Common use of Calculation Disputes Clause in Contracts

Calculation Disputes. Notwithstanding the Arbitration Provisions, in the case of a dispute as to any determination or arithmetic calculation under the Exchange Documents, including without limitation, calculating the Outstanding Balance, Conversion Price (as defined in the Exchange Notes), Conversion Shares, Conversion Factor (as defined in the Exchange Notes), or VWAP (as defined in the Exchange Notes) (each, a “Calculation”), the Company or Holder (as the case may be) shall submit any disputed Calculation via email or facsimile with confirmation of receipt (i) within two (2) Trading Days after receipt of the applicable notice giving rise to such dispute to the Company or Holder (as the case may be) or (ii) if no notice gave rise to such dispute, at any time after Holder learned of the circumstances giving rise to such dispute. If Holder and the Company are unable to agree upon such Calculation within two (2) Trading Days of such disputed Calculation being submitted to the Company or Holder (as the case may be), then Holder will promptly submit via email or facsimile the disputed Calculation to Unkar Systems Inc. (“Unkar Systems”). The Company shall cause Unkar Systems to perform the Calculation and notify the Company and Holder of the results no later than ten (10) Trading Days from the time it receives such disputed Calculation. Unkar Systems’ determination of the disputed Calculation shall be binding upon all parties absent demonstrable and manifest error. Unkar Systems’ fee for performing such Calculation shall be paid by the incorrect party, or if both parties are incorrect, by the party whose Calculation is furthest from the correct Calculation as determined by Unkar Systems. In the event the Company is the losing party, no extension of the Delivery Date (as defined in the Note) shall be granted and the Company shall incur all effects for failing to deliver the applicable shares in a timely manner as set forth in the Exchange Documents. Notwithstanding the foregoing, Holder may, in its sole discretion, designate an independent, reputable investment bank or accounting firm other than Unkar Systems to resolve any such dispute and in such event, all references to “Unkar Systems” herein will be replaced with references to such independent, reputable investment bank or accounting firm so designated by Holder.

Calculation Disputes. Notwithstanding the Arbitration Provisions, in the case of a dispute as to any determination or arithmetic calculation under the Exchange Transaction Documents, including without limitation, calculating the Outstanding Balance, Conversion Price Price, Conversion Shares (as defined in the Exchange NotesNote), Conversion Shares, Conversion Factor (as defined in the Exchange NotesNote), Market Price (as defined in the Note), or VWAP (as defined in the Exchange NotesNote) (each, a “Calculation”), the Company or Holder Investor (as the case may be) shall submit any disputed Calculation via email or facsimile with confirmation of receipt (i) within two (2) Trading Days after receipt of the applicable notice giving rise to such dispute to the Company or Holder Investor (as the case may be) or (ii) if no notice gave rise to such dispute, at any time after Holder Investor learned of the circumstances giving rise to such dispute. If Holder Investor and the Company are unable to agree upon such Calculation within two (2) Trading Days of such disputed Calculation being submitted to the Company or Holder Investor (as the case may be), then Holder Investor will promptly submit via email or facsimile the disputed Calculation to Unkar Systems Inc. (“Unkar Systems”). The Company Investor shall cause Unkar Systems to perform the Calculation and notify the Company and Holder Investor of the results no later than ten (10) Trading Days from the time it receives such disputed Calculation. Unkar Systems’ determination of the disputed Calculation shall be binding upon all parties absent demonstrable and manifest error. Unkar Systems’ fee for performing such Calculation shall be paid by the incorrect party, or if both parties are incorrect, by the party whose Calculation is furthest from the correct Calculation as determined by Unkar Systems. In the event the Company is the losing party, no extension of the Delivery Date (as defined in the Note) shall be granted and the Company shall incur all effects for failing to deliver the applicable shares in a timely manner as set forth in the Exchange Transaction Documents. Notwithstanding the foregoing, Holder Investor may, in its sole discretion, designate an independent, reputable investment bank or accounting firm other than Unkar Systems to resolve any such dispute and in such event, all references to “Unkar Systems” herein will be replaced with references to such independent, reputable investment bank or accounting firm so designated by HolderInvestor.

