Common use of Dividends in Cash or in Kind Clause in Contracts

Dividends in Cash or in Kind. Holders shall be entitled to receive, and the Corporation shall pay, cumulative dividends at the rate per share (as a percentage of the Stated Value per share) of 10% per annum (subject to increase pursuant to Section 9(b)), payable quarterly on January 1, April 1, July 1 and October 1, beginning on the first such date after the Original Issue Date and on each Conversion Date (with respect only to Preferred Stock being converted) (each such date, a “Dividend Payment Date”) (if any Dividend Payment Date is not a Trading Day, the applicable payment shall be due on the next succeeding Trading Day) in cash, or at the Corporation’s option, in duly authorized, validly issued, fully paid and non-assessable shares of Common Stock as set forth in this Section 3(a), or a combination thereof (the amount to be paid in shares of Common Stock, the “Dividend Share Amount”). The form of dividend payments to each Holder shall be determined in the following order of priority: (i) if funds are legally available for the payment of dividends and the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date, in cash only; (ii) if funds are legally available for the payment of dividends and the Equity Conditions have been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date, at the sole election of the Corporation, in cash or shares of Common Stock which shall be valued solely for such purpose (A) if not then effectively registered for resale by the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date and (B) if then effectively registered for resale by the Holder, at 100% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; (iii) if funds are not legally available for the payment of dividends and the Equity Conditions have been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date, in shares of Common Stock which shall be valued solely for such purpose (A) if not then effectively registered for resale by the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date and (B) if then effectively registered for resale by the Holder, at 100% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; and (iv) if funds are not legally available for the payment of dividends and the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date, then, at the election of such Holder, (1) such dividends shall accrue to the next Dividend Payment Date, (2) shall be accreted to, and increase, the outstanding Stated Value, or (3) in shares of Common Stock which shall be valued solely for such purpose (A) if not then effectively registered for resale by the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date and (B) if then effectively registered for resale by the Holder, at 100% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date. The Holders shall have the same rights and remedies with respect to the delivery of any such shares as if such shares were being issued pursuant to Section 6. On the Closing Date, after giving effect to the receipt by the Company of the proceeds from the sale of Preferred Stock under the Purchase Agreement, the Corporation shall have notified the Holders whether or not it may legally pay cash dividends as of the Closing Date. The Corporation shall promptly notify the Holders at any time the Corporation shall become able or unable, as the case may be, to legally pay cash dividends. If at any time the Corporation has the right to pay dividends in cash or Common Stock, the Corporation must provide the Holders with at least 20 Trading Days’ notice of its election to pay a regularly scheduled dividend in Common Stock and whether or not a registration statement relating thereto is then effective (the Corporation may indicate in such notice that the election contained in such notice shall continue for later periods until revised by a subsequent notice). Dividends on the Preferred Stock shall be calculated on the basis of a 360-day year, consisting of twelve 30 calendar day periods, shall accrue daily commencing on the Original Issue Date, and shall be deemed to accrue from such date whether or not earned or declared and whether or not there are profits, surplus or other funds of the Corporation legally available for the payment of dividends. Except as otherwise provided herein, if at any time the Corporation pays dividends partially in cash and partially in shares, then such payment shall be distributed ratably among the Holders based upon the number of shares of Preferred Stock held by each Holder on such Dividend Payment Date. Any dividends, whether paid in cash or shares of Common Stock, that are not paid within three Trading Days following a Dividend Payment Date shall continue to accrue and shall entail a late fee, which must be paid in cash, at the rate of 18% per annum or the lesser rate permitted by applicable law (such fees to accrue daily, from the Dividend Payment Date through and including the date of payment). If at any time the Corporation delivers a notice to the Holders of its election to pay the dividends in shares of Common Stock, the Corporation shall timely file a prospectus supplement pursuant to Rule 424 disclosing such election.

Dividends in Cash or in Kind. Holders Subject to Corporation being authorized to pay dividends pursuant to the requirements of the Corporations Act, each Holder shall be entitled to receive, and the Corporation shall pay, cumulative preferential dividends out of funds legally available on the Stated Value represented by such Holder’s Series A Preference Shares at the rate per share (as a percentage of the such Stated Value per shareValue) of 108% per annum (subject to increase pursuant to Section 9(b))annum, payable quarterly semi-annually on January 1, April 1, July 1 June 30 and October 1December 31, beginning on the first such date after the Original Issue Date Date, and on each Conversion Date (with respect only to Preferred Stock Series A Preference Shares being converted) (each such date, a “Dividend Payment Date”) (if any Dividend Payment Date is not a Trading Day, the applicable payment shall be due on the next succeeding Trading Day) in cash, or at the Corporation’s option, in duly authorized, validly issued, fully paid and non-assessable shares of Common Stock as set forth in this Section 3(a)Stock, or a combination thereof thereof, in each case as provided in the next sentence (the amount to be paid in shares of Common Stock, the “Dividend Share Amount”). The form of dividend payments to each Holder shall be determined in the following order of priority: (i) if funds are legally available for the payment of dividends and the Corporation is authorized to pay a dividend under the Corporations Act and any of the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment DateDate (the “Dividend Notice Period”), in cash only; (ii) if funds are legally available for the payment of dividends and the Corporation is authorized to pay a dividend under the Corporations Act and all of the Equity Conditions have been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment DateNotice Period, at the sole election of the Corporation, in cash or shares of Common Stock which shall be valued solely for such purpose (A) if not then effectively registered for resale by the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date and (B) if then effectively registered for resale by the Holder, at 100% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; (iii) if funds are not legally available for the payment of dividends and the Equity Conditions have been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date, in shares of Common Stock which shall be valued solely for such purpose (A) if not then effectively registered for resale by the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date and (B) if then effectively registered for resale by the Holder, at 100% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; and (iviii) if funds are not legally available for the payment of dividends and the Equity Conditions have Corporation is not been met during authorized to pay a dividend under the 20 consecutive Trading Days immediately prior to Corporations Act for the applicable Dividend Payment Datepayment of dividends, then, at the election of such Holder, (1) then such dividends shall accrue to the next Dividend