common Stock pursuant to transactions contemplated by this Agreement and the stockholders of the Company have in fact approved such issuance the transactions contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ the NYSE Amex, any other Principal Market on which the Common Stock Market may be listed or quoted, and the Certificate Articles of Incorporation and Bylaws of the Company, or ; and (CB) if for so long as the Company is subject to the limitations set forth in General Instruction I.B.6. of Form S-3 and the Staff Interpretations, the maximum number of shares of Common Stock that the Company may issue pursuant to 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 Staff Interpretations (the “Registration Statement Eligibility Cap”). For all purposes of this Agreement, the term “Maximum Share Cap” shall mean the lesser of (i) the Exchange Cap, to the extent applicable to the transactions contemplated by this Agreement, and (ii) the Registration Statement Eligibility Cap, to the extent applicable to the transactions contemplated by this Agreement. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock pursuant to transactions contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(e)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby and thereby at all times during the term of this Agreement (except as set forth in Section 2(e)(ii) below).

Compliance with Registration Statement Eligibility Requirements and Rules of Principal Market. (i) Maximum Share Cap. Subject to Section 2(e)(ii) 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 that would be issued pursuant to this Agreement would exceed the lesser of: (A) subject to Section 2(e)(ii) below, the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby and thereby (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 NASDAQ Stock Market) without (A1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Market or (B2) 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 issuance of Common Stock pursuant to as contemplated by this Agreement and the stockholders of the Company have in fact approved such issuance in accordance with the applicable rules and regulations of The NASDAQ Stock Market Market, and the Certificate of Incorporation and Bylaws of the Company, or ; and (CB) if for so long as the Company is subject to the limitations set forth in General Instruction I.B.6. of Form S-3 and the Staff Interpretations, the maximum number of shares of Common Stock that the Company may issue pursuant to 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 Staff Interpretations (the “Registration Statement Eligibility Cap”). For all purposes of this Agreement, the term “Maximum Share Cap” shall mean the lesser of (i) the Exchange Cap, to the extent applicable to the transactions contemplated by this Agreement, and (ii) the Registration Statement Eligibility Cap, to the extent applicable to the transactions contemplated by this Agreement. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock pursuant to as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(e)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby and thereby at all times during the term of this Agreement (except as set forth in Section 2(e)(ii) below).

Compliance with Registration Statement Eligibility Requirements and Rules of Principal Market. (i) Maximum Share Cap. Subject to Section 2(e)(ii) 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 that would be issued pursuant to this Agreement would exceed the lesser of: (A) subject to Section 2(e)(ii) below, the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby and thereby (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 NASDAQ Stock Market) without (A1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Market or (B2) 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 issuance of Common Stock pursuant to transactions contemplated by this Agreement and the stockholders of the Company have in fact approved such issuance the transactions contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ Stock Market Market, and the Certificate of Incorporation and Bylaws of the Company, or ; and (CB) if for so long as the Company is subject to the limitations set forth in General Instruction I.B.6. of Form S-3 and the Staff Interpretations, the maximum number of shares of Common Stock that the Company may issue pursuant to 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 Staff Interpretations (the “Registration Statement Eligibility Cap”). For all purposes of this Agreement, the term “Maximum Share Cap” shall mean the lesser of (i) the Exchange Cap, to the extent applicable to the transactions contemplated by this Agreement, and (ii) the Registration Statement Eligibility Cap, to the extent applicable to the transactions contemplated by this Agreement. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock pursuant to transactions contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(e)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby and thereby at all times during the term of this Agreement (except as set forth in Section 2(e)(ii) below).

