Common use of Failure to Timely Deliver; Buy-In Clause in Contracts

Failure to Timely Deliver; Buy-In. If the Company fails to (i) issue and deliver (or cause to be delivered) to a Buyer by the Required Delivery Date a certificate representing the Securities so delivered to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of Common Shares or Warrant Shares so delivered to the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 2% of the product of (A) the sum of the number of shares of Common Shares or Warrant Shares (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery Date. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s or such Buyer’s nominee with DTC by the Required Delivery Date, and if on or after the Required Delivery Date such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock that such Buyer anticipated receiving from the Company without any restrictive legend (a “ Buy-In”), then the Company shall, within three (3) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased (the “ Buy-In Price”), at which point the Company’s obligation to deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to deliver to such Buyer a certificate or certificates or credit such Buyer’s DTC account representing such number of shares of Common Stock that would have been issued if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times (B) the average VWAP of the Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery Date.

Failure to Timely Deliver; Buy-In. If the Company fails on or prior to (i) issue and deliver (or cause to be delivered) to a Buyer by the Required Delivery Date a certificate representing the Securities so delivered to the Company by such Buyer shall fail to issue and deliver to a Purchaser proof that is the uncertificated Securities are free from all restrictive and other legends or (ii) a certificate or book entry statement and register such Common Shares on the Company's share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, credit the balance account of such Buyer’s Purchaser or such BuyerPurchaser’s nominee designee with DTC for such the number of shares of Common Shares or Warrant Shares so delivered to the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 2% of the product of (A) the sum of the number of shares of Common Shares or Warrant Shares (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer Purchaser submitted for legend removal by such Purchaser pursuant to Section 5.14 above (and is so entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery Date. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s or such Buyer’s nominee with DTC by the Required Delivery Dateremoval), and if on or after the Required Delivery Date such Buyer Trading Day such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock Shares to deliver in satisfaction of a sale by such Buyer of shares Purchaser of Common Stock Shares submitted for legend removal by such Purchaser pursuant to Section 5.14 above that such Buyer the Purchaser anticipated receiving from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three (3) five Trading Days after such BuyerPurchaser’s request and in such Buyerthe Company’s sole discretion, either (i) pay cash to such Buyer Purchaser in an amount equal to such BuyerPurchaser’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) ), for the shares of Common Stock Shares so purchased (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or book entry statement (and to issue such unlegended Common Shares) or credit such BuyerPurchaser’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer Purchaser a certificate or certificates or book entry statements representing such Common Shares or credit the balance account of such BuyerPurchaser or such Purchaser’s designee with DTC account representing such number of shares of Common Stock Shares that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer Purchaser in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Purchased Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer Purchaser by the Required Delivery Date times multiplied by (B) the average VWAP sale price per Common Share that the Purchaser agreed to sell and for which unrestricted Common Shares the Purchaser anticipated receiving from the Company. Nothing shall limit such Purchaser’s right to pursue any other remedies available to it hereunder, in equity, such as a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates or book entry statements representing Common Shares (or to electronically deliver such Common Shares) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, this Section 5.15 shall not apply to the applicable Purchaser the extent the Company has already paid such amounts in full to such Purchaser pursuant to an analogous sections of the Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery DateWarrant held by such Purchaser.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) fail, for any reason or for no reason, to issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in FAST, a certificate representing for the Securities so delivered number of Conversion Shares, Commitment Shares or Warrant Shares (as the case may be) to the Company by which such Buyer that is free from all restrictive entitled and other legends register such Conversion Shares, Commitment Shares or Warrant Shares (iias the case may be) on the Company’s share register or, if the Transfer Agent is participating in FAST, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares of Common Conversion Shares or Warrant Shares so delivered (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of the Conversion Shares, Commitment Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant to the CompanyRegistration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion Shares, Commitment Shares or Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Conversion Shares, Commitment Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 2% of the product of (A) the sum of the number of shares of Common Stock not issued to such Buyer on or prior to the Required Delivery Date and to which such Buyer is entitled, and (B) any trading price of the Common Stock selected by such Buyer in writing as in effect at any time during the period beginning on the date of