Common use of Exercise of Share Issuance Rights Clause in Contracts

Exercise of Share Issuance Rights. On any date that is not more than forty-five (45) days prior to any Interest Payment Date, the Borrower may deliver to each of the Lenders notice by electronic mail or facsimile (a “Share Issuance Notice”) of its intention to issue Freely Tradeable Shares pursuant to the provisions of this Exhibit in order to satisfy interest due on such Interest Payment Date under Section 2.7 of the Agreement by delivering such Freely Tradeable Shares to the Lenders; provided, however, that the Borrower may not deliver a Share Issuance Notice (a) during the occurrence of a Delisting Event, (b) at any time following such time as the Borrower has delivered (or is obligated to deliver) a Major Transaction/Organic Change Notice in respect of a Major Transaction, (c) at any time following the occurrence, and during the continuance, of an Event of Default or a Default, (d) from and after a Withholding Date, (e) if, as of the close of trading on the immediately preceding Trading Day, the Market Capitalization is less than $200,000,000, (g) unless all material information regarding the Borrower (including any material information that may be included in, or reflected by, the Share Issuance Notice) has been publicly disclosed in a report filed pursuant to the Exchange Act or has been otherwise publicly disclosed in a manner calculated to reach the securities marketplace through one of the Borrower’s recognized channels of distribution, (h) unless (X) the Registration Statement is effective and available for the sale of at least all of the Registrable Securities and, after giving effect to the resale of all shares of Common Stock issued pursuant to such Share Issuance Notice (and assuming such shares are sold pursuant to the Registration Statement and that the Volume Weighted Average Price for each Trading Day during each applicable Issuance Period will equal the Floor Price), the Registration Statement shall continue to register a sufficient number of Registrable Securities to cover the resale of all of the Purchased Shares and all of the Warrant Shares issuable upon exercise of the Warrants, or (Y) all shares of Common Stock issuable pursuant to such Share Issuance Notice are eligible for resale by the Lenders without limitation or restriction, including any volume limitations, under state or Federal securities laws pursuant to Rule 144 under the Securities Act, (i) unless the Borrower is in compliance with the “current public information” requirement of Rule 144(c) under the Securities Act, (j) if the transfer agent for the Common Stock is not participating in DTC’s Fast Automated Securities Transfer Program, or (k) if any Lender, after consultation with counsel of its choosing, advises the Borrower that the receipt or resale of Common Stock issued or issuable hereunder would result in such Lender being deemed an “underwriter” within the meaning of Section 2(11) under the Securities Act (collectively, the “Share Issuance Conditions”). Subject to such provisions, a Share Issuance Notice shall be irrevocable, shall specify (I) a floor price (the “Floor Price”) that is no less than $10.00 (subject to adjustment for any Stock Event occurring after the Agreement Date), (II) the aggregate Interest Amount subject to such Share Issuance Notice, in each case, broken out by the amount due each Lender (such amount, a “Share Issuance Amount”), (III) the Interest Payment Date to which such Share Issuance Notice applies, and (IV) the Issuance Period. If the Lenders do not confirm receipt of the Share Issuance Notice within three (3) Trading Days of the delivery thereof, the Borrower shall thereafter use its reasonable best efforts to confirm (by email, telephonically or otherwise) such receipt, and in no event shall the Issuance Period commence unless and until the Lenders have confirmed such receipt.

