Common use of Exchange and Cancellation Clause in Contracts

Exchange and Cancellation. On the date hereof, pursuant to Section 3(a)(9) of the Securities Act, the Holder hereby agrees to convey, assign and transfer the Note to the Company in exchange for which the Company agrees to issue the Convertible Note to the Holder and, upon delivery of the Convertible Note to the Holder, the parties shall consummate the Cancellation in accordance herewith. (a) On the date hereof, in exchange for the Note, the Company shall deliver or cause to be delivered to the Holder (or its designee) the Convertible Note. (b) The Convertible Note shall each be issued with the following securities act legend: NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES. (c) The Holder shall deliver or cause to be delivered to the Company (or its designee) the Note (or affidavit of lost warrants, in form provided upon request by the Company and reasonably acceptable to the Holder) as soon as commercially practicable following the date hereof (the “Delivery Date”). Immediately following the delivery of the Convertible Note to the Holder (or its designee), the Holder shall relinquish all rights, title and interest in the Note assign the same to the Company, and the Note shall be cancelled. (d) The parties acknowledge and agree that the Convertible Note shall be issued to the Holder in exchange for the Note without the payment of any additional consideration. (e) Notwithstanding anything herein to the contrary, on or after the date hereof, the Holder may, directly or indirectly, sell or transfer all, or any part, of the Convertible Note to any Person (an “Assignee”).

Exchange and Cancellation. On the date hereof, pursuant to Section 3(a)(9) of the Securities Act, the Holder hereby agrees to convey, assign and transfer the Note Notes to the Company in exchange for which the Company agrees to issue the Convertible Note Rights to the Holder and, upon delivery of the Convertible Note Rights to the Holder, the parties shall consummate the Cancellation in accordance herewith. (a) On the date hereof, in exchange for the NoteNotes, the Company shall deliver or cause to be delivered to the Holder (or its designee) the Convertible NoteRights. (b) The Convertible Note Rights shall each be issued with the following securities act legend: NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES. (c) The Holder shall deliver or cause to be delivered to the Company (or its designee) the Note Notes (or affidavit of lost warrants, in form provided upon request by the Company and reasonably acceptable to the Holder) as soon as commercially practicable following the date hereof (the “Delivery Date”). Immediately following the delivery of the Convertible Note Rights to the Holder (or its designee), the Holder shall relinquish all rights, title and interest in the Note Notes assign the same to the Company, and the Note Notes shall be cancelled. (d) The parties acknowledge and agree that the Convertible Note Rights shall be issued to the Holder in exchange for the Note Notes without the payment of any additional consideration. (e) Notwithstanding anything herein to the contrary, on or after the date hereof, the Holder may, directly or indirectly, sell or transfer all, or any part, of the Convertible Note Rights or Rights Shares to any Person (an “Assignee”).

Exchange and Cancellation. On the date hereof, pursuant to Section 3(a)(9) of the Securities Act, the Holder hereby agrees to convey, assign and transfer the Note Initial Warrants to the Company in exchange for which the Company agrees to issue the Convertible Note Rights to the Holder and, upon delivery of the Convertible Note Rights to the Holder, the parties shall consummate the Cancellation in accordance herewith. (a) On the date hereof, in exchange for the NoteInitial Warrants, the Company shall deliver or cause to be delivered to the Holder (or its designee) the Convertible NoteRights at the address for delivery set forth on the Schedule of Buyers to the Initial Securities Purchase Agreement. (b) The Convertible Note Rights shall each be issued with the following securities act legend: NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES. (c) The Holder shall deliver or cause to be delivered to the Company (or its designee) the Note Warrants (or affidavit of lost warrants, in form provided upon request by the Company and reasonably acceptable to the Holder) as soon as commercially practicable following the date hereof (the “Delivery Date”). Immediately following the delivery of the Convertible Note Rights to the Holder (or its designee), the Holder shall relinquish all rights, title and interest in the Note Warrants and assign the same to the Company, and the Note Warrants shall be cancelled. (d) On or prior to the date hereof, the Company shall satisfy all conditions set forth in Section 7 of the Initial Securities Purchase Agreement (as amended hereby) with respect to the Exchange Documents as if the date hereof was the Closing Date (as defined therein), mutatis mutandis. (e) The parties acknowledge and agree that the Convertible Note Rights shall be issued to the Holder in exchange for the Note Initial Warrant without the payment of any additional consideration. (ef) Notwithstanding anything herein During the period commencing on the date hereof and ending on the earlier of: (i) May 22, 2016, (ii) the occurrence of any Event of Default (as defined in the Notes) or (iii) any breach by the Company of any term of this Agreement or the Rights that is not cured within five (5) Trading Days following delivery of written notice of such breach by the Holder to the contraryCompany, the Holder shall not sell, in any Measurement Period (as defined below) (other than Permitted Shares (as defined below)), more than the sum of (x) the Basic Permitted Amount (as defined below) of Rights Shares for the applicable Measurement Period and (y) any unused Basic Permitted Amount from any prior Measurement Period; provided, that the forgoing restrictions shall not apply to any sale of Right Shares (collectively, the “Permitted Shares”) on any Trading Day at a price equal to or greater than $1.25 per share (subject to adjustment for any stock dividend, stock split, stock combination, recapitalization or other similar transaction after the date hereof). For the avoidance of doubt, the foregoing restrictions solely relate to the Rights Shares and nothing herein shall restrict any other transactions, trading or other actions with respect to other securities of the Company (including, without limitation, any securities issued or issuable upon conversion of the Note). For the purpose of this Agreement, (i) “Basic Permitted Amount” means, with respect to any given Measurement Period, (x) if prior to November 22, 2015, 750,000 Rights Shares or (ii) if on or after November 22, 2015, 1,133,334 Rights Shares, in each case, subject to adjustment for any stock dividend, stock split, stock combination, recapitalization or other similar transaction after the date hereof, and (ii) “Measurement Period” means (x) initially, the Holder maythirty (30) calendar day period commencing on the date hereof and (y) thereafter, directly or indirectly, sell or transfer all, or any part, of each subsequent thirty (30) calendar day period commencing on the Convertible Note to any Person (an “Assignee”)calendar day immediately following the prior Measurement Period.