the delivery by such Buyer to the Company of the applicable Conversion Shares, Commitment Shares or Warrant Shares (as the case may be) not issued to such Buyer and ending on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in FAST, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in FAST, credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares, Commitment Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares, Commitment Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Bxxxx’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note or Warrant, as applicable, held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) fail, for any reason or for no reason, to issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in FAST, a certificate representing for the Securities so delivered number of Conversion Shares or Warrant Shares (as the case may be) to the Company by which such Buyer that is free from all restrictive entitled and other legends register such Conversion Shares or Warrant Shares (iias the case may be) on the Company’s share register or, if the Transfer Agent is participating in FAST, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares of Common Conversion Shares or Warrant Shares so delivered (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of the Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant to the CompanyRegistration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion Shares or Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 2% of the product of (A) the sum of the number of shares of Common Stock not issued to such Buyer on or prior to the Required Delivery Date and to which such Buyer is entitled, and (B) any trading price of the Common Stock selected by such Buyer in writing as in effect at any time during the period beginning on the date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) not issued to such Buyer and ending on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in FAST, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in FAST, credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Xxxxx’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note or Warrant, as applicable, held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to, for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a Buyer Holder (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in FAST, a certificate representing for the Securities so delivered number of Conversion Shares or New Warrant Shares (as the case may be) to which such Holder is entitled and register such Conversion Shares or New Warrant Shares (as the Company by such Buyer that case may be) on the Company’s share register or, if the Transfer Agent is free from all restrictive and other legends or (ii) participating in FAST, to credit the balance account of such Buyer’s Holder or such BuyerHolder’s nominee designee with DTC for such number of shares of Common Conversion Shares or New Warrant Shares (as the case may be) submitted for legend removal by such Holder pursuant to Section 24(d) above or (II) if a registration statement declared effective after the date hereof and covering the resale of the Conversion Shares and/or New Warrant Shares (as the case may be) submitted for legend removal by such Holder pursuant to Section 24(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly (x) so delivered notify such Holder and (y) deliver the Conversion Shares or New Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Conversion Shares or New Warrant Shares (as the case may be) submitted for legend removal by such Holder pursuant to Section 24(d) above to such Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the Companyevent described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such BuyerHolder, the Company shall pay in cash to such Buyer Holder on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 20.5% of the product of (A) the sum of the number of shares of Common Stock not issued to such Holder on or prior to the Required Delivery Date and to which such Holder is entitled, and (B) the average closing price during the period beginning on the date of the delivery by such Holder to the Company of the applicable Conversion Shares or New Warrant Shares (as the case may be) not issued to such Buyer and ending on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in FAST, the Company fails shall fail to so properly issue and deliver a certificate to a Holder and register such unlegended certificates or so properly shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in FAST, credit the balance account of such Buyer’s Holder or such BuyerHolder’s nominee designee with DTC for the number of shares of Common Stock to which such Holder submitted for legend removal by the Required Delivery Datesuch Holder pursuant to Section 24(d) above (ii) below or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Buyer Trading Day such Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer Holder of shares of Common Stock submitted for legend removal by such Holder pursuant to Section 24(d) above that such Buyer anticipated receiving Holder is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three (3) Trading Days after such BuyerHolder’s request and in such BuyerHolder’s sole discretion, either (i) pay cash to such Buyer Holder in an amount equal to such BuyerHolder’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such BuyerHolder’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer Holder a certificate or certificates or credit the balance account of such BuyerHolder or such Holder’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or New Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer Holder by the Required Delivery Date times multiplied by (B) the average VWAP Closing Sale Price (as defined in the New Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Holder to the Company of the applicable Conversion Shares or New Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Xxxxxx’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 24(e) shall not apply to the applicable Holder the extent the Company has already paid such amounts in full to such Holder with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the New Note or New Warrant, as applicable, held by such Holder.

