Common use of Increase in Authorized Common Stock Clause in Contracts

Increase in Authorized Common Stock. Promptly following the Original Issue Date, the Company shall take all corporate action necessary to call a meeting of its stockholders (which may be its annual meeting) (the “Stockholders Meeting”), which shall occur not later than August 15, 2011, for the purpose of seeking approval of the Company’s stockholders to amend the Company’s Amended and Restated Certificate of Incorporation to increase the Company’s authorized Common Stock from 90,000,000 shares to not less than 150,000,000 shares (the “Increased Shares Amendment”). In connection therewith, the Company will as soon as reasonably practicable after the Original Issue Date file with the Commission proxy materials (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, after receiving and promptly responding to any comments of the Commission thereon, shall as soon as reasonably practicable mail such proxy materials to the stockholders of the Company. The Company will comply with Section 14(a) of the Exchange Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, the “Proxy Statement”) and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or its Subsidiaries or any of their respective affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company’s obligations under the Exchange Act, the Company will promptly inform Xxxx Capital Partners, LLC (“Xxxx”) thereof. The Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Increased Shares Amendment at the Stockholders Meeting and take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Increased Shares Amendment. No later than two (2) business days following stockholder approval of the Increased Shares Amendment, the Company shall file with the Secretary of State of Delaware a certificate of amendment to the Certificate of Incorporation to effect the Increased Shares Amendment, which certificate of amendment shall provide that it shall become immediately effective upon filing. The Company shall issue a press release announcing the effectiveness of the Increased Shares Amendment no later than one (1) business day after such filing. The date on which the Increased Shares Amendment becomes effective is referred to herein as the “Authorized Shares Increase Date.” In the event that the Increased Shares Amendment is not approved by the stockholders of the Company in accordance with applicable law and the requirements of the Company’s certificate of incorporation and bylaws on or before the first anniversary of the Original Issue Date (the “Amendment Deadline Date”), the Holders of the Series A Warrants (as defined below) shall be entitled to receive an aggregate cash payment, as liquidated damages and not as a penalty, in an aggregate amount of $2,500,000 (the “Liquidated Damages Amount”). Not later than the close of business on the Amendment Deadline Date, the Company shall irrevocably deposit the Liquidated Damages Amount with an escrow agent reasonably acceptable to Xxxx (the “Escrow Agent”), the Liquidated Damages Amount to be held in trust for the benefit of the Holders of the Series A Warrants entitled to payment thereof as provided in this paragraph. The Escrow Agent shall fix or cause to be fixed a record date (the “Record Date”) for determining the Holders of the Series A Warrants entitled to payment of the Liquidated Damages Amount and a payment date (the “Payment Date”) on which the Liquidated Damages Amount is to be paid to such Holders. No Payment Date may be less than 15 days or more than 30 days after the Record Date. At least 15 days before the Record Date, the Escrow Agent shall mail or cause to be mailed, first-class postage prepaid, to each record Holder of Series A Warrants, with a copy to the Company, a notice at the Holder’s address as it appears in the Escrow Agent’s books and records, setting forth the Record Date, the Payment Date and an estimate of the Per Warrant Amount (as defined in the following sentence). On the Payment Date, the Escrow Agent shall pay to each record Holder of Series A Warrants at the close of business on the Record Date (each, a “Record Holder”) an amount equal to (A) the quotient obtained by dividing (i) the Liquidated Damages Amount by (ii) the number of Warrant Shares issuable upon the exercise of all of the Series A Warrants outstanding on the Record Date (the “Per Warrant Amount”), times (B) the number of Warrant Shares issuable upon the exercise of the Series A Warrants held by the Record Holder as of the close of business on the Record Date. Any such payment shall be by check payable to the order of the Record Holder unless otherwise requested by such Record Holder. For the avoidance of doubt, this Warrant shall remain outstanding and in full force and effect notwithstanding the payment of the Liquidated Damages Amount and shall continue to be exercisable from and after the Exercisability Date. The provisions of this Section 5(d) may not be modified, amended or deleted without Roth’s prior written consent in addition to the consent of the Holder required pursuant to Section 5(n).