Compliance with Registration Statement Eligibility Requirements and Rules of Principal Market. (i) Maximum Share Cap. Subject The Company hereby confirms that the issuance of the Purchase Shares to Section 2(e)(ii) below, the Company shall not issue or sell any shares of Common Stock Investor pursuant to this Agreement, and the Investor Agreement shall not purchase or acquire any shares result in the issuance of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate a number of shares of Common Stock that would be issued pursuant to this Agreement would exceed the lesser of: (A) the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby and thereby (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 NASDAQ Stock Market, including, without limitation, shares of Common Stock issued pursuant to the Prior Agreement) without (A1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Market or (B2) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Market Market; and (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock pursuant to this Agreement and the stockholders of the Company have in fact approved such issuance in accordance with the applicable rules and regulations of The NASDAQ Stock Market and the Certificate of Incorporation and Bylaws of the Company, or (CB) if for so long as the Company is subject to the limitations set forth in General Instruction I.B.6. of Form S-3 and the Staff Interpretations, the maximum number of shares of Common Stock that the Company may issue pursuant to 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 Staff Interpretations (such lesser amount, the “Registration Statement Eligibility Maximum Share Cap”). For all purposes of this Agreement, the term “Maximum Share Cap” The Company shall mean the lesser of (i) the Exchange Cap, to the extent applicable to the transactions contemplated by this Agreement, and (ii) the Registration Statement Eligibility Cap, to the extent applicable to the transactions contemplated by this Agreement. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance not issue any shares of Common Stock pursuant to this Agreement; providedAgreement if such issuance would reasonably be expected to result in (i) a violation of the Securities Act (including, that if stockholder approval is not obtained in accordance without limitation, non-compliance with General Instruction I.B.6. of Form S-3) or (ii) a breach of the rules and regulations of The NASDAQ Stock Market. The provisions of this Section 2(e)(i), the Exchange Cap 2(c) shall be applicable for all purposes implemented in a manner otherwise than in strict conformity with the terms hereof only if necessary to ensure compliance with the Securities Act (including, without limitation, General Instruction I.B.6. of this Agreement Form S-3) and the transactions contemplated hereby rules and thereby at all times during the term regulations of this Agreement (except as set forth in Section 2(e)(ii) below)The NASDAQ Stock Market.

Compliance with Registration Statement Eligibility Requirements and Rules of Principal Market. (i) Maximum Share Cap. Subject to Section 2(e)(ii) 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 that would be issued pursuant to this Agreement would exceed the lesser of: (A) the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby and thereby (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 NASDAQ Stock Market) without (A1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Market or (B2) 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 issuance of Common Stock pursuant to as contemplated by this Agreement and the stockholders of the Company have in fact approved such issuance in accordance with the applicable rules and regulations of The NASDAQ Stock Market Market, and the Certificate of Incorporation and Bylaws of the Company, or ; and (CB) if for so long as the Company is subject to the limitations set forth in General Instruction I.B.6. of Form S-3 and the Staff Interpretations, the maximum number of shares of Common Stock that the Company may issue pursuant to 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 Staff Interpretations (the “Registration Statement Eligibility Cap”). For all purposes of this Agreement, the term “Maximum Share Cap” shall mean the lesser of (i) the Exchange Cap, to the extent applicable to the transactions contemplated by this Agreement, and (ii) the Registration Statement Eligibility Cap, to the extent applicable to the transactions contemplated by this Agreement. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock pursuant to as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(e)(i2(d)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby and thereby at all times during the term of this Agreement (except as set forth in Section 2(e)(ii) below)Agreement.

Compliance with Registration Statement Eligibility Requirements and Rules of Principal Market. (i) Maximum Share Cap. Subject The Company hereby confirms that the issuance of the Purchase Shares to Section 2(e)(ii) below, the Company shall not issue or sell any shares of Common Stock Investors pursuant to this Agreement, and the Investor Agreement shall not purchase or acquire any shares result in the issuance of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate a number of shares of Common Stock that would be issued pursuant to this Agreement would exceed the lesser of: (A) the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby and thereby (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 NASDAQ Stock Market, including, without limitation, shares of Common Stock issued pursuant to the Prior Agreements) without (A1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Market or (B2) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Market Market; and (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock pursuant to this Agreement and the stockholders of the Company have in fact approved such issuance in accordance with the applicable rules and regulations of The NASDAQ Stock Market and the Certificate of Incorporation and Bylaws of the Company, or (CB) if for so long as the Company is subject to the limitations set forth in General Instruction I.B.6. of Form S-3 and the Staff Interpretations, the maximum number of shares of Common Stock that the Company may issue pursuant to 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 Staff Interpretations (such lesser amount, the “Registration Statement Eligibility Maximum Share Cap”). For all purposes of this Agreement, the term “Maximum Share Cap” The Company shall mean the lesser of (i) the Exchange Cap, to the extent applicable to the transactions contemplated by this Agreement, and (ii) the Registration Statement Eligibility Cap, to the extent applicable to the transactions contemplated by this Agreement. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance not issue any shares of Common Stock pursuant to this Agreement; providedAgreement if such issuance would reasonably be expected to result in (i) a violation of the Securities Act (including, that if stockholder approval is not obtained in accordance without limitation, non-compliance with General Instruction I.B.6. of Form S-3) or (ii) a breach of the rules and regulations of The NASDAQ Stock Market. The provisions of this Section 2(e)(i), the Exchange Cap 2(c) shall be applicable for all purposes implemented in a manner otherwise than in strict conformity with the terms hereof only if necessary to ensure compliance with the Securities Act (including, without limitation, General Instruction I.B.6. of this Agreement Form S-3) and the transactions contemplated hereby rules and thereby at all times during the term regulations of this Agreement (except as set forth in Section 2(e)(ii) below)The NASDAQ Stock Market.