Exercise of Share Issuance Rights. On any date that is not more than forty-five (45) days Subject to the provisions of this Section 2.11, upon written notice given at least 10 Trading Days prior to any Interest Payment Datethe applicable date on which interest would otherwise be due under Section 2.7 hereunder, the Borrower may deliver to each of the Lenders notice by electronic mail or facsimile (a “Share Issuance Notice”) of its intention to issue Freely Tradeable Shares cause Common Share Issuances to be made pursuant to the provisions of this Exhibit Section 2.11 in order to satisfy satisfaction of payment of interest due under the Notes on such Interest Payment Date under Section 2.7 of the Agreement by delivering such Freely Tradeable Shares to the LendersDate; provided, however, that the Borrower may not deliver a Share Issuance Notice (ai) during the occurrence of a Delisting Event, (b) at any time following such time as the Borrower has delivered (or is obligated to deliver) a Major Transaction/Organic Change Notice in respect of a Major Transaction, (c) at any time following the occurrence, upon and during the continuance, continuation of an Event of Default or a Default(as defined in Section 5.4), (d) from and after a Withholding Date, (e) if, as of the close of trading on the immediately preceding Trading Day, the Market Capitalization is less than $200,000,000, (g) unless all material information regarding the Borrower (including any material information that may be included in, or reflected by, the Share Issuance Notice) has been publicly disclosed in a report filed pursuant to the Exchange Act or has been otherwise publicly disclosed in a manner calculated to reach the securities marketplace through one of the Borrower’s recognized channels of distribution, (h) unless (X) the Registration Statement is effective and available for the sale of at least all of the Registrable Securities and, after giving effect to the resale of all shares of Common Stock issued pursuant to such Share Issuance Notice (and assuming such shares are sold pursuant to the Registration Statement and that the Volume Weighted Average Price for each Trading Day during each applicable Issuance Period will equal the Floor Price), the Registration Statement shall continue to register a sufficient number of Registrable Securities to cover the resale of all of the Purchased Shares and all of the Warrant Shares issuable upon exercise of the Warrants, or (Y) all shares of Common Stock issuable pursuant to such Share Issuance Notice are eligible for resale by the Lenders without limitation or restriction, including any volume limitations, under state or Federal securities laws pursuant to Rule 144 under the Securities Act, (iii) unless the Borrower is in compliance has, at the time of such issuance, complied with the “current public information” requirement of Rule 144(c) under the Securities Act, (jiii) during the occurrence of a Delisting Event (as defined below), (iv) at any time following receipt of a Major Transaction Notice, (iv) unless all material information regarding the Borrower has been publicly disclosed in reports filed pursuant to the Exchange Act, (v) if, as of the close of business on the Trading Day preceding the date of the Share Issuance Notice, the Borrower’s market capitalization is less than the Applicable Market Capitalization Amount (as defined below) or, (vi) if the transfer agent closing bid price for the Borrower’s Common Stock is not participating in DTC’s Fast Automated Securities Transfer Program, or (k) if any Lender, after consultation with counsel Shares as of its choosing, advises the Borrower that last Trading Day preceding the receipt or resale date of Common Stock issued or issuable hereunder would result in such Lender being deemed an “underwriter” within the meaning of Section 2(11) under the Securities Act (collectively, the “Share Issuance Conditions”)Notice on the Principal Market (as defined below) on which the Borrower’s Common Shares are listed, traded or quoted is less than $1.00 per share. Subject to such provisions, a Share Issuance Notice shall be irrevocable, irrevocable and shall specify (I) a floor price the aggregate amount of interest under the Notes that the Borrower intends to satisfy by issuing Common Shares to the Lenders on the applicable Interest Payment Date (the “Floor Price”) that is no less than $10.00 (subject to adjustment for any Stock Event occurring after the Agreement Date), (II) the aggregate Interest Amount subject to such Share Issuance Notice, in each case, broken out by the amount due each Lender (such amount, a “Share Issuance Amount”). For purposes herein, a “Delisting Event” shall be deemed to have occurred if the Common Shares cease to be listed, traded or publicly quoted on the Principal Market (IIIas defined below) the Interest Payment Date to on which Common Shares are listed as of such Share Issuance Notice appliesdate, and (IV) shall continue until such shares are relisted or requoted on either the Issuance Period. If the Lenders do not confirm receipt of the Share Issuance Notice within three (3) Trading Days of the delivery thereofNew York Stock Exchange, the Borrower shall thereafter use its reasonable best efforts to confirm NYSE MKT, the NASDAQ Global Select Market, the NASDAQ Global Market or the NASDAQ Capital Market (by emaileach, telephonically or otherwise) such receipt, and in no event shall the Issuance Period commence unless and until the Lenders have confirmed such receipta “Principal Market”).