Increase in Authorized Common Stock. Promptly following the Original Issue Dateoriginal issuance date of the Warrants, the Company shall take all corporate action necessary to call a meeting of its stockholders (which may be its annual meeting) (the “Stockholders Meeting”), which shall occur not later than August 15June 30, 2011, for the purpose of seeking approval of the Company’s stockholders to amend the Company’s Amended and Restated Certificate of Incorporation to increase the Company’s authorized Common Stock from 90,000,000 40,000,000 shares to not less than 150,000,000 100,000,000 shares (the “Increased Shares Amendment”). In connection therewith, the Company will as soon as reasonably practicable after the Original Issue Closing Date file with the Commission proxy materials (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, after receiving and promptly responding to any comments of the Commission thereon, shall as soon as reasonably practicable mail such proxy materials to the stockholders of the Company. The Company will comply with Section 14(a) of the Exchange Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, the “Proxy Statement”) and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or its Subsidiaries RhoMed Incorporated, the Company's subsidiary, or any of their respective affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company’s 's obligations under the Exchange Act, the Company will promptly inform Xxxx Capital Partners, LLC (“Xxxx”) the Representative thereof. The Company's Board of Directors shall recommend to the Company’s 's stockholders that the stockholders vote in favor of the Increased Shares Amendment at the Stockholders Meeting and take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Increased Shares Amendment. No later than two (2) business days Business Days following stockholder approval of the Increased Shares Amendment, the Company shall file with the Secretary of State of Delaware a certificate of amendment to the Company’s Certificate of Incorporation to effect the Increased Shares Amendment, which certificate of amendment shall provide that it shall become immediately effective upon filing. The Company shall issue a press release announcing the effectiveness of the Increased Shares Amendment no later than one (1one) business day Business Day after such filing. The date on which the Increased Shares Amendment becomes effective is referred to herein as the “Authorized Shares Increase Date.” In the event that the Increased Shares Amendment is not approved by the stockholders of the Company in accordance with applicable law and the requirements of the Company’s certificate of incorporation and bylaws on or before the first anniversary day of the Original Issue Date Exercise Period of the Series B Warrants (the “Amendment Deadline Trigger Date”), the Holders holders of the Series A B Warrants (as defined below) shall be entitled to receive an aggregate cash payment, as liquidated damages and not as a penalty, in an aggregate amount of $2,500,000 (the “Liquidated Damages Amount”). Not later than the close of business on the Amendment Deadline Trigger Date, the Company shall irrevocably deposit the Liquidated Damages Amount with an escrow agent reasonably acceptable to Xxxx (the “Escrow Warrant Agent”), the Liquidated Damages Amount to be held in trust for the benefit of the Holders of the Series A Warrants holders entitled to payment thereof as provided in this paragraph. The Escrow Warrant Agent shall fix or cause to be fixed a record date (the “Record Date”) for determining the Holders holders of the Series A B Warrants entitled to payment of the Liquidated Damages Amount and a payment date (the “Payment Date”) on which the Liquidated Damages Amount is to be paid to such Holdersholders. No Payment Date may be less than 15 days or more than 30 days after the Record Date. At least 15 days before the Record Date, the Escrow Warrant Agent shall mail or cause to be mailed, first-class postage prepaid, to each record Holder holder of Series A B Warrants, with a copy to the Company, a notice at the Holderholder’s address as it appears in the Escrow Warrant Agent’s books and records, setting forth the Record Date, the Payment Date and an estimate of the Per Warrant Amount (as defined in the following sentence). On the Payment Date, the Escrow Warrant Agent shall pay to each record Holder holder of Series A B Warrants at the close of business on the Record Date (each, a “Record Holder”) an amount equal to (A) the quotient obtained by dividing (i) the Liquidated Damages Amount by (ii) the number of Warrant Shares issuable upon the exercise of all of the Series A B Warrants outstanding on the Record Date (the “Per Warrant Amount”), times (B) the number of Warrant Shares issuable upon the exercise of the Series A B Warrants held by the Record Holder as of the close of business on the Record Date. Any such payment shall be by check payable to the order of the Record Holder unless otherwise requested by such Record Holder. For the avoidance of doubt, this Warrant shall remain outstanding and in full force and effect notwithstanding the payment of the Liquidated Damages Amount and shall continue to be exercisable from and after the Exercisability Date. The provisions of this Section 5(d) 7.4 may not be modified, amended or deleted without Roth’s the prior written consent in addition to the consent of the Holder required pursuant to Section 5(n)Representative.