Payment Date, (2) shall be accreted to, and increase, the outstanding Stated Value, or (3) in shares of Common Stock which shall be valued solely for such purpose (A) if not then effectively registered for resale by the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date and (B) if then effectively registered for resale by the Holder, at 100% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date. The Holders shall have the same rights and remedies with respect to the delivery of any such shares as if such shares were being issued pursuant to Section 6. On the Closing Date, after giving effect to the receipt by the Company of the proceeds from the sale of Preferred Stock under the Purchase Agreement, the Corporation shall have notified the Holders whether Dividends may be franked or not it may legally pay cash dividends as of the Closing Date. The Corporation shall promptly notify the Holders at any time the Corporation shall become able or unable, as the case may be, to legally pay cash dividends. If at any time the Corporation has the right to pay dividends in cash or Common Stock, the Corporation must provide the Holders with at least 20 Trading Days’ notice of its election to pay a regularly scheduled dividend in Common Stock and whether or not a registration statement relating thereto is then effective (the Corporation may indicate in such notice that the election contained in such notice shall continue unfranked for later periods until revised by a subsequent notice). Dividends on the Preferred Stock shall be calculated on the basis of a 360-day year, consisting of twelve 30 calendar day periods, shall accrue daily commencing on the Original Issue Date, and shall be deemed to accrue from such date whether or not earned or declared and whether or not there are profits, surplus or other funds of the Corporation legally available for the payment of dividends. Except as otherwise provided herein, if at any time the Corporation pays dividends partially in cash and partially in shares, then such payment shall be distributed ratably among the Holders based upon the number of shares of Preferred Stock held by each Holder on such Dividend Payment Date. Any dividends, whether paid in cash or shares of Common Stock, that are not paid within three Trading Days following a Dividend Payment Date shall continue to accrue and shall entail a late fee, which must be paid in cash, at the rate of 18% per annum or the lesser rate permitted by applicable Australian tax law (such fees to accrue daily, from the Dividend Payment Date through and including the date of payment). If at any time the Corporation delivers a notice to the Holders of its election to pay the dividends in shares of Common Stock, the Corporation shall timely file a prospectus supplement pursuant to Rule 424 disclosing such electionpurposes.

Dividends in Cash or in Kind. Holders shall be entitled to receive, and the Corporation shall pay, cumulative dividends at the rate per share (as a percentage of the Stated Value per share) of 108% per annum (subject to increase pursuant to Section 9(b)), payable quarterly annually on January 1, April 1, July March 1 and October 1of each year, beginning on the first such date after the Original Issue Date March 1, 2007 and on each Conversion Date (with respect only to Preferred Stock being convertedexcept that, if such date is not a Trading Day, the payment date shall be the next succeeding Trading Day) (each such date, a “"Dividend Payment Date”) (if any Dividend Payment Date is not a Trading Day, the applicable payment shall be due on the next succeeding Trading Day") in cash, cash or at the Corporation’s option, in duly authorized, validly issued, fully paid and non-assessable shares of Common Stock as set forth in this Section 3(a), or a combination thereof (the amount to be paid in shares of Common Stock, the “"Dividend Share Amount”"). The form of dividend payments to each Holder shall be determined in the following order of priority: (i) if funds are legally available for the payment of dividends and the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date, in cash only; (ii) if funds are legally available for the payment of dividends and the Equity Conditions have been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date, at the sole election of the Corporation, in cash or shares of Common Stock which shall be valued solely for such purpose (A) if not then effectively registered for resale by the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date and (B) if then effectively registered for resale by Date. The form of dividend payments shall be at the Holder, at 100% discretion of the average of Corporation, provided that the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior Corporation may elect to the Dividend Payment Date; (iii) provide such dividend in Common Stock only if funds are not legally available for the payment of dividends and the Equity Conditions have been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date, in shares of Common Stock which shall be valued solely for such purpose (A) if not then effectively registered for resale by the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date and (B) if then effectively registered for resale by the Holder, at 100% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; and (iv) if funds are not legally available for the payment of dividends and the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date, then, at the election of such Holder, (1) such dividends shall accrue to the next Dividend Payment Date, (2) shall be accreted to, and increase, the outstanding Stated Value, or (3) in shares of Common Stock which shall be valued solely for such purpose (A) if not then effectively registered for resale by the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date and (B) if then effectively registered for resale by the Holder, at 100% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Datemet. The Holders shall have the same rights and remedies with respect to the delivery of any such shares as if such shares were being issued pursuant to Section 6. On the Closing Date, after giving effect to the receipt by the Company of the proceeds from the sale of Preferred Stock under the Purchase Agreement, Date the Corporation shall have notified the Holders whether or not it may legally pay cash dividends as of the Closing Date. The Corporation shall promptly notify the Holders at any time the Corporation shall become able or unable, as the case may be, to legally pay cash dividends. If at any time the Corporation has the right to pay dividends in cash or Common Stock, the Corporation must provide the Holders Holder with at least 20 Trading Days’ ' notice of its election to pay a regularly scheduled dividend in Common Stock and whether or not a registration statement relating thereto is then effective (the Corporation may indicate in such notice that the election contained in such notice shall continue for later periods until revised by a subsequent notice). Dividends on the Preferred Stock shall be calculated on the basis of a 360-day year, consisting of twelve 30 calendar day periods, shall accrue daily commencing on the Original Issue Date, and shall be deemed to accrue from such date whether or not earned or declared and whether or not there are profits, surplus or other funds of the Corporation legally available for the payment of dividends. Except as otherwise provided herein, if at any time the Corporation pays dividends partially in cash and partially in shares, then such payment shall be distributed ratably among the Holders based upon the number of shares of Preferred Stock held by each Holder on such Dividend Payment Date. Any dividends, whether paid in cash or shares of Common Stock, that are not paid within three Trading Days following a Dividend Payment Date shall continue to accrue and shall entail a late fee, which must be paid in cash, at the rate of 18% per annum or the lesser rate permitted by applicable law (such fees to accrue daily, from the Dividend Payment Date through and including the date of payment). If at any time the Corporation delivers a notice to the Holders of its election to pay the dividends in shares of Common Stock, the Corporation shall timely file a prospectus supplement pursuant to Rule 424 disclosing such election.