Calculation Disputes. Notwithstanding the Arbitration Provisions, in the case of a dispute as to any determination or arithmetic calculation under the Exchange Transaction Documents, including without limitation, calculating the Outstanding BalanceBalance (as defined in the Note), Conversion Price (as defined in the Exchange NotesNote), Lender Conversion Shares, Conversion Factor Shares (as defined in the Exchange NotesNote), Redemption Conversion Shares (as defined in the Note), or VWAP (as defined in the Exchange NotesNote) (each, a “Calculation”), the Company or Holder Investor (as the case may be) shall submit any disputed Calculation via email or facsimile with confirmation of receipt (i) within two (2) Trading Days after receipt of the applicable notice giving rise to such dispute to the Company or Holder Investor (as the case may be) or (ii) if no notice gave rise to such dispute, at any time after Holder Investor learned of the circumstances giving rise to such dispute. If Holder Investor and the Company are unable to agree upon such Calculation within two (2) Trading Days of such disputed Calculation being submitted to the Company or Holder Investor (as the case may be), then Holder Investor will promptly submit via email or facsimile the disputed Calculation to Unkar Systems Inc. (“Unkar Systems”). The Company Investor shall cause Unkar Systems to perform the Calculation and notify the Company and Holder Investor of the results no later than ten (10) Trading Days from the time it receives such disputed Calculation. Unkar Systems’ determination of the disputed Calculation shall be binding upon all parties absent demonstrable and manifest error. Unkar Systems’ fee for performing such Calculation shall be paid by the incorrect party, or if both parties are incorrect, by the party whose Calculation is furthest from the correct Calculation as determined by Unkar Systems. In the event the Company is the losing party, no extension of the Delivery Date (as defined in the Note) shall be granted and the Company shall incur all effects for failing to deliver the applicable shares in a timely manner as set forth in the Exchange Transaction Documents. Notwithstanding the foregoing, Holder Investor may, in its sole discretion, designate an independent, reputable investment bank or accounting firm other than Unkar Systems to resolve any such dispute and in such event, all references to “Unkar Systems” herein will be replaced with references to such independent, reputable investment bank or accounting firm so designated by HolderInvestor.

Calculation Disputes. Notwithstanding the Arbitration Provisions, in the case of a dispute as to any determination or arithmetic calculation under the Exchange Transaction Documents, including without limitation, calculating the Outstanding BalanceBalance (as defined in the Notes), Conversion Price (as defined in the Exchange Notes), Conversion Shares, Conversion Factor Shares (as defined in the Exchange Notes), or VWAP (as defined in the Exchange Notes) (each, a “Calculation”), the Company or Holder Investor (as the case may be) shall submit any disputed Calculation via email or facsimile with confirmation of receipt (i) within two (2) Trading Days after receipt of the applicable notice giving rise to such dispute to the Company or Holder Investor (as the case may be) or (ii) if no notice gave rise to such dispute, at any time after Holder Company or Investor (as the case may be) learned of the circumstances giving rise to such dispute. If Holder Investor and the Company are unable to agree upon such Calculation within two (2) Trading Days of such disputed Calculation being submitted to the Company or Holder Investor (as the case may be), then Holder will promptly Investor shall, within two (2) Trading Days, submit via email or facsimile the disputed Calculation to Unkar Systems Inc. (“Unkar Systems”). The Company shall cause Unkar Systems to perform the Calculation and notify the Company and Holder Investor of the results no later than ten (10) Trading Days from the time it receives such disputed Calculation. Unkar Systems’ determination of the disputed Calculation shall be binding upon all parties absent demonstrable and manifest error. Unkar Systems’ fee for performing such Calculation shall be paid by the incorrect party, or if both parties are incorrect, by the party whose Calculation is furthest from the correct Calculation as determined by Unkar Systems. In the event the Company is the losing party, no extension of the Delivery Date (as defined in the NoteNotes) shall be granted and the Company shall incur all effects for failing to deliver the applicable shares in a timely manner as set forth in the Exchange Transaction Documents. Notwithstanding the foregoing, Holder Investor may, in its sole discretion, designate an independent, reputable investment bank or accounting firm other than Unkar Systems to resolve any such dispute and in such event, all references to “Unkar Systems” herein will be replaced with references to such independent, reputable investment bank or accounting firm so designated by HolderInvestor.