Failure to Timely Deliver; Buy-In. If the Company fails to, for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, a certificate representing for the Securities so delivered number of Conversion Shares to the Company by which such Buyer that is free from all restrictive entitled and other legends or (ii) register such Conversion Shares on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares Conversion Shares submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of Common the Conversion Shares or Warrant submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares so delivered and the Company fails to promptly, but in no event later than as required pursuant to the CompanyRegistration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion Shares electronically without any restrictive legend by crediting such aggregate number of Conversion Shares submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 21% of the product of (A) the sum of the number of shares of Common Shares or Warrant Shares (as the case may be) Stock not issued to such Buyer on a timely basis or prior to the Required Delivery Date and to which such Buyer is entitled entitled, and (B) the VWAP (as defined below) any trading price of the shares of Common Stock for selected by such Buyer in writing as in effect at any time during the five (5) Trading Day period immediately preceding beginning on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares and ending on the applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program (and in the case of Conversion Shares, if they may then be resold by such Buyer pursuant to an effective resale registration statement or so properly in reliance on Rule 144 (if then available)), credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Notes) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails fails, for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in FAST, a certificate representing the Securities so delivered to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of Common Shares or Warrant Shares so delivered to the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 2% of the product of (A) the sum of the number of shares of Common Conversion Shares or Warrant Shares (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer is entitled and (B) the VWAP register such Conversion Shares or Warrant Shares (as defined belowthe case may be) of on the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery Date. In addition to the foregoingCompany’s share register or, if the Company fails Transfer Agent is participating in FAST, to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Required Registration Statement covering the resale of the Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant to the Registration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion Shares or Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery DateFailure”), then, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Bxxxx’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note or Warrant, as applicable, held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) issue and deliver (or cause to be delivered) to a Buyer by the Required Delivery Date a certificate representing the Securities so delivered to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of Common Conversion Shares or Warrant Shares so delivered to the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day Trading Day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 21% of the product of (A) the sum of the number of shares of Common Shares Stock not so delivered or Warrant Shares credited (as the case may be) not issued to such Buyer on a timely basis and to which or such Buyer is entitled and Buyer’s nominee multiplied by (B) the VWAP (as defined below) Closing Sale Price of the shares of Common Stock for on the five (5) Trading Day period immediately preceding the Required Delivery Date. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s or such Buyer’s nominee with DTC by the Required Delivery Date, and if on or after the Required Delivery Date such Buyer (or any other Person in respect, or on behalf, of such Buyer) purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock, that such Buyer so anticipated receiving from the Company without any restrictive legend (a “ Buy-In”)legend, then then, in addition to all other remedies available to such Buyer, the Company shall, within three (3) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit such Buyer’s DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required Delivery Datedate of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii).

Failure to Timely Deliver; Buy-In. If the Company fails to, for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, a certificate representing for the Securities so delivered number of Conversion Shares to the Company by which such Buyer that is free from all restrictive entitled and other legends or (ii) register such Conversion Shares on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares of Common Conversion Shares or Warrant Shares so delivered submitted for legend removal by such Buyer pursuant to the CompanySection 5(d) above (a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 21% of the product of (A) the sum of the number of shares of Common Shares or Warrant Shares (as the case may be) Stock not issued to such Buyer on a timely basis or prior to the Required Delivery Date and to which such Buyer is entitled entitled, and (B) the VWAP (as defined below) any trading price of the shares of Common Stock for selected by such Buyer in writing as in effect at any time during the five (5) Trading Day period immediately preceding beginning on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares and ending on the applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program (and in the case of Conversion Shares, if they may then be resold by such Buyer pursuant to an effective resale registration statement or so properly in reliance on Rule 144 (if then available)), credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Notes) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Delivery Failure, as applicable, pursuant to the analogous sections of the Note held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) issue and deliver (or cause to be delivered) to a Buyer by the Required Delivery Date a certificate representing the Securities so delivered to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of Common Conversion Shares or Warrant Shares so delivered to the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day Trading Day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 2% of the product of (A) the sum of the number of shares of Common Shares Stock not so delivered or Warrant Shares credited (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer is entitled and or Buyer’s nominee multiplied by (B) the VWAP (as defined below) Closing Sale Price of the shares of Common Stock for on the five (5) Trading Day period immediately preceding the Required Delivery Date. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s or such Buyer’s nominee with DTC by the Required Delivery Date, and if on or after the Required Delivery Date such Buyer (or any other Person in respect, or on behalf, of Buyer) purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock, that such Buyer so anticipated receiving from the Company without any restrictive legend (a “ Buy-In”)legend, then then, in addition to all other remedies available to Buyer, the Company shall, within three five (35) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit such Buyer’s DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required Delivery Datedate of the delivery by Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii).

