Common use of Calculation Disputes Clause in Contracts

Calculation Disputes. Notwithstanding the Arbitration Provisions, in the case of a dispute as to any arithmetic calculation under the Transaction Documents, including without limitation, calculating the Outstanding Balance, Warrant Shares, Exercise Shares (as defined in the Warrant), Delivery Shares (as defined in the Warrant), Lender Conversion Price, Lender Conversion Shares (as defined in the Note), Installment Conversion Price (as defined in the Note), Installment Conversion Shares (as defined in the Note), Conversion Factor (as defined in the Note), Market Price, Conversion Shares, or the VWAP (as defined in the Note) (collectively, “Calculations”), Company or Investor (as the case may be) shall submit the disputed determinations or arithmetic calculations (as the case may be) via email or facsimile with confirmation of receipt (a) within two (2) Trading Days after receipt of the applicable notice giving rise to such dispute to Company or Investor (as the case may be) or (b) if no notice gave rise to such dispute, at any time after Investor learned of the circumstances giving rise to such dispute. If Investor and Company are unable to agree upon such determination or calculation within two (2) Trading Days of such disputed determination or arithmetic calculation (as the case may be) being submitted to Company or Investor (as the case may be), then Investor shall, within two (2) Trading Days, submit via email or facsimile the disputed Calculation to Unkar Systems Inc. (“Unkar Systems”). Company shall cause Unkar Systems to perform the determinations or calculations (as the case may be) and notify Company and Investor of the results no later than ten (10) Trading Days from the time it receives such disputed determinations or calculations (as the case may be). Unkar Systems’ determination of the disputed Calculation shall be binding upon all parties absent demonstrable 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 Company is the losing party, no extension of the Delivery Date shall be granted and Company shall incur all effects for failing to deliver the applicable shares in a timely manner as set forth in the Transaction Documents. Notwithstanding the foregoing, 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 Investor.

Calculation Disputes. Notwithstanding the Arbitration Provisions, in In the case of a dispute as to any arithmetic calculation under the Transaction Documentsdetermination of the Conversion Price (including, including without limitation, calculating any disputed adjustment thereto or any dispute as to whether any issuance or sale or deemed issuance or sale, the Outstanding Balanceconversion price, Warrant Sharesthe trading price, Exercise Shares the closing sale price or fair market value (as defined in the Warrant)case may be) or the calculation of the conversion price, Delivery Shares (as defined in the Warrant), Lender Conversion Price, Lender Conversion Shares (as defined in any reduction or addition of principal balance to the Note), Installment Conversion Price (as defined in the Note), Installment Conversion Shares (as defined in the Note), Conversion Factor (as defined in the Note), Market Price, Conversion Shares, Borrower or the VWAP (as defined in the Note) (collectively, “Calculations”), Company or Investor Holder (as the case may be) shall submit the disputed determinations or arithmetic calculations (as the case may be) via email or facsimile with confirmation of receipt mail (ai) within two (2) Trading Business Days after receipt of the applicable notice giving rise to such dispute to Company the Borrower or Investor the Holder (as the case may be) or (bii) if no notice gave rise to such dispute, at any time after Investor the Holder learned of the circumstances giving rise to such dispute. If Investor the Holder and Company the Borrower are unable to agree upon such determination or calculation within two (2) Trading business Days of such disputed determination or arithmetic calculation (as the case may be) being submitted to Company the Borrower or Investor the Holder (as the case may be), then Investor the Borrower shall, within two (2) Trading Business Days, submit via email or facsimile (a) the disputed Calculation to Unkar Systems Inc. (“Unkar Systems”). Company shall cause Unkar Systems to perform determination of the determinations conversion price, trading price or calculations other price (as the case may be) to an independent, reputable investment banks selected by the Borrower and approved by the Holder or to an independent, outside accountant selected by the Holder that is reasonable acceptable to the Borrower. The Borrower shall cause at its expense the investment bank or the accountant (as the case may be) to perform the determinations or calculations and notify Company the Borrower and Investor the Holder of the results no later than ten (10) Trading Days business days from the time it receives such disputed determinations or calculations (as the case may be). Unkar Systems’ Such investment bank’s or accountant’s determination of or calculation (as the disputed Calculation case may be) shall be binding upon all parties absent demonstrable 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 Company is the losing party, no extension of the Delivery Date shall be granted and Company shall incur all effects for failing to deliver the applicable shares in a timely manner as set forth in the Transaction Documents. Notwithstanding the foregoing, 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 Investor.