Dividends in Cash or in Kind. Holders shall be entitled to receive, and the Corporation shall pay, cumulative dividends at the rate per share (as a percentage of the Stated Value per share) of 10% per annum (annum, subject to increase pursuant to Section 9(b10(b)), payable quarterly on January 1March 31, April 1June 30, July 1 September 30 and October 1December 31 of each year, beginning on the first such date after the Original Issue Date June 30, 2012, and on each Conversion Date (with respect only to Preferred Stock being converted) (each such date, a “Dividend Payment Date”) (if any Dividend Payment Date is not a Trading Day, the applicable payment shall be due on the next succeeding Trading Day) in cash, or at the Corporation’s option, in duly authorized, validly issued, fully paid and non-assessable shares of Common Stock as set forth in this Section 3(a), or a combination thereof (the amount to be paid in shares of Common Stock, the “Dividend Share Amount”). The form of dividend payments to each Holder shall be determined in the following order of priority: (i) if funds are legally available for the payment of dividends and the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment DateDate (the “Dividend Notice Period”), in cash only; , (ii) if funds are legally available for the payment of dividends and the Equity Conditions have been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment DateNotice Period, at the sole election of the Corporation, in cash or shares of Common Stock which shall be valued solely for such purpose (A) if not then effectively registered for resale by the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date and (B) if then effectively registered for resale by the Holder, at 100% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; , (iii) if funds are not legally available for the payment of dividends and the Equity Conditions have been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment DateNotice Period, in shares of Common Stock which shall be valued solely for such purpose (A) if not then effectively registered for resale by the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date and (B) if then effectively registered for resale by the Holder, at 100% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; and , (iv) if funds are not legally available for the payment of dividends and the Equity Conditions have not Condition relating to an effective Conversion Shares Registration Statement has been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date, then, at the election of waived by such Holder, (1) as to such dividends shall accrue to the next Dividend Payment DateHolder only, (2) shall be accreted to, and increase, the outstanding Stated Value, or (3) in unregistered shares of Common Stock which shall be valued solely for such purpose (A) if not then effectively registered for resale by the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date Date, and (Bv) if then effectively registered for resale by the Holder, at 100% of the average of the VWAPs funds are not legally available for the 20 consecutive Trading Days ending on payment of dividends and the Trading Day that is immediately prior Equity Conditions have not been met during the Dividend Notice Period, then such dividends shall accrue to the next Dividend Payment Date. The Holders shall have the same rights and remedies with respect to the delivery of any such shares as if such shares were being issued pursuant to Section 6. On the Closing Date, after giving effect to the receipt by the Company of the proceeds from the sale of Preferred Stock under the Purchase Agreement, the Corporation shall have notified the Holders whether or not it may legally pay cash dividends as of the Closing Date. The Corporation shall promptly notify the Holders at any time the Corporation shall become able or unable, as the case may be, to legally pay cash dividends. If at any time the Corporation has the right to pay dividends in cash or Common Stock, the Corporation must provide the Holders with at least 20 Trading Days’ notice of its election to pay a regularly scheduled dividend in Common Stock and whether or not a registration statement relating thereto is then effective (the Corporation may indicate in such notice that the election contained in such notice shall continue for later periods until revised by a subsequent notice). Dividends on the Preferred Stock shall be calculated on the basis of a 360-day year, consisting of twelve 30 calendar day periods, shall accrue daily commencing on the Original Issue Date, and shall be deemed to accrue from such date whether or not earned or declared and whether or not there are profits, surplus or other funds of the Corporation legally available for the payment of dividends. Except as otherwise provided herein, if at any time the Corporation pays dividends partially in cash and partially in shares, then such payment shall be distributed ratably among the Holders based upon the number of shares of Preferred Stock held by each Holder on such Dividend Payment Date. Any dividends, whether paid in cash or shares of Common Stock, that are not paid within three Trading Days following a Dividend Payment Date shall continue to accrue and shall entail a late fee, which must be paid in cash, at the rate of 18% per annum or the lesser rate permitted by applicable law (such fees to accrue daily, from the Dividend Payment Date through and including the date of payment). If at any time the Corporation delivers a notice to the Holders of its election to pay the dividends in shares of Common Stock, the Corporation shall timely file a prospectus supplement pursuant to Rule 424 disclosing such election.