Failure to Timely Deliver; Buy-In. If the Company fails to (i) fail, for any reason or for no reason, to issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, a certificate representing for the Securities so delivered number of Conversion Shares or Warrant Shares (as the case may be) to the Company by which such Buyer that is free from all restrictive entitled and other legends register such Conversion Shares or Warrant Shares (iias the case may be) on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares of Common Conversion Shares or Warrant Shares so delivered (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of the Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant to the CompanyRegistration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion Shares or Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 2% of the product of (A) the sum of the number of shares Ordinary Shares not issued to such Buyer on or prior to the Required Delivery Date and to which such Buyer is entitled, and (B) any trading price of Common the Ordinary Shares selected by such Buyer in writing as in effect at any time during the period beginning on the date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) not issued to such Buyer and ending on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly Ordinary Shares on the Company's share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of Ordinary Shares to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock Ordinary Shares to deliver in satisfaction of a sale by such Buyer of shares of Common Stock Ordinary Shares submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock Ordinary Shares so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock Ordinary Shares that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) Ordinary Shares on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing Ordinary Shares (or to electronically deliver such Ordinary Shares) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note or Warrant, as applicable, held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) fail, for any reason or for no reason, to issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required applicable Share Delivery Date Deadline, either (I) if the Transfer Agent is not participating in FAST, a certificate representing for the Securities so delivered number of Common Shares, shares of Common Stock issuable upon exchange of the Prefunded Warrants or Warrant Shares (as the case may be) to which the Company by Buyer is entitled and register such Buyer that Common Shares or Warrant Shares (as the case may be) on the Company’s share register or, if the Transfer Agent is free from all restrictive and other legends or (ii) participating in FAST, to credit the balance account of such the Buyer or the Buyer’s or such Buyer’s nominee designee with DTC for such number of Common Shares, shares of Common Shares Stock issuable upon exercise of the Prefunded Warrants or Warrant Shares so delivered (as the case may be) submitted for legend removal by the Buyer pursuant to Section 5(c) above or (II) if the registration statement covering the resale of the Warrant Shares submitted for legend removal by the Buyer pursuant to Section 5(c) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant to the CompanyRegistration Rights Agreement (x) so notify the Buyer and (y) deliver the Warrant Shares electronically without any restrictive legend by crediting such aggregate number of Warrant Shares submitted for legend removal by the Buyer pursuant to Section 5(c) above to the Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such the Buyer, the Company shall pay in cash to such the Buyer on each day after the Required Share Delivery Date that the issuance or credit of Deadline and during such shares is not timely effected Delivery Failure an amount equal to 21% of the product of (A) the sum of the number of shares of Common Stock not issued to the Buyer on or prior to the Share Delivery Deadline and to which the Buyer is entitled, and (B) any trading price of the Common Stock selected by the Buyer in writing as in effect at any time during the period beginning on the date of the delivery by the Buyer to the Company of the applicable Common Shares or Warrant Shares (as the case may be) not issued to such Buyer and ending on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required applicable Share Delivery DateDeadline. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in FAST, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in FAST, credit the balance account of such the Buyer or the Buyer’s or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which the Buyer submitted for legend removal by the Required Delivery DateBuyer pursuant to Section 5(c) above (ii) below or (II) a Notice Failure occurs, and if on or after such Trading Day the Required Delivery Date such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such the Buyer of shares of Common Stock submitted for legend removal by the Buyer pursuant to Section 5(c) above that such the Buyer anticipated receiving from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such the Buyer’s request and in such the Buyer’s sole discretion, either (i) pay cash to such the Buyer in an amount equal to such the Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such the Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such the Buyer a certificate or certificates or credit such the balance account of the Buyer or the Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such the Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Shares Shares, shares of Common Stock issuable upon exchange of the Prefunded Warrants or Warrant Shares (as the case may be) that the Company was required to deliver to such the Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by the Buyer to the Company of the applicable Common Shares , shares of Common Stock issuable upon exercise of the Prefunded Warrants or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit the Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(d) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to the Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Prefunded Warrants or Warrant, as applicable, held by the Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails fails, for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in FAST, a certificate representing for the Securities so delivered number of Conversion Shares or Warrant Shares (as the case may be) to the Company by which such Buyer that is free from all restrictive entitled and other legends register such Conversion Shares or Warrant Shares (iias the case may be) on the Company’s share register or, if the Transfer Agent is participating in FAST, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares of Common Conversion Shares or Warrant Shares so delivered (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of the Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares pursuant to its terms and the Company fails to