Common use of Company’s Election to Pay Interest in Cash or Kind Clause in Contracts

Company’s Election to Pay Interest in Cash or Kind. Subject to the terms and conditions herein, the decision whether to pay interest hereunder in cash, shares of Common Stock or a combination thereof shall be at the sole discretion of the Company. If the Company elects to pay any interest hereunder in shares of Common Stock, the Company shall deliver to the Holder a written notice of its election to pay interest hereunder ten (10) Trading Days prior to the applicable Interest Payment Date either in shares of Common Stock or a combination of Common Stock and cash, and the Interest Share Amount as to the applicable Interest Payment Date and the Interest Notice Period with respect to such payment shall commence as of the date of such notice, provided that the Company may indicate in such notice that the election contained in such notice shall also apply to future Interest Payment Dates until revised by a subsequent notice. After the first five (5) Trading Days of any Interest Notice Period, the Company’s election (whether specific to an Interest Payment Date or continuous) shall be irrevocable as to such Interest Payment Date. Subject to the aforementioned conditions, failure to timely deliver such written notice to the Holder shall be deemed an election by the Company to pay the interest on such Interest Payment Date in cash. At any time that the Company delivers a notice to the Holder of its election to pay the interest in shares of Common Stock, the Company shall timely file a prospectus supplement pursuant to Rule 424 disclosing such election if at such time the Company has an effective Registration Statement that does not otherwise disclosure such election. The aggregate number of shares of Common Stock otherwise issuable to the Holder on an Interest Payment Date shall be reduced by the number of Interest Conversion Shares previously issued to the Holder in connection with such Interest Payment Date.

Company’s Election to Pay Interest in Cash or Kind. Subject to the terms and conditions herein, the decision whether to pay interest hereunder in cash, shares of Common Stock or a combination thereof shall be at the sole discretion of the Company. If the Company elects to pay any interest hereunder in shares of Common Stock, the Company shall deliver to the Holder a written notice of its election to pay interest hereunder ten (10) Trading Days prior to the applicable Interest Payment Date either in shares of Common Stock or a combination of Common Stock and cash, and the Interest Share Amount as to the applicable Interest Payment Date and the Interest Notice Period with respect to such payment shall commence as of the date of such notice, provided that the Company may indicate in such notice that the election contained in such notice shall also apply to future Interest Payment Dates until revised by a subsequent notice. After the first five (5) Trading Days of any Interest Notice Period, the Company’s 's election (whether specific to an Interest Payment Date or continuous) shall be irrevocable as to such Interest Payment Date. Subject to the aforementioned conditions, failure to timely deliver such written notice to the Holder shall be deemed an election by the Company to pay the interest on such Interest Payment Date in cash. At any time that the Company delivers a notice to the Holder of its election to pay the interest in shares of Common Stock, the Company shall timely file a prospectus supplement pursuant to Rule 424 disclosing such election if at such time the Company has an effective Registration Statement that does not otherwise disclosure such election. The aggregate number of shares of Common Stock otherwise issuable to the Holder on an Interest Payment Date shall be reduced by the number of Interest Conversion Shares previously issued to the Holder in connection with such Interest Payment Date.