Compliance with Registration Statement Eligibility Requirements and Rules of Principal Market. (i) Maximum Share Cap. Subject to Section 2(e)(ii) 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 that would be issued pursuant to this Agreement would exceed the lesser of: (A) subject to Section 2(e)(ii) below, the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby and thereby (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 NASDAQ Stock MarketMarket or any other Principal Market on which the Common Stock may be listed or quoted) without (A1) breaching the Company’s obligations under the applicable rules of The NASDAQ Stock Market or any other Principal Market on which the Common Stock may be listed or quoted or (B2) obtaining stockholder approval under the applicable rules of The NASDAQ Stock Market or any other Principal Market on which the Common Stock may be listed or quoted (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock pursuant to transactions contemplated by this Agreement and the stockholders of the Company have in fact approved such issuance the transactions contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ Stock Market, any other Principal Market on which the Common Stock may be listed or quoted, and the Restated Certificate of Incorporation Formation and Bylaws By-laws of the Company, or ; and (CB) if for so long as the Company is subject to the limitations set forth in General Instruction I.B.6. of Form S-3 and the Staff Interpretations, the maximum number of shares of Common Stock that the Company may issue pursuant to 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 Staff Interpretations (the “Registration Statement Eligibility Cap”). For all purposes of this Agreement, the term “Maximum Share Cap” shall mean the lesser of (i) the Exchange Cap, to the extent applicable to the transactions contemplated by this Agreement, and (ii) the Registration Statement Eligibility Cap, to the extent applicable to the transactions contemplated by this Agreement. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock pursuant to transactions contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(e)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby and thereby at all times during the term of this Agreement (except as set forth in Section 2(e)(ii) below).

Compliance with Registration Statement Eligibility Requirements and Rules of Principal Market. (i) Maximum Share Exchange Cap. Subject to Section 2(e)(ii2(c)(ii) below, the Company shall not issue or sell any shares of Common Stock Purchase Shares or Commitment Shares (as defined herein) pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock Purchase Shares or Commitment Shares pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be Purchase Shares and Commitment Shares issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby and thereby (taking into account Agreement, together with 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 NASDAQ the Principal Market, would exceed 2,974,483 shares of Common Stock Market(19.99% of the 14,879,857 outstanding shares of Common Stock on the date of this Agreement) without (A) breaching the Company’s obligations under the applicable rules of The 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 shareholder approval of the issuance of Common Stock pursuant to transactions contemplated by this Agreement and the stockholders shareholders of the Company have in fact approved such issuance the transactions contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ Stock the Principal Market and the Certificate of Incorporation and Bylaws By-laws of the Company, or (C) if for so long as the Company is subject to the limitations set forth in General Instruction I.B.6. of Form S-3 and the Staff Interpretations, the maximum number of shares of Common Stock that the Company may issue pursuant to 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 Staff Interpretations (the “Registration Statement Eligibility Cap”). For all purposes of this Agreement, the term “Maximum Share Cap” shall mean the lesser of (i) the Exchange Cap, to the extent applicable to the transactions contemplated by this Agreement, and (ii) the Registration Statement Eligibility Cap, to the extent applicable to the transactions contemplated by this Agreement. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders shareholders to approve the issuance of Common Stock pursuant to transactions contemplated by this Agreement; provided, that if stockholder shareholder approval is not obtained in accordance with this Section 2(e)(i2(c)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby and thereby at all times during the term of this Agreement (except as set forth in Section 2(e)(ii2(c)(ii) below).