promptly, but in no event later than as required pursuant to the CompanyRegistration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion Shares or Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 21.5% of the product of (A) the sum of the number of shares of Common Stock not issued to such Buyer on or prior to the Required Delivery Date and to which such Buyer is entitled, and (B) any trading price of the Common Stock selected by such Buyer in writing as in effect at any time during the period beginning on the date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) not issued to such Buyer and ending on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in FAST, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in FAST, credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the shares of Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Xxxxx’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Certificate of Designations or Warrant, as applicable, held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to use its best efforts to (i) issue and deliver (or cause to be delivered) to a Buyer by the Required Delivery Date a certificate representing the Securities Conversion Shares or Warrant Shares required to be so delivered to by the Company by to such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of Common Conversion Shares or Warrant Shares required to be so delivered to by the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 21% of the product initial Conversion Amount of (A) the sum of the number of shares of Common Shares or Warrant Shares (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery DateBuyer’s Special Warrant. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s or such Buyer’s nominee with DTC by the Required Delivery Date, and if on or after the Required Delivery Date such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock Shares to deliver in satisfaction of a sale by such Buyer of shares of Common Stock Shares that such Buyer anticipated receiving from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three (3) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock Shares so purchased (the “ “Buy-In Price”), at which point the Company’s obligation to deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to deliver to such Buyer a certificate or certificates or credit such Buyer’s DTC account representing such number of shares of Common Stock Shares that would have been issued if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times (B) the average VWAP of the Common Stock Shares for the five (5) Trading Day period immediately preceding the Required Delivery Date.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) fail, for any reason or for no reason, to issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in FAST, a certificate representing for the Securities so delivered number of Conversion Shares, Common Shares or Warrant Shares (as the case may be) to the Company by which such Buyer that is free from all restrictive entitled and other legends register such Conversion Shares, Common Shares or Warrant Shares (iias the case may be) on the Company’s share register or, if the Transfer Agent is participating in FAST, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of the Conversion Shares, Common Shares or Warrant Shares so delivered (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant to the CompanyRegistration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion Shares, Common Shares or Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Conversion Shares, Common Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 21% of the product of (A) the sum of the number of shares of Common Stock not issued to such Buyer on or prior to the Required Delivery Date and to which such Buyer is entitled, and (B) any trading price of the Common Stock selected by such Buyer in writing as in effect at any time during the period beginning on the date of the delivery by such Buyer to the Company of the applicable Conversion Shares, Common Shares or Warrant Shares (as the case may be) not issued to such Buyer and ending on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in FAST, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in FAST, credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Conversion Shares, Common Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares, Common Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Certificate of Designations or Warrant, as applicable, with respect to the Preferred Shares or Warrants, as applicable, then held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails fails, for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in FAST, a certificate representing the Securities so delivered to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of Common Shares or Warrant Shares so delivered to the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 2% of the product of (A) the sum of the number of shares of Common Conversion Shares or Warrant Shares (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer is entitled and (B) the VWAP register such Conversion Shares or Shares (as defined belowthe case may be) of on the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery Date. In addition to the foregoingCompany’s share register or, if the Company fails Transfer Agent is participating in FAST, to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of Conversion Shares or Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Required Registration Statement covering the resale of the Conversion Shares or Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant to the Registration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion Shares or Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Conversion Shares or Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery DateFailure”), then, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the s) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Bxxxx’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note or , as applicable, held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) fail, for any reason or for no reason, to issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in FAST, a certificate representing for the Securities so delivered number of Conversion Shares or Warrant Shares (as the case may be) to the Company by which such Buyer that is free from all restrictive entitled and other legends register such Conversion Shares or Warrant Shares (iias the case may be) on the Company’s share register or, if the Transfer Agent is participating in FAST, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares of Common Conversion Shares or Warrant Shares so delivered (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of the Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant to the CompanyRegistration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion Shares or Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 2% of the product of (A) the sum of the