Calculation Disputes. Notwithstanding the Arbitration Provisions, in In the case of a dispute as to any arithmetic calculation under the Transaction Documentsdetermination of the Conversion Price (including, including without limitation, calculating any disputed adjustment thereto or any dispute as to whether any issuance or sale or deemed issuance or sale, The conversion price, the Outstanding Balancetrading price, Warrant Shares, Exercise Shares the closing sale price or fair market value (as defined in the Warrant)case may be) or the calculation of the conversion price, Delivery Shares (as defined in the Warrant), Lender Conversion Price, Lender Conversion Shares (as defined in any reduction or addition of principal balance to the Note), Installment Conversion Price (as defined in the Note), Installment Conversion Shares (as defined in the Note), Conversion Factor (as defined in the Note), Market Price, Conversion Shares, Company or the VWAP (as defined in the Note) (collectively, “Calculations”), Company or Investor Holder (as the case may be) shall submit the disputed determinations or arithmetic calculations (as the case may be) via email or facsimile with confirmation of receipt mail (ai) within two (2) Trading Business Days after receipt of the applicable notice giving rise to such dispute to the Company or Investor the Holder (as the case may be) or (bii) if no notice gave rise to such dispute, at any time after Investor the Holder learned of the circumstances giving rise to such dispute. If Investor the Holder and the Company are unable to agree upon such determination or calculation within two (2) Trading business Days of such disputed determination or arithmetic calculation (as the case may be) being submitted to the Company or Investor of the Holder (as the case may be), then Investor the Company shall, within two (2) Trading Business Days, submit via email or facsimile (a) the disputed Calculation to Unkar Systems Inc. (“Unkar Systems”). Company shall cause Unkar Systems to perform determination of the determinations conversion price, trading price or calculations other price (as the case may be) to an independent, reputable investment banks selected by the company and approved by the Holder or to an independent, outside accountant selected by the Holder that is reasonable acceptable to the Company. The company shall cause at its expense the investment bank or the accountant (as the case may be) to perform the determinations or calculations and notify the Company and Investor the Holder of the results no later than ten (10) Trading Days business days from the time it receives such disputed determinations or calculations (as the case may be). Unkar Systems’ Such investment bank’s or accountant’s determination of or calculation (as the disputed Calculation case may be) shall be binding upon all parties absent demonstrable 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 Company is the losing party, no extension of the Delivery Date shall be granted and Company shall incur all effects for failing to deliver the applicable shares in a timely manner as set forth in the Transaction Documents. Notwithstanding the foregoing, 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 Investor.