Compliance with Registration Statement Eligibility Requirements and Rules of Principal Market. (i) Maximum Share Cap. Subject to Section 2(e)(ii) 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 that would be issued pursuant to this Agreement would exceed the lesser of: (A) subject to Section 2(d)(ii) below, the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby and thereby (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 NASDAQ Nasdaq Stock MarketMarket or any other Principal Market on which the Common Stock may be listed or quoted) without (A1) breaching the Company’s obligations under the applicable rules of The NASDAQ Nasdaq Stock Market or any other Principal Market on which the Common Stock may be listed or quoted or (B2) obtaining stockholder approval under the applicable rules of The NASDAQ Nasdaq Stock Market or any other Principal Market on which the Common Stock may be listed or quoted (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock pursuant to transactions contemplated by this Agreement and the stockholders of the Company have in fact approved such issuance the transactions contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ Nasdaq Stock Market, any other Principal Market on which the Common Stock may be listed or quoted, and the Certificate of Incorporation and Bylaws By-laws of the Company, or ; and (CB) if for so long as the Company is subject to the limitations set forth in General Instruction I.B.6. of Form S-3 and the Staff Interpretations, the maximum number of shares of Common Stock that the Company may issue pursuant to 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 Staff Interpretations (the “Registration Statement Eligibility Cap”). For all purposes of this Agreement, the term “Maximum Share Cap” shall mean the lesser of (i) the Exchange Cap, to the extent applicable to the transactions contemplated by this Agreement, and (ii) the Registration Statement Eligibility Cap, to the extent applicable to the transactions contemplated by this Agreement. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock pursuant to transactions contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(e)(i2(d)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby and thereby at all times during the term of this Agreement (except as set forth in Section 2(e)(ii2(d)(ii) below).

Compliance with Registration Statement Eligibility Requirements and Rules of Principal Market. (i) Maximum Share Cap. Subject to Section 2(e)(ii) 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 that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby and thereby would exceed the lesser of: (taking into account all A) subject to Section 2(e)(ii) below, 21,509,525 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 NASDAQ the NYSE MKT or any other Principal Market on which the Common Stock Marketmay be listed or quoted) without (A) breaching the Company’s obligations under the applicable rules of The 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 issuance of Common Stock pursuant to transactions contemplated by this Agreement and the stockholders of the Company have in fact approved such issuance the transactions contemplated by this Agreement in accordance with the applicable rules and regulations of The NASDAQ the NYSE MKT, any other Principal Market on which the Common Stock Market may be listed or quoted, and the Certificate of Incorporation and Bylaws of the Company, or ; and (CB) if for so long as the Company is subject to the limitations set forth in General Instruction I.B.6. of Form S-3 and the Staff InterpretationsS-3, the maximum number of shares of Common Stock that the Company may issue pursuant to 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 Staff Interpretations (the “Registration Statement Eligibility Cap”). For all purposes of this Agreement, the term “Maximum Share Cap” shall mean the lesser of (i) the Exchange Cap, to the extent applicable to the transactions contemplated by this Agreement, and (ii) the Registration Statement Eligibility Cap, to the extent applicable to the transactions contemplated by this Agreement. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock pursuant to transactions contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(e)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby and thereby at all times during the term of this Agreement (except as set forth in Section 2(e)(ii) below).

Compliance with Registration Statement Eligibility Requirements and Rules of Principal Market. (i) Maximum Share Cap. Subject to Section 2(e)(ii) 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 all shares of Common Stock that would be issued pursuant to this Agreement would exceed the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby and thereby (taking into account Agreement, together with 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 NASDAQ Nasdaq Stock Market) without Market or any other Principal Market on which the Common Stock may be listed or quoted, would exceed the lesser of: (A) breaching the Company’s obligations under the applicable rules of The 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 issuance of Common Stock pursuant to this Agreement and the stockholders of the Company have in fact approved such issuance in accordance with the applicable rules and regulations of The NASDAQ Stock Market and the Certificate of Incorporation and Bylaws of the Company, or (C) if for so long as the Company is subject to the limitations set forth in General Instruction I.B.6. of Form S-3 and the Staff InterpretationsSection 2(c)(ii) below, the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby without exceeding (1) breaching the Company’s obligations under the applicable rules of The Nasdaq Stock Market or any other Principal Market on which the Common Stock may be listed or quoted or (2) obtaining stockholder approval under the applicable rules of The Nasdaq Stock Market or any other Principal Market on which the Common Stock may be listed or quoted (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 Nasdaq Stock Market, any other Principal Market on which the Common Stock may be listed or quoted, and the Certificate of Incorporation and By-laws of the Company; and (B) the maximum number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby without causing the Company to exceed the limitations set forth in General Instruction I.B.6. of Form S-3 and the Staff interpretations of the SEC’s staff set forth in response to questions 139.23 and 139.24 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”). For all purposes of this Agreement, the term “Maximum Share Cap” shall mean the lesser of (i) the Exchange Cap, to the extent applicable to the transactions contemplated by this Agreement, and (ii) the Registration Statement Eligibility Cap, to Cap (it being hereby acknowledged and agreed that the extent Registration Statement Eligibility Cap shall be applicable to for all purposes of this Agreement and the transactions contemplated by 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 issuance of Common Stock pursuant to transactions contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(e)(i2(c)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby and thereby at all times during the term of this Agreement (except as set forth in Section 2(e)(ii2(c)(ii) below).