Dividends in Cash or in Kind. Other than in the case of shares of Dividend Payment Preferred Stock, the Holders shall be entitled to receive, and the Corporation shall pay, cumulative dividends at the rate per share (as a percentage of the Stated Value per share) of 108% per annum (subject to increase pursuant to Section 9(b))annum, payable quarterly on January 1, April 1, July 1 and October 1, beginning on the first such date after the Original Issue Date and on each Conversion Date (with respect only to Preferred Stock being convertedexcept that, if such date is not a Trading Day, the payment date shall be the next succeeding Trading Day) (each such date, a “Dividend Payment Date”) in (if any Dividend Payment Date is not a Trading Day, the applicable payment shall be due on the next succeeding Trading Dayi) in cash, or at the Corporation’s option, in (ii) duly authorized, validly issued, fully paid and non-assessable shares of Common Stock as set forth in this Section 3(a), or a combination thereof ) (the amount to be paid in shares of Common Stock, the “Dividend Share Amount”), (iii) duly authorized, validly issued, fully paid and non-assessable shares of Series D Preferred Stock (such shares of Series D Preferred Stock issued in satisfaction of dividends hereunder, the “Dividend Payment Preferred Stock”) or (iv) a combination of (i), (ii) and (iii). The form of dividend payments to each Holder shall be determined in the following order of priority: (i) if funds are legally available for the payment of dividends and the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date, in cash only; (ii) if funds are legally available for the payment of dividends and the Equity Conditions have been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date, at the sole election of the Corporation, in cash or shares of Common Stock which shall be valued solely for such purpose (A) if not then effectively registered for resale by the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date and (B) if then effectively registered for resale by the Holder, at 10095% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; (iii) if funds are not legally available for the payment of dividends and the Equity Conditions have been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date, in shares of Common Stock which shall be valued solely for such purpose (A) if not then effectively registered for resale by the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date and (B) if then effectively registered for resale by the Holder, at 10095% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; (iv) if funds are not legally available for the payment of dividends and the Equity Conditions relating to an effective Conversion Shares Registration Statement has been waived by such Holder, as to such Holder only, in unregistered shares of Common Stock which shall be valued solely for such purpose at 95% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; (v) at the option of the Corporation, regardless of whether or not the “Equity Conditions” are then satisfied, in shares of Dividend Payment Preferred Stock having a Stated Value equal to the aggregate cash value of such dividend payment; and (ivvi) if funds are not legally available for the payment of dividends and the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date, then, at the election of such Holder, (1) then such dividends shall accrue to the next Dividend Payment Date, (2) shall be accreted to, and increase, the outstanding Stated Value, or (3) in shares of Common Stock which shall be valued solely for such purpose (A) if not then effectively registered for resale by the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date and (B) if then effectively registered for resale by the Holder, at 100% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date. The Holders shall have the same rights and remedies with respect to the delivery of any such shares as if such shares were being issued pursuant to Section 6. On the Closing Date, after giving effect to the receipt by the Company of the proceeds from the sale of Preferred Stock under the Purchase Agreement, the Corporation shall have notified the Holders whether or not it may legally pay cash dividends as of the Closing Date. The Corporation shall promptly notify the Holders at any time the Corporation shall become able or unable, as the case may be, to legally pay cash dividends. If at any time the Corporation has the right to pay dividends in cash or Common Stock, the Corporation must provide the Holders with at least 20 Trading Days’ notice of its election to pay a regularly scheduled dividend in Common Stock and whether or not a registration statement relating thereto is then effective (the Corporation may indicate in such notice that the election contained in such notice shall continue for later periods until revised by a subsequent notice). Dividends on the Preferred Stock shall be calculated on the basis of a 360-day year, consisting of twelve 30 calendar day periods, shall accrue daily commencing on the Original Issue Date, and shall be deemed to accrue from such date whether or not earned or declared and whether or not there are profits, surplus or other funds of the Corporation legally available for the payment of dividends. Except as otherwise provided herein, if at any time the Corporation pays dividends partially in cash and partially in shares, then such payment shall be distributed ratably among the Holders based upon the number of shares of Preferred Stock held by each Holder on such Dividend Payment Date. Any dividends, whether paid in cash or shares of Common Stock, that are not paid within three Trading Days following a Dividend Payment Date shall continue to accrue and shall entail a late fee, which must be paid in cash, at the rate of 18% per annum or the lesser rate permitted by applicable law (such fees to accrue daily, from the Dividend Payment Date through and including the date of payment). If at any time the Corporation delivers a notice to the Holders of its election to pay the dividends in shares of Common Stock, the Corporation shall timely file a prospectus supplement pursuant to Rule 424 disclosing such election.Section

Dividends in Cash or in Kind. Holders shall be entitled to receive, and the Corporation Company shall pay, cumulative dividends at the rate per share (as a percentage of the Stated Value per share) of 108% per annum (subject to increase pursuant to Section 9(b)), payable quarterly on January 1, April 1, July 1 and October 1, beginning on the first such date after the Original Issue Date Date, on each Full Forced Conversion Date, on each Limited Forced Conversion Date, and on each Conversion Date (with respect only to shares of Series B Preferred Stock being converted) (each such date, a “"Dividend Payment Date”") (if any Dividend Payment Date is not a Trading Day, the applicable payment shall be due on the next succeeding Trading Day) in cash, or at the Corporation’s Company's option, following Shareholder Approval (including, for the avoidance of doubt, any Shareholder Approval that may be required in connection with (A) Nasdaq Listing Rule 5635 in connection with issuances of Common Stock equal to or in excess of 20% of the number of shares of Common Stock outstanding, or voting power equal to in excess of 20% of the voting power outstanding, or (b) dividend payments to Nasdaq Insiders to comply with Nasdaq Listing Rule 5635(c)), in duly authorized, validly issued, fully paid and non-assessable shares of Common Stock as set forth in this Section 3(a), or a combination thereof (the dollar amount to be paid in shares of Common Stock, the “"Dividend Share Amount”"). The form of dividend payments to each Holder shall be determined in the following order of priority: (i) if funds are legally available for the payment of dividends and the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment DateDate (the "Dividend Notice Period"), in cash only; , (ii) if funds are legally available for the payment of dividends and the Equity Conditions have been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment DateNotice Period, at the sole election of the CorporationCompany, in cash or shares of Common Stock (following Shareholder Approval), which shall be valued solely for such purpose (A) if not then effectively registered for resale by the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date and (B) if then effectively registered for resale by the HolderConversion Rate, at 100% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; (iii) if funds are not legally available for the payment of dividends and the Equity Conditions have been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment DateNotice Period, in shares of Common Stock (following Shareholder Approval), which shall be valued solely for such purpose at the Dividend Conversion Rate, (Aiv) if funds are not then effectively registered legally available for resale the payment of dividends and the Equity Condition relating to an effective Conversion Shares Registration Statement has been waived by the such Holder, as to such Holder only, in unregistered shares of Common Stock (following Shareholder Approval) which shall be valued at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date Conversion Rate, and (B) if then effectively registered for resale by the Holder, at 100% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; and (ivv) if funds are not legally available for the payment of dividends and the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment DateNotice Period, then, at the election of such Holder, (1) such dividends shall accrue to the next Dividend Payment Date, (2) Date or shall be accreted to, and increase, the outstanding Stated Value. In addition, or (3) as a