number of shares of Common Stock not issued to such Buyer on or prior to the Required Delivery Date and to which such Buyer is entitled, and (B) any trading price of the Common Stock selected by such Buyer in writing as in effect at any time during the period beginning on the date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) not issued to such Buyer and ending on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in FAST, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in FAST, credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note or Warrant, as applicable, held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails fails, for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in FAST, a certificate representing for the Securities so delivered number of Conversion Shares or Warrant Shares (as the case may be) to the Company by which such Buyer that is free from all restrictive entitled and other legends register such Conversion Shares or Warrant Shares (iias the case may be) on the Company’s share register or, if the Transfer Agent is participating in FAST, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares of Common Conversion Shares or Warrant Shares so delivered (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of the Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant to the CompanyRegistration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion Shares or Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 2% of the product of (A) the sum of the number of shares of Common Stock not issued to such Buyer on or prior to the Required Delivery Date and to which such Buyer is entitled, and (B) any trading price of the Common Stock selected by such Buyer in writing as in effect at any time during the period beginning on the date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) not issued to such Buyer and ending on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in FAST, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in FAST, credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases acquires (in an open market transaction transaction, stock loan or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissions, stock loan costs and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased acquired (including, without limitation, by any other Person in respect, or on behalf, of such Buyer) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Xxxxx’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note or Warrant, as applicable, held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails fails, for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, a certificate representing for the Securities so delivered number of Conversion Shares or Warrant Shares (as the case may be) to the Company by which such Buyer that is free from all restrictive entitled and other legends register such Conversion Shares or Warrant Shares (iias the case may be) on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares of Common Conversion Shares or Warrant Shares so delivered (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of the Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant to the CompanyRegistration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion Shares or Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 21.5% of the product of (A) the sum of the number of shares of Common Stock not issued to such Buyer on or prior to the Required Delivery Date and to which such Buyer is entitled, and (B) any trading price of the Common Stock selected by such Buyer in writing as in effect at any time during the period beginning on the date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) not issued to such Buyer and ending on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note or Warrant, as applicable, held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) fail, for any reason or for no reason, to issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, a certificate representing for the Securities so delivered number of Conversion Shares or Make-Whole Shares (as the case may be) to the Company by which such Buyer that is free from all restrictive entitled and other legends register such Conversion Shares or Make-Whole Shares (iias the case may be) on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares of Common Conversion Shares or Warrant Make-Whole Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of the Conversion Shares or Make-Whole Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly (x) so delivered notify such Buyer and (y) deliver the Conversion Shares or Make-Whole Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Conversion Shares or Make-Whole Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the Companyevent described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, thena “Delivery Failure”),then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 2% of the product of (A) the sum of the number of shares of Common Stock not issued to such Buyer on or prior to the Required Delivery Date and to which such Buyer is entitled, and (B) any trading price of the Common Stock selected by such Buyer in writing as in effect at any time during the period beginning on the date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Make-Whole Shares (as the case may be) not issued to such Buyer and ending on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly shares of Common Stock on the Company's share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three (3) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Make-Whole Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Notes) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Make-Whole Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to, for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a the Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program or the Company’s securities are not DTC eligible, a certificate representing for the number of Note Conversion Shares, Warrant Conversion Shares, or Purchase Right Conversion Shares to which the Buyer is entitled and register such Note Conversion Shares, Warrant Conversion Shares, or Purchase Right Conversion Shares on the Company’s share register or, (II) if the Transfer Agent is participating in the DTC Fast Automated Securities so delivered Transfer Program, to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such the Buyer or the Buyer’s or such Buyer’s nominee designee with DTC for such number of shares of Common Note Conversion Shares, Warrant Shares, or Purchase Right Shares or Warrant Shares so delivered submitted for legend removal by the Buyer pursuant to Section 5(d) above (the Companyevent described in the immediately foregoing clause (I) above, thena “Delivery Failure”),then, in addition to all other remedies available to such the Buyer, the Company shall pay in cash to such the Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 2% of the product of (A) the sum of the number of shares of Common Shares or Warrant Shares (as the case