Exercise of Share Issuance Rights. On any date that is not more than forty-Subject to the provisions of this Section 2.9, upon written notice given at least five (455) days Trading Days prior to any Interest Payment Datethe applicable date on which interest would otherwise be due under Section 2.7 hereunder, the Borrower may deliver to each of the Lenders notice by electronic mail or and facsimile (a “"Share Issuance Notice”") of its intention to issue Freely Tradeable Shares make Interest Share Issuances pursuant to the provisions of this Exhibit Section 2.9 in order to satisfy payment of interest due on such Interest Payment Date under Section 2.7 of the Agreement by delivering such Freely Tradeable Shares to the LendersNotes; provided, however, that that, absent prior written consent of the Required Lenders (in their sole and absolute discretion) the Borrower may not deliver a Share Issuance Notice (ai) during the occurrence of a Delisting Event, (b) at any time following such time as the Borrower has delivered (or is obligated to deliver) a Major Transaction/Organic Change Notice in respect of a Major Transaction, (c) at any time following the occurrence, upon and during the continuance, continuation of an Event of Default or a Default(as defined in Section 5.4), (d) from and after a Withholding Date, (e) if, as of the close of trading on the immediately preceding Trading Day, the Market Capitalization is less than $200,000,000, (g) unless all material information regarding the Borrower (including any material information that may be included in, or reflected by, the Share Issuance Notice) has been publicly disclosed in a report filed pursuant to the Exchange Act or has been otherwise publicly disclosed in a manner calculated to reach the securities marketplace through one of the Borrower’s recognized channels of distribution, (h) unless (X) the Registration Statement is effective and available for the sale of at least all of the Registrable Securities and, after giving effect to the resale of all shares of Common Stock issued pursuant to such Share Issuance Notice (and assuming such shares are sold pursuant to the Registration Statement and that the Volume Weighted Average Price for each Trading Day during each applicable Issuance Period will equal the Floor Price), the Registration Statement shall continue to register a sufficient number of Registrable Securities to cover the resale of all of the Purchased Shares and all of the Warrant Shares issuable upon exercise of the Warrants, or (Y) all shares of Common Stock issuable pursuant to such Share Issuance Notice are eligible for resale by the Lenders without limitation or restriction, including any volume limitations, under state or Federal securities laws pursuant to Rule 144 under the Securities Act, (iii) unless the Borrower is in compliance has, at the time of such issuance, complied with the “"current public information” " requirement of Rule 144(c) under the Securities Act, (jiii) at any time following receipt of a notice of Major Transaction, (iv) unless all material information regarding the Borrower has been publicly disclosed in reports filed pursuant to the Exchange Agreement (v) if, as of the close of business on the Trading Day preceding the date of the Share Issuance Notice, the Market Capitalization (as defined below) is less than $50 million, (vi) if the closing bid price for the Borrower’s shares of Common Stock as of the last Trading Day preceding the date of the Share Payment Notice on the principal securities exchange, trading market or quotation system on which the Borrower’s shares of Common Stock are listed, traded or quoted (the “Principal Market”) is less than $0.35 per share (as appropriately adjusted to reflect any stock split, stock combination, reclassification or other similar event affecting the shares) or (vi) the Borrower’s transfer agent for the Common Stock is not participating in DTC’s the Depositary Trust Company Fast Automated Securities Transfer Program, or (k) if any Lender, after consultation with counsel of its choosing, advises the Borrower that the receipt or resale of Common Stock issued or issuable hereunder would result in such Lender being deemed an “underwriter” within the meaning of Section 2(11) under the Securities Act (collectively, the “Share Issuance Conditions”). Subject to such provisions, a Share Issuance Notice shall be irrevocable, irrevocable and shall specify (I) a floor price the aggregate amount of interest under the Notes that the Borrower intends to satisfy by issuing shares of Common Stock to the Lenders on the applicable Interest Payment Date (the “Floor Price”) that is no less than $10.00 (subject to adjustment for any Stock Event occurring after the Agreement Date), (II) the aggregate Interest Amount subject to such Share Issuance Notice, in each case, broken out by the amount due each Lender (such amount, a “"Share Issuance Amount”"), (III) the Interest Payment Date to which such Share Issuance Notice applies, and (IV) the Issuance Period. If the Lenders do not confirm receipt of the Share Issuance Notice within three (3) Trading Days of the delivery thereof, the Borrower shall thereafter use its reasonable best efforts to confirm (by email, telephonically or otherwise) such receipt, and in no event shall the Issuance Period commence unless and until the Lenders have confirmed such receipt.