condition to paying dividends in shares of Common Stock, as to such Dividend Payment Date, prior to such Dividend Notice Period (but not more than five (5) Trading Days prior to the commencement of such Dividend Notice Period), the Company shall have delivered to each Holder's account with The Depository Trust Company a number of shares of Common Stock which shall to be valued solely applied against such Dividend Share Amount equal to the quotient of (x) the applicable Dividend Share Amount divided by (y) the Dividend Conversion Rate, assuming for such purpose (A) if not then effectively registered for resale by purposes that the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on Dividend Payment Date is the Trading Day that is immediately prior to the Dividend Payment Date and (B) if then effectively registered for resale by the Holder, at 100% commencement of the average of Dividend Notice Period (the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the "Dividend Payment DateConversion Shares"). The Holders shall have the same rights and remedies with respect to the delivery of any such shares as if such shares were being issued pursuant to Section 6. On the Closing Date, after giving effect to the receipt by the Company of the proceeds from the sale of Preferred Stock under the Purchase Agreement, the Corporation shall have notified the Holders whether or not it may legally pay cash dividends as of the Closing Date. The Corporation shall promptly notify the Holders at any time the Corporation shall become able or unable, as the case may be, to legally pay cash dividends. If at any time the Corporation has the right to pay dividends in cash or Common Stock, the Corporation must provide the Holders with at least 20 Trading Days’ notice of its election to pay a regularly scheduled dividend in Common Stock and whether or not a registration statement relating thereto is then effective (the Corporation may indicate in such notice that the election contained in such notice shall continue for later periods until revised by a subsequent notice). Dividends on the Preferred Stock shall be calculated on the basis of a 360-day year, consisting of twelve 30 calendar day periods, shall accrue daily commencing on the Original Issue Date, and shall be deemed to accrue from such date whether or not earned or declared and whether or not there are profits, surplus or other funds of the Corporation legally available for the payment of dividends. Except as otherwise provided herein, if at any time the Corporation pays dividends partially in cash and partially in shares, then such payment shall be distributed ratably among the Holders based upon the number of shares of Preferred Stock held by each Holder on such Dividend Payment Date. Any dividends, whether paid in cash or shares of Common Stock, that are not paid within three Trading Days following a Dividend Payment Date shall continue to accrue and shall entail a late fee, which must be paid in cash, at the rate of 18% per annum or the lesser rate permitted by applicable law (such fees to accrue daily, from the Dividend Payment Date through and including the date of payment). If at any time the Corporation delivers a notice to the Holders of its election to pay the dividends in shares of Common Stock, the Corporation shall timely file a prospectus supplement pursuant to Rule 424 disclosing such election.

Dividends in Cash or in Kind. Holders shall be entitled to receive, and the Corporation shall pay, cumulative dividends at the rate per share (as a percentage of the Stated Value per share) of 108% per annum (subject to increase pursuant to Section 9(b)), payable quarterly on January 1, April 1, July 1 and October 1, beginning on the first such date after the Original Issue Date and on each Conversion Date (with respect only to Preferred Stock being converted) (each such date, a “Dividend Payment Date”) (if any Dividend Payment Date is not a Trading Day, the applicable payment shall be due on the next succeeding Trading Day) in cash, or at the Corporation’s option, subject to Shareholder Approval, in duly authorized, validly issued, fully paid and non-assessable shares of Common Stock as set forth in this Section 3(a), or a combination thereof (the dollar amount to be paid in shares of Common Stock, the “Dividend Share Amount”). The form of dividend payments to each Holder shall be determined in the following order of priority: (i) if funds are legally available for the payment of dividends and the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment DateDate (the “Dividend Notice Period”), in cash only; , (ii) if funds are legally available for the payment of dividends and the Equity Conditions have been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment DateNotice Period, at the sole election of the Corporation, in cash or shares of Common Stock (subject to Shareholder Approval), which shall be valued solely for such purpose (A) if not then effectively registered for resale by the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date and (B) if then effectively registered for resale by the HolderConversion Rate, at 100% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; (iii) if funds are not legally available for the payment of dividends and the Equity Conditions have been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment DateNotice Period, in shares of Common Stock (subject to Shareholder Approval), which shall be valued solely for such purpose at the Dividend Conversion Rate, (Aiv) if funds are not then effectively registered legally available for resale the payment of dividends and the Equity Condition relating to an effective Conversion Shares Registration Statement has been waived by the such Holder, as to such Holder only, in unregistered shares of Common Stock (subject to Shareholder Approval) which shall be valued at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date Conversion Rate, and (B) if then effectively registered for resale by the Holder, at 100% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; and (ivv) if funds are not legally available for the payment of dividends and the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment DateNotice Period, then, at the election of such Holder, (1) such dividends shall accrue to the next Dividend Payment Date, (2) Date or shall be accreted to, and increase, the outstanding Stated Value. In addition, or (3) as a condition to paying dividends in shares of Common Stock, as to such Dividend Payment Date, prior to such Dividend Notice Period (but not more than five (5) Trading Days prior to the commencement of such Dividend Notice Period), the Corporation shall have delivered to each Holder’s account with The Depository Trust Company a number of shares of Common Stock which shall to be valued solely applied against such Dividend Share Amount equal to the quotient of (x) the applicable Dividend Share Amount divided by (y) the Dividend Conversion Rate, assuming for such purpose (A) if not then effectively registered for resale by purposes that the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on Dividend Payment Date is the Trading Day that is immediately prior to the Dividend Payment Date and (B) if then effectively registered for resale by the Holder, at 100% commencement of the average of Dividend Notice Period (the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the “Dividend Payment DateConversion Shares”). The Holders shall have the same rights and remedies with respect to the delivery of any such shares as if such shares were being issued pursuant to Section 6. On the Closing Date, after giving effect to the receipt by the Company of the proceeds from the sale of Preferred Stock under the Purchase Agreement, the Corporation shall have notified the Holders whether or not it may legally pay cash dividends as of the Closing Date. The Corporation shall promptly notify the Holders at any time the Corporation shall become able or unable, as the case may be, to legally pay cash dividends. If at any time the Corporation has the right to pay dividends in cash or Common Stock, the Corporation must provide the Holders with at least 20 Trading Days’ notice of its election to pay a regularly scheduled dividend in Common Stock and whether or not a registration statement relating thereto is then effective (the Corporation may indicate in such notice that the election contained in such notice shall continue for later periods until revised by a subsequent notice). Dividends on the Preferred Stock shall be calculated on the basis of a 360-day year, consisting of twelve 30 calendar day periods, shall accrue daily commencing on the Original Issue Date, and shall be deemed to accrue from such date whether or not earned or declared and whether or not there are profits, surplus or other funds of the Corporation legally available for the payment of dividends. Except as otherwise provided herein, if at any time the Corporation pays dividends partially in cash and partially in shares, then such payment shall be distributed ratably among the Holders based upon the number of shares of Preferred Stock held by each Holder on such Dividend Payment Date. Any dividends, whether paid in cash or shares of Common Stock, that are not paid within three Trading Days following a Dividend Payment Date shall continue to accrue and shall entail a late fee, which must be paid in cash, at the rate of 18% per annum or the lesser rate permitted by applicable law (such fees to accrue daily, from the Dividend Payment Date through and including the date of payment). If at any time the Corporation delivers a notice to the Holders of its election to pay the dividends in shares of Common Stock, the Corporation shall timely file a prospectus supplement pursuant to Rule 424 disclosing such election.