Increase in Authorized Common Stock. Promptly following the Original Issue Dateoriginal issuance date of the Warrants, the Company shall take all corporate action necessary to call a meeting of its stockholders (which may be its annual meeting) (the “Stockholders Meeting”), which shall occur not later than August 15●, 2011, for the purpose of seeking approval of the Company’s stockholders to amend the Company’s Amended and Restated Certificate of Incorporation to increase the Company’s authorized Common Stock from 90,000,000 40,000,000 shares to not less than 150,000,000 ● shares (the “Increased Shares Amendment”). In connection therewith, the Company will as soon as reasonably practicable after the Original Issue Closing Date file with the Commission proxy materials (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, after receiving and promptly responding to any comments of the Commission thereon, shall as soon as reasonably practicable mail such proxy materials to the stockholders of the Company. The Company will comply with Section 14(a) of the Exchange Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, the “Proxy Statement”) and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or its Subsidiaries RhoMed Incorporated, the Company's subsidiary, or any of their respective affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company’s 's obligations under the Exchange Act, the Company will promptly inform Xxxx Capital Partners, LLC (“Xxxx”) the Representative thereof. The Company's Board of Directors shall recommend to the Company’s 's stockholders that the stockholders vote in favor of the Increased Shares Amendment at the Stockholders Meeting and take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Increased Shares Amendment. No later than two (2) business days Business Days following stockholder approval of the Increased Shares Amendment, the Company shall file with the Secretary of State of Delaware a certificate of amendment to the Company’s Certificate of Incorporation to effect the Increased Shares Amendment, which certificate of amendment shall provide that it shall become immediately effective upon filing. The Company shall issue a press release announcing the effectiveness of the Increased Shares Amendment no later than one (1one) business day Business Day after such filing. The date on which the Increased Shares Amendment becomes effective is referred to herein as the “Authorized Shares Increase Date.” In the event that the Increased Shares Amendment is not approved by the stockholders of the Company in accordance with applicable law and the requirements of the Company’s certificate of incorporation and bylaws on or before the first anniversary day of the Original Issue Date Exercise Period of the Series B Warrants (the “Amendment Deadline Trigger Date”), the Holders holders of the Series A B Warrants (as defined below) shall be entitled to receive an aggregate cash payment, as liquidated damages and not as a penalty, in an aggregate amount of $2,500,000 (the “Liquidated Damages Amount”). Not later than the close of business on the Amendment Deadline Trigger Date, the Company shall irrevocably deposit the Liquidated Damages Amount with an escrow agent reasonably acceptable to Xxxx (the “Escrow Warrant Agent”), the Liquidated Damages Amount to be held in trust for the benefit of the Holders of the Series A Warrants holders entitled to payment thereof as provided in this paragraph. The Escrow Warrant Agent shall fix or cause to be fixed a record date (the “Record Date”) for determining the Holders holders of the Series A B Warrants entitled to payment of the Liquidated Damages Amount and a payment date (the “Payment Date”) on which the Liquidated Damages Amount is to be paid to such Holdersholders. No Payment Date may be less than 15 days or more than 30 days after the Record Date. At least 15 days before the Record Date, the Escrow Warrant Agent shall mail or cause to be mailed, first-class postage prepaid, to each record Holder holder of Series A B Warrants, with a copy to the Company, a notice at the Holderholder’s address as it appears in the Escrow Warrant Agent’s books and records, setting forth the Record Date, the Payment Date and an estimate of the Per Warrant Amount (as defined in the following sentence). On the Payment Date, the Escrow Warrant Agent shall pay to each record Holder holder of Series A B Warrants at the close of business on the Record Date (each, a “Record Holder”) an amount equal to (A) the quotient obtained by dividing (i) the Liquidated Damages Amount by (ii) the number of Warrant Shares issuable upon the exercise of all of the Series A B Warrants outstanding on the Record Date (the “Per Warrant Amount”), times (B) the number of Warrant Shares issuable upon the exercise of the Series A B Warrants held by the Record Holder as of the close of business on the Record Date. Any such payment shall be by check payable to the order of the Record Holder unless otherwise requested by such Record Holder. For the avoidance of doubt, this Warrant shall remain outstanding and in full force and effect notwithstanding the payment of the Liquidated Damages Amount and shall continue to be exercisable from and after the Exercisability Date. The provisions of this Section 5(d) 7.4 may not be modified, amended or deleted without Roth’s the prior written consent in addition to the consent of the Holder required pursuant to Section 5(n)Representative.

