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 Transaction Documents (each, a “Calculation”), Company or Investor (as the case may be) shall submit any disputed Calculation via email or facsimile with confirmation of receipt (i) within two (2) business days after receipt of the applicable notice giving rise to such dispute to Company or Investor (as the case may be) or (ii) if no notice gave rise to such dispute, at any time after Investor or Company (as the case may be) 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) business days of such disputed Calculation being submitted to Company or Investor (as the case may be), then Investor shall select and submit to Company via email or facsimile the names of three (3) reputable investment banks or accounting firms of regional or national standing (such firms, the “Possible Calculation Dispute Arbiters”), from which Company shall then select one such firm (the “Calculation Dispute Arbiter”) as the Calculation Dispute Arbiter within two (2) business days of the date Investor submits the names of the Possible Calculation Dispute Arbiters to Company. Should Company fail to select the Calculation Dispute Arbiter and provide Investor with notice of such selection within such two (2) business day period, Investor may select the Calculation Dispute Arbiter from the Possible Calculation Dispute Arbiters. Investor shall submit the disputed Calculation to the Calculation Dispute Arbiter via email or facsimile within two (2) business days of the date such Calculation Dispute Arbiter has been chosen pursuant to this Section 8.4. Company shall cause the Calculation Dispute Arbiter to perform the determinations or calculations (as the case may be) and notify Company and Investor of the results no later than ten (10) business days from the time the Calculation Dispute Arbiter receives such disputed Calculations. The Calculation Dispute Arbiter’s determination of the disputed Calculation shall be binding upon all parties absent demonstrable error. The Calculation Dispute Arbiter’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 the Calculation Dispute Arbiter.

Calculation Disputes. Notwithstanding the Arbitration Provisions, in the case of a dispute as to any determination or arithmetic calculation under the Transaction Documents Documents, including without limitation, calculating the Outstanding Balance, Warrant Shares, Exercise Shares (eachas defined in the Warrant), a 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) to be delivered, Market Price, Conversion Shares, or the VWAP (as defined in the Note) (collectively, “CalculationCalculations”), Company or Investor (as the case may be) shall submit any the disputed Calculation determinations or arithmetic calculations (as the case may be) via facsimile or email or facsimile with confirmation of receipt (ia) within two (2) business days Trading Days after receipt of the applicable notice giving rise to such dispute to Company or Investor (as the case may be) or (iib) if no notice gave rise to such dispute, at any time after Investor or Company (as the case may be) 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) business days Trading Days of such disputed Calculation determination or arithmetic calculation (as the case may be) being submitted to Company or Investor (as the case may be), then Investor shall select and submit to Company via email or facsimile the names of three (3) reputable investment banks or accounting firms of regional or national standing (such firmsshall, the “Possible Calculation Dispute Arbiters”), from which Company shall then select one such firm (the “Calculation Dispute Arbiter”) as the Calculation Dispute Arbiter within two (2) business days of the date Investor submits the names of the Possible Calculation Dispute Arbiters to Company. Should Company fail to select the Calculation Dispute Arbiter and provide Investor with notice of such selection within such two (2) business day periodTrading Days, Investor may select the Calculation Dispute Arbiter from the Possible Calculation Dispute Arbiters. Investor shall submit via facsimile the disputed Calculation to the Calculation Dispute Arbiter via email an independent, reputable investment bank or facsimile within two (2) business days of the date such Calculation Dispute Arbiter has been chosen pursuant to this Section 8.4accounting firm selected by Investor. Company shall cause the Calculation Dispute Arbiter 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) business days Trading Days from the time the Calculation Dispute Arbiter it receives such disputed Calculationsdeterminations or calculations (as the case may be). The Calculation Dispute ArbiterSuch investment bank’s or accounting firm’s determination of the disputed Calculation shall be binding upon all parties absent demonstrable error. The Calculation Dispute Arbiterinvestment 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 the Calculation Dispute Arbiterinvestment 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.

Calculation Disputes. Notwithstanding the Arbitration Provisions, in the case of a dispute as to any determination or arithmetic calculation under the Transaction Documents Documents, including without limitation, calculating the Outstanding Balance, Lender Conversion Price, Lender Conversion Shares (eachas defined in the Note) to be delivered, a Installment Conversion Price (as defined in and determined pursuant to the Note), Installment Conversion Shares (as defined in the Note) to be delivered, Market Price, Conversion Shares, or the VWAP (collectively, “CalculationCalculations”), Company or Investor (as the case may be) shall submit any the disputed Calculation determinations or arithmetic calculations (as the case may be) via facsimile or email or facsimile with confirmation of receipt (ia) within two (2) business days Trading Days after receipt of the applicable notice giving rise to such dispute to Company or Investor (as the case may be) or (iib) if no notice gave rise to such dispute, at any time after Investor or Company (as the case may be) 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) business days Trading Days of such disputed Calculation determination or arithmetic calculation (as the case may be) being submitted to Company or Investor (as the case may be), then Investor shall select and submit to Company via email or facsimile the names of three (3) reputable investment banks or accounting firms of regional or national standing (such firms, the “Possible Calculation Dispute Arbiters”), from which Company shall then select one such firm (the “Calculation Dispute Arbiter”) as the Calculation Dispute Arbiter within two (2) business days Trading Days of the date Investor submits the names of the Possible Calculation Dispute Arbiters Arbiter’s to Company. Should Company fail to select the Calculation Dispute Arbiter and provide Investor with notice of such selection within such two (2) business day Trading Day period, Investor may select the Calculation Dispute Arbiter from the Possible Calculation Dispute Arbiters. Investor shall submit the disputed Calculation to the Calculation Dispute Arbiter via email or facsimile within two (2) business days Trading Days of the date such Calculation Dispute Arbiter has been chosen pursuant to this Section 8.4chosen. Company shall cause the Calculation Dispute Arbiter to perform the determinations or calculations (as the case may be) and notify Company and Investor of the results no later than ten (10) business days Trading Days from the time the Calculation Dispute Arbiter it receives such disputed Calculationsdeterminations or calculations (as the case may be). The Calculation Dispute Arbiter’s determination of the disputed Calculation shall be binding upon all parties absent demonstrable error. The Calculation Dispute Arbiter’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 the Calculation Dispute Arbiter. 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.