may be) Stock not issued to such the Buyer on a timely basis or prior to the Required Delivery Date and to which such the Buyer is entitled entitled, and (B) the VWAP (as defined below) any trading price of the shares of Common Stock for selected by the five (5) Trading Day Buyer in writing as in effect at any time during the period immediately preceding beginning on the Required date of the delivery by the Buyer to the Company of the applicable Note Conversion Shares, Warrant Conversion Shares, or Purchase Right Conversion Shares and ending on the applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, the Company fails shall fail to so properly issue and deliver a certificate to the Buyer and register such unlegended certificates or so properly shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, credit the balance account of such the Buyer or the Buyer’s or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which the Buyer submitted for legend removal by the Required Buyer pursuant to Section 5(d) above (ii) below or (II) a Delivery DateFailure occurs, and if on or after such Trading Day the Required Delivery Date such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such the Buyer of shares of Common Stock submitted for legend removal by the Buyer pursuant to Section 5(d) above that such the Buyer anticipated receiving from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three (3) Trading Business Days after such the Buyer’s request and in such the Buyer’s sole discretion, either (i) pay cash to such the Buyer in an amount equal to such the Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such the Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such the Buyer a certificate or certificates or credit such the balance account of the Buyer or the Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such the Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Note Conversion Shares, Warrant Shares, or Purchase Right Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such the Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Notes) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by the Buyer to the Company of the applicable Note Conversion Shares, Warrant Shares, or Purchase Right Shares and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit the Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Delivery DateFailure, this Section 5(e) shall not apply to the Buyer to the extent the Company has already paid such amounts in full to the Buyer with respect to such Delivery Failure, as applicable, pursuant to the analogous sections of the Note held by the Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails Partnership fails, for any reason or for no reason (other than failure of a Buyer to (i) comply with Section 5(d)),, to issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, a certificate representing the Securities so delivered to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of Common Shares or Warrant Shares so delivered to the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 2% of the product of (A) the sum of the number of shares of Common Shares Conversion Units or Warrant Shares Units (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer is entitled and (B) the VWAP register such Conversion Units or Warrant Units (as defined belowthe case may be) of on the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery Date. In addition to the foregoingPartnership’s unit register or, if the Company fails Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of Conversion Units or Warrant Units (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Required Registration Statement covering the resale of the Conversion Units or Warrant Units (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Partnership fails to promptly, but in no event later than as required pursuant to the Registration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion Units or Warrant Units, as applicable, electronically without any restrictive legend by crediting such aggregate number of Conversion Units or Warrant Units (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Date, Failure”) and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock Units to deliver in satisfaction of a sale by such Buyer of shares of Common Stock Units submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend Partnership (a “ “Buy-In”), then the Company Partnership shall, within three (3) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock Units so purchased purchased) (the “ “Buy-In Price”), at which point the CompanyPartnership’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares units shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock Units that would have been issued so delivered if the Company Partnership timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares units of Common Shares Conversion Units or Warrant Shares Units (as the case may be) that the Company Partnership was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) Units on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Partnership of the applicable Conversion Units or Warrant Units (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Partnership’s failure to timely deliver certificates representing Common Units (or to electronically deliver such Common Units) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Partnership has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note or Warrant, as applicable, held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) issue and deliver (or cause to be delivered) to a Buyer by the Required Delivery Date a certificate representing the Securities so delivered to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of Common Conversion Shares or Warrant Shares so delivered to the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 2% of the product average VWAP of the Conversion Shares for the five (A5) Trading Day period immediately preceding the sum of Required Delivery Date multiplied by the number of shares of Common Conversion Shares or Warrant Shares (as the case may be) not issued required to such Buyer be delivered on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery Date. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s or such Buyer’s nominee with DTC by the Required Delivery Date, and if on or after the Required Delivery Date such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock that such Buyer anticipated receiving from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three (3) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased (the “ “Buy-In Price”), at which point the Company’s obligation to deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to deliver to such Buyer a certificate or certificates or credit such Buyer’s DTC account representing such number of shares of Common Stock that would have been issued if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times (B) the average VWAP of the Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery Date.