Dividends in Cash or in Kind. Holders shall be entitled to receive, and the Corporation shall paypay through the ten-year anniversary of the applicable Original Issue Date, cumulative dividends at the rate per share (as a percentage of the Stated Value per share) of 1017.38% per annum (subject to increase pursuant to Section 9(b))annum, payable quarterly semi-annually on January 1, April 1, July 1 15 and October 115, beginning on the first such date after the applicable Original Issue Date and on each Conversion Date (with respect only to Preferred Stock being converted) (each such date, a “Dividend Payment Date”) (if any Dividend Payment Date is not a Trading Day, the applicable payment shall be due on the next succeeding Trading Day) in cash, or at the Corporation’s option, in duly authorized, validly issued, fully paid and non-assessable shares of Common Stock as set forth in this Section 3(a), or a combination thereof (the dollar amount to be paid in shares of Common Stock, the “Dividend Share Amount”) provided, however, upon the conversion of Preferred Stock prior to the ten-year anniversary of the applicable Original Issue Date, the Corporation shall also pay to the Holders of the Preferred Stock so converted cash, or at the Corporation’s option, in duly authorized, validly issued, fully paid and non-assessable shares of Common Stock as set forth in this Section 3(a), or a combination thereof, with respect to the Preferred Stock so converted in an amount equal to $1,738 per $1,000 of Stated Value of the Preferred Stock, less the amount of all prior semi-annual dividends paid on such converted Preferred Stock before the relevant Conversion Date (the “Make-Whole Payment”). The form of dividend payments and Make-Whole Payments to each Holder shall be determined in the following order of priority: (i) if funds are legally available for the payment of dividends and the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment DateDate (the “Dividend Notice Period”), in cash only; , (ii) if funds are legally available for the payment of dividends and the Equity Conditions have been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment DateNotice Period, at the sole election of the Corporation, in cash or and/or shares of Common Stock which shall be valued solely for such purpose (A) if not then effectively registered for resale by the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date and (B) if then effectively registered for resale by the HolderConversion Rate, at 100% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; (iii) if funds are not legally available for the payment of dividends and the Equity Conditions have been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment DateNotice Period, in shares of Common Stock which shall be valued solely for such purpose (A) if not then effectively registered for resale by the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date and (B) if then effectively registered for resale by the HolderConversion Rate, at 100% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; and (iv) if funds are not legally available for the payment of dividends and the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment DateNotice Period, then, at the election of such Holder, (1) such dividends shall accrue to the next Dividend Payment Date, (2) Date or shall be accreted to, and increase, the outstanding Stated Value. If the Corporation will pay any dividend in the form of cash, or (3) in shares of Common Stock which it shall be valued solely for such purpose (A) if not then effectively registered for resale by the Holder, at 90% provide each Holder with notice of the average same not later than the first day of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date and (B) if then effectively registered for resale by the Holder, at 100% month of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date. The Holders shall have the same rights and remedies with respect to the delivery of any such shares as if such shares were being issued pursuant to Section 6. On the Closing Date, after giving effect to the receipt by the Company of the proceeds from the sale of Preferred Stock under the Purchase Agreement, the Corporation shall have notified the Holders whether or not it may legally pay cash dividends as of the Closing Date. The Corporation shall promptly notify the Holders at any time the Corporation shall become able or unable, as the case may be, to legally pay cash dividends. If at any time the Corporation has the right to pay dividends in cash or Common Stock, the Corporation must provide the Holders with at least 20 Trading Days’ notice of its election to pay a regularly scheduled dividend in Common Stock and whether or not a registration statement relating thereto is then effective (the Corporation may indicate in such notice that the election contained in such notice shall continue for later periods until revised by a subsequent notice). Dividends on the Preferred Stock shall be calculated on the basis of a 360-day year, consisting of twelve 30 calendar day periods, shall accrue daily commencing on the Original Issue Date, and shall be deemed to accrue from such date whether or not earned or declared and whether or not there are profits, surplus or other funds of the Corporation legally available for the payment of dividends. Except as otherwise provided herein, if at any time the Corporation pays dividends partially in cash and partially in shares, then such payment shall be distributed ratably among the Holders based upon the number of shares of Preferred Stock held by each Holder on such Dividend Payment Date. Any dividendsFor the avoidance of doubt, whether paid in cash or shares the total amount of Common Stock, that are not paid within three Trading Days following a Dividend dividends and any Make-Whole Payment Date shall continue to accrue and shall entail a late fee, which must be paid in cash, at the rate of 18% per annum or the lesser rate permitted payable by applicable law (such fees to accrue daily, from the Dividend Payment Date through and including the date of payment). If at any time the Corporation delivers a notice to the Holders of its election to pay the dividends in shares of Common Stock, the Corporation shall timely file a prospectus supplement pursuant to Rule 424 disclosing such electionthis Section 3(a) shall not exceed $1,738 per $1,000 of Stated Value of the Preferred Stock.

