Common use of Failed Exercise Clause in Contracts

Failed Exercise. In the event that the Holder exercises this Warrant in whole or in part pursuant to any provision of Section 2 hereof, and the Company is unable or otherwise fails to deliver all or part of the Warrant Shares (a “Failed Exercise”) due to limitations imposed on the Company by virtue of the NASDAQ Rule 5635 (the “Rule 5365 Limitations”), then the Company shall be obligated to (i) promptly, but in no event later than one hundred twenty (120) days from such Failed Exercise, obtain the required stockholder approval to remove the Rule 5635 Limitations, and (ii) on the first date that such Rule 5635 Limitations no longer apply, deliver to the Holder the number of Warrant Shares required by the Failed Exercise (without regard to the Rule 5635 Limitations); provided, however, that the Holder may elect to retract the Failed Exercise at any time prior to the delivery of the Warrant Shares, whereupon the Holder shall retain all rights under this Warrant as if the Failed Exercise had never occurred. If such approval is required, the Company shall not be obligated to issue any Shares until such approval is received

Failed Exercise. In the event that the Holder exercises this Warrant in whole or in part pursuant to any provision of Section 2 hereof, and the Company is unable or otherwise fails to deliver all or part of the Warrant Shares (a “Failed Exercise”) due to limitations imposed on the Company by virtue of the NASDAQ Rule 5635 713 (the “Rule 5365 713 Limitations”), then the Company shall be obligated to (i) promptly, but in no event later than one hundred twenty (120) days from such Failed Exercise, obtain the required stockholder approval to remove the Rule 5635 713 Limitations, and (ii) on the first date that such Rule 5635 713 Limitations no longer apply, deliver to the Holder the number of Warrant Shares required by the Failed Exercise (without regard to the Rule 5635 713 Limitations); provided, however, that the Holder may elect to retract the Failed Exercise at any time prior to the delivery of the Warrant Shares, whereupon the Holder shall retain all rights under this Warrant as if the Failed Exercise had never occurred. If such approval is required, the Company shall not be obligated to issue any Shares until such approval is received.