Exercise of Share Issuance Rights. On any date that is not more than forty-five (45) days prior Subject to any Interest Payment Datethe terms and conditions of this Exhibit, the Borrower may deliver to each of the Lenders notice by electronic mail or facsimile (a “Share Issuance Notice”) of its intention to issue Freely Tradeable Shares pursuant to the provisions of this Exhibit in order to satisfy principal due under Section 2.3(a) of the Agreement or interest due on such any Interest Payment Date under Section 2.7 of the Agreement Agreement, in each case, by delivering such Freely Tradeable Shares to the Lenders; provided, however, that that, in addition to the limitations set forth in Section 5 of this Exhibit, (i) the Borrower may not deliver a Share Issuance Notice in respect of the satisfaction of principal or interest on or prior to the six month anniversary of the Second Amendment Date, (ii) a Share Issuance Notice may only be delivered between the close of regular trading on a Trading Day and three (3) hours prior to the opening of regular hours on the following Trading Day; (iii) a Share Issuance Notice in respect of the satisfaction of interest may only be delivered on a date that is not more than fifteen (15) and not less than ten (10) Trading Days prior to the Interest Payment Date for the interest payment being satisfied through the issuance of Freely Tradable Shares; and (iv) the Borrower may not deliver a Share Issuance Notice or issue shares of Common Stock to satisfy interest or principal under this Exhibit (a) during the occurrence of a Delisting Event, (b) at any time following such time as on or after the date on which the Borrower has delivered (entered into, or publicly disclosed its intention to enter into, an agreement with respect to, or is obligated otherwise subject to deliver) a Major Transaction/Organic transaction that would result in, a Change Notice in respect of a Major TransactionControl, (c) at any time following the occurrence, and during the continuance, of an Event of Default or a Default, (d) from and after a Withholding Date, (e) if, as of the close of trading on the immediately preceding Trading Day, the Market Capitalization is less than $200,000,000100,000,000, (f) to the extent that the aggregate number of shares of Common Stock issued pursuant to prior Share Issuance Notices has equaled the Share Issuance Limit, (g) unless all material information regarding the Borrower (including any material information that may be included in, or reflected by, the Share Issuance Notice) has been publicly disclosed in a report filed pursuant to the Exchange Act or has been otherwise publicly disclosed in a manner calculated to reach the securities marketplace through one of the Borrower’s recognized channels of distributioncompliant with Regulation FD, (h) unless (X) the Registration Statement is effective and available for the sale of at least all of the Registrable Securities and, after giving effect to the resale of all shares of Common Stock issued pursuant to such Share Issuance Notice (and assuming such shares are sold pursuant to the Registration Statement and that the Volume Weighted Average Price for each Trading Day during each applicable Issuance Period will equal the Floor Price), the Registration Statement shall continue to register a sufficient number of Registrable Securities to cover the resale of all of the Purchased Shares and all of the Warrant Shares issuable upon exercise of the Warrants, or (Y) all shares of Common Stock issuable pursuant to such Share Issuance Notice are eligible for resale by will, at the Lenders without limitation or restrictiontime of issuance, including any volume limitations, under state or Federal securities laws pursuant to Rule 144 under the Securities Actbe Freely Tradeable Shares, (i) unless the Borrower is in compliance with the “current public information” requirement of Rule 144(c) under the Securities Act, (j) if the transfer agent for the Common Stock is not participating in DTC’s Fast Automated Securities Transfer Program, or (kj) if any Lender, after consultation with outside counsel of its choosing, promptly advises the Borrower that the receipt or resale of Common Stock issued or issuable hereunder would result in such Lender being deemed an “underwriter” within the meaning of Section 2(11) under the Securities Act Act, (k) if the arithmetic average of the Volume Weighted Average Price on each of the ten (10) Trading Days immediately preceding such date is less than $3.00, subject to appropriate adjustment for any Stock Event following the Second Amendment Effective Date, or (l) if the Common Stock is subject to any DTC “chill,” “freeze” or similar restriction with respect to any DTC services, including the clearing of transactions in shares of the Common Stock through DTC (collectively, the “Share Issuance Conditions”). Subject to such provisions, a Share Issuance Notice shall be irrevocable, shall specify (I) a floor price (the “Floor Price”) that is no less than $10.00 (subject to adjustment for any Stock Event occurring after the Agreement Date), (IIx) the aggregate Interest Amount amount of interest or principal, as applicable, subject to such Share Issuance Notice, in each case, broken out by the amount due each Lender and (y) in the case of a Share Issuance Notice that provides for the satisfaction of principal through the issuance of Freely Tradeable Shares, a floor price (the “Floor Price”) that is no less than $3.00 per share, subject to appropriate adjustment for any Stock Event (such amount, a “Share Issuance Amount”), (III) the Interest Payment Date to which such Share Issuance Notice applies, and (IV) the Issuance Period. If the Lenders do not confirm receipt of the Share Issuance Notice within three (3) Trading Days of the delivery thereof, the Borrower shall thereafter use its reasonable best efforts to confirm (by email, telephonically or otherwise) such receipt, and in no event shall the Issuance Period commence unless and until the Lenders have confirmed such receipt. For the avoidance of doubt, the Borrower may exercise its right under this Exhibit 2.3, and may deliver a Share Issuance Notice, only one time with respect to the interest due and payable on any Interest Payment Date.