Increase in Authorized Common Stock. Promptly following The Company shall, at all times, reserve for issuance out of its authorized and unissued shares of Common Stock, such number of shares of Common Stock as can reasonably be anticipated to be required for issuance under this Agreement. If, at the Original Issue Datetime of notice of its annual meeting of stockholders, it is reasonably foreseeable that additional shares of authorized and unissued Common Stock are required, the Company shall take all corporate action necessary propose to call a meeting of its stockholders (which may an amendment to its certificate of incorporation to increase its authorized shares so that it can meet its contractual obligations under this Agreement. Notwithstanding Article II of this Agreement, if, at any Closing, the number of Shares to be its annual meeting) (issued at such Closing would cause the “Stockholders Meeting”), which shall occur not later than August 15, 2011, for the purpose of seeking approval outstanding shares of the Company’s stockholders Company to amend exceed the Company’s Amended number of shares of Common Stock authorized by its Certificate of Incorporation, the number of Shares issued at such Closing shall be reduced to the maximum number of Shares that can be issued, and Restated the Closing with respect to the balance of the Shares required by this Agreement to be issued at such Closing, but not so issued, shall be postponed (but not for more than six months) until the Company has caused its Certificate of Incorporation to be amended to increase its authorized shares of Common Stock to accommodate the issuance of the additional Shares at such Closing and any other additional Shares that can reasonably be anticipated to be issued under this Agreement. The Company shall use reasonable best efforts to promptly call a special meeting of stockholders to cause its Certificate of Incorporation to be amended to increase the Company’s number of authorized shares of Common Stock, or shall cause such amendment to be included in its next annual meeting of stockholders if such meeting is within three months of the date of such closing. In furtherance of the foregoing, the Investors hereby agree to vote the Shares and all shares of Common Stock from 90,000,000 shares to not less than 150,000,000 shares (held by such Investors as of the “Increased Shares Amendment”). In connection therewith, record date for such meeting in favor of such an amendment and hereby grants the Company will a limited irrevocable proxy to vote the shares of Common Stock as soon as reasonably practicable after to which such Investor has voting power for the Original Issue Date file with Investor and in the Commission proxy materials (including a proxy statement Investor’s name, place and form stead, at any annual or special meeting of proxy) for use at the Stockholders Meeting and, after receiving and promptly responding to any comments of the Commission thereon, shall as soon as reasonably practicable mail such proxy materials to the stockholders of the Company, as applicable, or at any adjournment thereof for the adoption of such charter amendment. The Company will comply with Section 14(a) Notwithstanding the foregoing, the obligation of the Exchange Act and the rules promulgated thereunder in relation Investors to any proxy statement (as amended or supplemented, the “Proxy Statement”) and any form of proxy to be sent to the stockholders vote their voting securities of the Company as such is in connection with the Stockholders Meeting, their capacity as such and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of as a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or its Subsidiaries or any of their respective affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company’s obligations under the Exchange Act, the Company will promptly inform Xxxx Capital Partners, LLC (“Xxxx”) thereof. The Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Increased Shares Amendment at the Stockholders Meeting and take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Increased Shares Amendment. No later than two (2) business days following stockholder approval of the Increased Shares Amendment, the Company shall file with the Secretary of State of Delaware a certificate of amendment to the Certificate of Incorporation to effect the Increased Shares Amendment, which certificate of amendment shall provide that it shall become immediately effective upon filing. The Company shall issue a press release announcing the effectiveness of the Increased Shares Amendment no later than one (1) business day after such filing. The date on which the Increased Shares Amendment becomes effective is referred to herein as the “Authorized Shares Increase Date.” In the event that the Increased Shares Amendment is not approved by the stockholders of the Company and will not affect their obligation to act in accordance with applicable law and the requirements their capacity as a director, officer or advisor of the Company’s certificate of incorporation and bylaws on or before the first anniversary of the Original Issue Date (the “Amendment Deadline Date”), the Holders of the Series A Warrants (as defined below) shall be entitled to receive an aggregate cash payment, as liquidated damages and not applicable, or to comply with their fiduciary duties as a penalty, in an aggregate amount of $2,500,000 (the “Liquidated Damages Amount”). Not later than the close of business on the Amendment Deadline Date, the Company shall irrevocably deposit the Liquidated Damages Amount with an escrow agent reasonably acceptable to Xxxx (the “Escrow Agent”), the Liquidated Damages Amount to be held in trust for the benefit of the Holders of the Series A Warrants entitled to payment thereof as provided in this paragraph. The Escrow Agent shall fix or cause to be fixed a record date (the “Record Date”) for determining the Holders of the Series A Warrants entitled to payment of the Liquidated Damages Amount and a payment date (the “Payment Date”) on which the Liquidated Damages Amount is to be paid to such Holders. No Payment Date may be less than 15 days or more than 30 days after the Record Date. At least 15 days before the Record Date, the Escrow Agent shall mail or cause to be mailed, first-class postage prepaid, to each record Holder of Series A Warrants, with a copy to the Company, a notice at the Holder’s address as it appears in the Escrow Agent’s books and records, setting forth the Record Date, the Payment Date and an estimate of the Per Warrant Amount (as defined in the following sentence). On the Payment Date, the Escrow Agent shall pay to each record Holder of Series A Warrants at the close of business on the Record Date (each, a “Record Holder”) an amount equal to (A) the quotient obtained by dividing (i) the Liquidated Damages Amount by (ii) the number of Warrant Shares issuable upon the exercise of all of the Series A Warrants outstanding on the Record Date (the “Per Warrant Amount”), times (B) the number of Warrant Shares issuable upon the exercise of the Series A Warrants held by the Record Holder as of the close of business on the Record Date. Any such payment shall be by check payable to the order of the Record Holder unless otherwise requested by such Record Holder. For the avoidance of doubt, this Warrant shall remain outstanding and in full force and effect notwithstanding the payment of the Liquidated Damages Amount and shall continue to be exercisable from and after the Exercisability Date. The provisions of this Section 5(d) may not be modified, amended or deleted without Roth’s prior written consent in addition to the consent of the Holder required pursuant to Section 5(n)such.