Dividends in Cash or in Kind. Holders From and after the Original Issue Date, the Holder of each share of Preferred Stock shall be entitled to receive, and the Corporation shall pay, receive cumulative dividends at the rate per share (as a percentage of the Stated Value per of such share) of 10% six and one-half percent (6.50%) per annum (subject to increase pursuant to Section 9(b))annum, payable quarterly in arrears on January 1March 15, April 1June 15, July 1 September 15 and October 1December 15 of each calendar year, beginning on the first such date after the applicable Original Issue Date and on each Conversion Date (with respect only to Preferred Stock being converted) (each such date, a “Dividend Payment Date”) (); provided that if any Dividend Payment Date is not a Trading Business Day, then (x) the applicable payment shall be due on the next succeeding Trading Business Day; (y) no interest or additional dividends will accrue as a result thereof; and (z) for purposes of interpreting this Certificate of Designations, if paid in cashaccordance with clause (x), or such payment will be deemed to have been paid on such Dividend Payment Date, to the Holder of such share as of the Close of Business on the immediately preceding March 15, June 15, September 15 and December 15, respectively (each, a “Regular Record Date”). Any such payment may be made at the Corporation’s optionoption (as determined by the Board of Directors) (1) in cash paid from legally available funds, in (2) by issuing duly authorized, validly issued, fully paid and non-assessable shares of Common Preferred Stock as set forth in this Section 3(a), or a combination thereof (having an aggregate initial Stated Value equal to the amount to be paid of the payment being made in shares of Common StockPreferred Stock (provided, the “Dividend Share Amount”). The form of dividend payments to each Holder shall be determined in the following order of priority: (i) if funds are legally available for the payment of dividends and the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date, in cash only; (ii) if funds are legally available for the payment of dividends and the Equity Conditions have been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Datethat, at the sole election Corporation’s election, in lieu of issuing new shares of Preferred Stock pursuant to this clause (2), the Corporation may increase the Stated Value of each share of Preferred Stock by the amount of the Corporation, in cash or shares of Common Stock which shall be valued solely for such purpose (A) if not then effectively registered for resale by the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date and (B) if then effectively registered for resale by the Holder, at 100% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; (iii) if funds are not legally available for the payment of dividends and the Equity Conditions have been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date, being made in shares of Common Stock Preferred Stock, in which shall be valued solely for such purpose case (Ax) if not then effectively registered for resale by the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending Corporation may place any applicable notations on the Trading Day that is immediately prior to the Dividend Payment Date certificates representing such shares and (By) if then effectively registered for resale purposes of interpreting this Certificate of Designations, such amount will be deemed to have been paid by the Holder, at 100% issuing shares of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; and (iv) if funds are not legally available for the payment of dividends and the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date, then, at the election of such Holder, (1) such dividends shall accrue to the next Dividend Payment Date, (2) shall be accreted to, and increase, the outstanding Stated ValuePreferred Stock), or (3) in shares by any combination of Common Stock which shall be valued solely for such purpose clause (A1) if not then effectively registered for resale by the Holder, at 90% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day and (2) above; provided that is immediately prior to the Dividend Payment Date and (B) if then effectively registered for resale by the Holder, at 100% of the average of the VWAPs for the 20 consecutive Trading Days ending extent not paid on the Trading Day that is immediately prior to the Dividend Payment Date. The Holders , dividends on any share of Preferred Stock shall have accumulate from the same rights applicable Dividend Payment Date whether or not declared by the Board of Directors and remedies with respect to the delivery of any such shares as if such shares were being issued shall remain accumulated until paid pursuant hereto or converted pursuant to Section 6. On the Closing Date, after giving effect to the receipt by the Company of the proceeds from the sale of Preferred Stock under the Purchase Agreement, the Corporation shall have notified the Holders whether or not it may legally pay cash All accumulated dividends as of the Closing Date. The Corporation shall promptly notify the Holders at any time the Corporation shall become able or unable, as the case may be, to legally pay cash dividends. If at any time the Corporation has the right to pay dividends in cash or Common Stock, the Corporation must provide the Holders with at least 20 Trading Days’ notice of its election to pay a regularly scheduled dividend in Common Stock and whether or not a registration statement relating thereto is then effective (the Corporation may indicate in such notice that the election contained in such notice shall continue for later periods until revised by a subsequent notice). Dividends on the Preferred Stock shall be calculated prior and in preference to any dividend on the basis of a 360-day year, consisting of twelve 30 calendar day periods, shall accrue daily commencing on the Original Issue Date, any Junior Securities and shall be deemed to accrue from such date whether or not earned or fully declared and whether paid before any dividends are declared and paid, or not there any other distributions or redemptions are profitsmade, surplus on any Junior Securities other than to (i) declare or pay any dividend or distribution payable on the Common Stock or any other funds of the Corporation legally available for the payment of dividends. Except as otherwise provided herein, if at any time the Corporation pays dividends partially in cash and partially in shares, then such payment shall be distributed ratably among the Holders based upon the number of shares of Preferred Stock held by each Holder on such Dividend Payment Date. Any dividends, whether paid in cash or shares of Common Stock, that are not paid within three Trading Days following a Dividend Payment Date shall continue to accrue and shall entail a late fee, which must be paid in cash, at the rate of 18% per annum or the lesser rate permitted by applicable law (such fees to accrue daily, from the Dividend Payment Date through and including the date of payment). If at any time the Corporation delivers a notice to the Holders of its election to pay the dividends Junior Securities in shares of Common StockStock or any other Junior Securities, (ii) purchases of Common Stock or other Junior Securities pursuant to a contractually binding requirement to buy Common Stock or other Junior Securities existing as of the last Dividend Payment Date for which all accumulated and unpaid dividends on the Preferred Stock were paid in accordance with this Certificate of Designations, including under a contractually binding stock repurchase plan, (iii) repurchase Common Stock held by directors, officers, employees or consultants of the Corporation shall timely file a prospectus supplement or its Subsidiaries upon termination of their employment or services pursuant to Rule 424 disclosing agreements providing for such electionrepurchase and approved by the Board of Directors, (iv) purchases of fractional interests in shares of Common Stock or other Junior Securities pursuant to the conversion or exchange provisions of such shares of Common Stock or other Junior Securities or any securities exchangeable for or convertible into shares of Common Stock or other Junior Securities, (v) any dividends or distributions of rights or Common Stock or Junior Securities in connection with a shareholders’ rights plan or any redemption or repurchase of rights pursuant to any shareholders’ rights plan, and (vi) the exchange or conversion of Junior Securities for or into other Junior Securities and the payment of cash in lieu of fractional shares.