Exercise of Share Issuance Rights. On any date that is not more than forty-five fifteen (4515) days and not less than ten (10) Trading Days prior to any Interest Payment Date, the Borrower may deliver to each of the Lenders notice by electronic mail or facsimile (a “Share Issuance Notice”) of its intention to issue Freely Tradeable Shares pursuant to the provisions of this Exhibit in order to satisfy interest due on such Interest Payment Date under Section 2.7 2.6 of the Agreement by delivering such Freely Tradeable Shares to the Lenders; provided, however, that the Borrower may not deliver a Share Issuance Notice (a) during the occurrence of a Delisting Event, (b) at any time following such time as the Borrower has delivered (or is obligated to deliver) a Major Transaction/Organic Change Transaction Notice in respect of a Major Transaction, (c) at any time following the occurrence, and during the continuance, of an Event of Default or a Default, (d) from and after a Withholding Date, (e) if, as of the close of trading on the immediately preceding Trading Day, the Market Capitalization is less than $200,000,000, (f) if the aggregate number of shares of Common Stock issued pursuant to prior Share Issuance Notices has equaled the Share Issuance Limit, (g) unless all material information regarding the Borrower (including any material information that may be included in, or reflected by, the Share Issuance Notice, but excluding any material information relating to the Borrower’s operating results for the fiscal quarter in which the Share Issuance Notice is delivered other than operating results that would trigger non-compliance with a covenant hereunder or in the ABL Credit Facility) has been publicly disclosed in a report filed pursuant to the Exchange Act or has been otherwise publicly disclosed in a manner calculated to reach the securities marketplace through one of the Borrower’s recognized channels of distribution, (h) unless (X) the Registration Statement is effective and available for the sale of at least all of the Registrable Securities and, after giving effect to the resale of all shares of Common Stock issued pursuant to such Share Issuance Notice (and assuming such shares are sold pursuant to the Registration Statement and that the Volume Weighted Average Price for each Trading Day during each applicable Issuance Period will equal the Floor Price), the Registration Statement shall continue to register a sufficient number of Registrable Securities to cover the resale of all of the Purchased Shares and all of the Warrant Shares issuable upon exercise of the Warrants, or (Y) all shares of Common Stock issuable pursuant to such Share Issuance Notice are eligible for resale by the Lenders without limitation or restriction, including any volume limitations, under state or Federal securities laws pursuant to Rule 144 under the Securities Act, (i) unless the Borrower is in compliance with the “current public information” requirement of Rule 144(c) under the Securities Act, (j) if the transfer agent for the Common Stock is not participating in DTC’s Fast Automated Securities Transfer Program, or (k) if any Lender, after consultation with counsel of its choosing, advises the Borrower that the receipt or resale of Common Stock issued or issuable hereunder would result in such Lender being deemed an “underwriter” within the meaning of Section 2(11) under the Securities Act or (1) if the arithmetic average of the Volume Weighted Average Prices on each of the ten (10) consecutive Trading Days immediately preceding such date is less than $2.00 (collectively, the “Share Issuance Conditions”). Subject to such provisions, a Share Issuance Notice shall be irrevocable, shall specify (I) a floor price (the “Floor Price”) that is no less than $10.00 (subject to adjustment for any Stock Event occurring after the Agreement Date), (II) the aggregate Interest Amount amount of interest subject to such Share Issuance Notice, in each case, broken out by the amount due each Lender (such amount, a “Share Issuance Amount”), (III) the Interest Payment Date to which such Share Issuance Notice applies, and (IV) the Issuance Period. If the Lenders do not confirm receipt of the Share Issuance Notice within three (3) Trading Days of the delivery thereof, the Borrower shall thereafter use its reasonable best efforts to confirm (by email, telephonically or otherwise) such receipt, and in no event shall the Issuance Period commence unless and until the Lenders have confirmed such receipt. For the avoidance of doubt, the Borrower may exercise its right under this Exhibit 2.6, and may deliver a Share Issuance Notice, only one time with respect to the interest due and payable on any Interest Payment Date.