Calculation Disputes. Notwithstanding the Arbitration Provisions, in the case of a dispute as to any arithmetic calculation under the Transaction Documents, including without limitation, calculating the Outstanding Balance, Warrant Shares, Exercise Shares (as defined in the Warrant), Delivery Shares (as defined in the Warrant), ) Lender Conversion Price, Lender Conversion Shares (as defined in the Note)) to be delivered, Installment Conversion Price (as defined in and determined pursuant to the Note), Installment Conversion Shares (as defined in the Note), Conversion Factor (as defined in the Note)) to be delivered, Market Price, Conversion Shares, or the VWAP (as defined in the Note) (collectively, “Calculations”), Company or Investor (as the case may be) shall submit the disputed determinations or arithmetic calculations (as the case may be) via facsimile or email or facsimile with confirmation of receipt (a) within two (2) Trading Days after receipt of the applicable notice giving rise to such dispute to Company or Investor (as the case may be) or (b) if no notice gave rise to such dispute, at any time after Investor learned of the circumstances giving rise to such dispute. If Investor and Company are unable to agree upon such determination or calculation within two (2) Trading Days of such disputed determination or arithmetic calculation (as the case may be) being submitted to Company or Investor (as the case may be), then Investor shall, within two (2) Trading Days, submit via email or facsimile the disputed Calculation to Unkar Systems Inc. (“Unkar Systems”)an independent, reputable investment bank or accounting firm selected by Investor. Company shall cause Unkar Systems the investment bank or accounting firm to perform the determinations or calculations (as the case may be) and notify Company and Investor of the results no later than ten (10) Trading Days from the time it receives such disputed determinations or calculations (as the case may be). Unkar Systems’ Such investment bank’s or accounting firm’s determination of the disputed Calculation shall be binding upon all parties absent demonstrable error. Unkar Systems’ The investment banker’s or accounting firm’s 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 Systemsthe investment banker or accounting firm. In the event Company is the losing party, no extension of the Delivery Date shall be granted and Company shall incur all effects for failing to deliver the applicable shares in a timely manner as set forth in the Transaction Documents. Notwithstanding the foregoing, 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 Investor.

Calculation Disputes. Notwithstanding the Arbitration Provisions, in In the case of a dispute as to any arithmetic calculation under the Transaction Documentsdetermination of the Conversion Price (including, including without limitation, calculating any disputed adjustment thereto), the Outstanding Balancetrading price, Warrant Shares, Exercise Shares the closing sale price or fair market value (as defined in the Warrantcase may be), Delivery Shares (as defined in the Warrant), Lender Conversion Price, Lender Conversion Shares (as defined in any reduction or addition of principal balance to the Note), Installment Conversion Price (as defined in the Note), Installment Conversion Shares (as defined in the Note), Conversion Factor (as defined in the Note), Market Price, Conversion Shares, Borrower or the VWAP (as defined in the Note) (collectively, “Calculations”), Company or Investor Holder (as the case may be) shall submit the disputed determinations or arithmetic calculations (as the case may be) via email or facsimile with confirmation of receipt mail (ai) within two (2) Trading Business Days after receipt of the applicable notice giving rise to such dispute to Company the Borrower or Investor the Holder (as the case may be) or (bii) if no notice gave rise to such dispute, at any time after Investor the Holder learned of the circumstances giving rise to such dispute. If Investor the Holder and Company the Borrower are unable to agree upon such determination or calculation within two (2) Trading business Days of such disputed determination or arithmetic calculation (as the case may be) being submitted to Company the Borrower or Investor the Holder (as the case may be), then Investor the Borrower shall, within two (2) Trading Business Days, submit via email or facsimile (a) the disputed Calculation to Unkar Systems Inc. (“Unkar Systems”). Company shall cause Unkar Systems to perform determination of the determinations conversion price, trading price or calculations other price (as the case may be) to an independent, reputable investment bank selected by the Borrower and approved by the Holder or to an independent, outside accountant selected by the Holder that is reasonable acceptable to the Borrower. The Borrower shall cause at its expense the investment bank or the accountant (as the case may be) to perform the determinations or calculations and notify Company the Borrower and Investor the Holder of the results no later than ten (10) Trading Days business days from the time it receives such disputed determinations or calculations (as the case may be). Unkar Systems’ Such investment bank’s or accountant’s determination of or calculation (as the disputed Calculation case may be) shall be binding upon all parties absent demonstrable 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 Company is the losing party, no extension of the Delivery Date shall be granted and Company shall incur all effects for failing to deliver the applicable shares in a timely manner as set forth in the Transaction Documents. Notwithstanding the foregoing, 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 Investor.