Dividends in Cash or in Kind. Holders shall be entitled to receive, and the Corporation shall pay, cumulative dividends at the rate per share (as a percentage of the Stated Value per share) of 6% per annum, which rate shall increase by 1% on the date of each anniversary of the First Closing Date up to a maximum rate of 10% per annum (subject to increase pursuant to Section 9(b)), annum. Such dividends shall be payable quarterly semi-annually on January 1, April 1, July 1 June 30 and October 1December 31, beginning on the first such date after the Original Issue Date and on each Conversion Date (with respect only to Series C Preferred Stock being converted) (each such date, a “Dividend Payment Date”) (if any Dividend Payment Date is not a Trading Day, the applicable payment shall be due on the next succeeding Trading Day) in cashcash out of legally available funds, or at the Corporation’s optionoption and only after Shareholder Approval has been obtained, in duly authorized, validly issued, fully paid and non-assessable shares of Common Stock as set forth in this Section 3(a), or a combination thereof (the dollar amount to be paid in shares of Common Stock, the “Dividend Share Amount”). The form of dividend payments to each Holder shall be determined in the following order of priority: (i) if funds are legally available for the payment of dividends and the Equity Conditions have not been met during the 20 5 consecutive Trading Days immediately prior to the applicable Dividend Payment DateDate or Conversion Date (the “Dividend Notice Period”), in cash only; , (ii) if funds are legally available for the payment of dividends and the Equity Conditions have been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment DateNotice Period, at the sole election of the Corporation, in any combination of cash or shares of Common Stock which shall be valued solely for such purpose (A) if not then effectively registered for resale by the Holder, at 9080% of the average of the VWAPs for the 20 5 consecutive Trading Days ending on the Trading Day that is immediately prior to the applicable Dividend Payment Date and (B) if then effectively registered for resale by the Holderor Conversion Date, at 100% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Date; (iii) if funds are not legally available for the payment of dividends and the Equity Conditions have been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment DateNotice Period, in shares of Common Stock which shall be valued solely for such purpose (A) if not then effectively registered for resale by the Holder, at 9080% of the average of the VWAPs for the 20 5 consecutive Trading Days ending on the Trading Day that is immediately prior to the applicable Dividend Payment Date and or Conversion Date, (Biv) if then effectively registered funds are not legally available for resale the payment of dividends and the Equity Condition relating to an effective Conversion Shares Registration Statement has been waived by the such Holder, as to such Holder only, in unregistered shares of Common Stock (but only if Shareholder Approval has been obtained) which shall be valued solely for such purpose at 10080% of the average of the VWAPs for the 20 5 consecutive Trading Days ending on the Trading Day that is immediately prior to the applicable Dividend Payment Date or Conversion Date; , and (ivv) if funds are not legally available for the payment of dividends and the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment DateNotice Period, then, at the election of such Holder, (1) such dividends shall accrue to the next applicable Dividend Payment Date, (2) or Conversion Date or shall be accreted to, and increase, the outstanding Stated Value, . In the event the Corporation notifies the Holders that it will pay dividends in whole or (3) in part in shares of Common Stock which shall based on its good faith and reasonable belief that the Corporation it will be valued solely for such purpose (A) if not then effectively registered for resale by in compliance with the HolderEquity Conditions during the Dividend Notice Period, at 90% and the Corporation determines on or before the first day of the average of dividend notice period that it will not be in compliance with the VWAPs for Equity Conditions, it shall so notify the 20 consecutive Trading Days ending on the Trading Day that is immediately prior Holders and each holder may elect to the Dividend Payment Date and (B) if then effectively registered for resale by the Holder, at 100% of the average of the VWAPs for the 20 consecutive Trading Days ending on the Trading Day that is immediately prior to the Dividend Payment Datereceive Common Stock or cash. The Holders shall have the same rights and remedies with respect to the delivery of any such shares as if such shares were being issued pursuant to Section 6. On the Closing Date, after giving effect to the receipt by the Company of the proceeds from the sale of Preferred Stock under the Purchase Agreement, the Corporation shall have notified the Holders whether or not it may legally pay cash dividends as of the Closing Date. The Corporation shall promptly notify the Holders at any time the Corporation shall become able or unable, as the case may be, to legally pay cash dividends. If at any time the Corporation has the right to pay dividends in cash or Common Stock, the Corporation must provide the Holders with at least 20 Trading Days’ notice of its election to pay a regularly scheduled dividend in Common Stock and whether or not a registration statement relating thereto is then effective (the Corporation may indicate in such notice that the election contained in such notice shall continue for later periods until revised by a subsequent notice). Dividends on the Preferred Stock shall be calculated on the basis of a 360-day year, consisting of twelve 30 calendar day periods, shall accrue daily commencing on the Original Issue Date, and shall be deemed to accrue from such date whether or not earned or declared and whether or not there are profits, surplus or other funds of the Corporation legally available for the payment of dividends. Except as otherwise provided herein, if at any time the Corporation pays dividends partially in cash and partially in shares, then such payment shall be distributed ratably among the Holders based upon the number of shares of Preferred Stock held by each Holder on such Dividend Payment Date. Any dividends, whether paid in cash or shares of Common Stock, that are not paid within three Trading Days following a Dividend Payment Date shall continue to accrue and shall entail a late fee, which must be paid in cash, at the rate of 18% per annum or the lesser rate permitted by applicable law (such fees to accrue daily, from the Dividend Payment Date through and including the date of payment). If at any time the Corporation delivers a notice to the Holders of its election to pay the dividends in shares of Common Stock, the Corporation shall timely file a prospectus supplement pursuant to Rule 424 disclosing such election.