Failure to Timely Deliver; Buy-In. If the Company fails fails, for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in FAST, a certificate representing for the Securities so delivered number of Conversion Shares or Warrant Shares (as the case may be) to the Company by which such Buyer that is free from all restrictive entitled and other legends register such Conversion Shares or Warrant Shares (iias the case may be) on the Company’s share register or, if the Transfer Agent is participating in FAST, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares of Common Conversion Shares or Warrant Shares so delivered (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of the Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares pursuant to its terms and the Company fails to promptly, but in no event later than as required pursuant to the CompanyRegistration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion Shares or Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 21.5% of the product of (A) the sum of the number of shares of Common Stock not issued to such Buyer on or prior to the Required Delivery Date and to which such Buyer is entitled, and (B) any trading price of the Common Stock selected by such Buyer in writing as in effect at any time during the period beginning on the date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) not issued to such Buyer and ending on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in FAST, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in FAST, credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the shares of Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Bxxxx’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Certificate of Designations or Warrant, as applicable, held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) fail, for any reason or for no reason, to issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, a certificate representing for the Securities so delivered number of Conversion Shares or Warrant Shares (as the case may be) to the Company by which such Buyer that is free from all restrictive entitled and other legends register such Conversion Shares or Warrant Shares (iias the case may be) on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if a registration statement covering the resale of the Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly (x) so delivered notify such Buyer and (y) deliver the Conversion Shares or Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the Companyevent described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 2% of the product of (A) the sum of the number of shares of Common Stock not issued to such Buyer on or prior to the Required Delivery Date and to which such Buyer is entitled, and (B) any trading price of the Common Stock selected by such Buyer in writing as in effect at any time during the period beginning on the date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) not issued to such Buyer and ending on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly shares of Common Stock on the Company's share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock corresponding to deliver in satisfaction all or any portion of a sale by such Buyer the number of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three (3) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note or Warrant, as applicable, held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company is a Reporting Company and the Company improperly fails to (i) issue and deliver dispatch for delivery (or cause to be deliveredso dispatched) to a Buyer Designated Recipient by the Required Delivery Date a certificate representing the Securities so delivered to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such BuyerDesignated Recipient’s or such BuyerDesignated Recipient’s nominee with DTC for such number of shares of Common Shares or Warrant Conversion Shares so delivered to the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 2% of the product of (A) the sum of the number of shares of Common Shares or Warrant Shares (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery Date. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s or such Buyer’s nominee with DTC by the Required Delivery Date, and if on or after the business day immediately following the Required Delivery Date such Buyer (or any other Person in respect, or on behalf, of such Buyer) purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock, that such Buyer so anticipated receiving from the Company without any restrictive legend (a “ the “Buy-InIn Shares”), then the Company shall, within three five (35) Trading Business Days after such Buyer’s request and in such Buyer’s sole discretion, either (ix) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out of pocket expenses, if it’ any) for the shares of Common Stock so purchased such Buy-In Shares (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such BuyerDesignated Recipient’s balance account shall terminate and such shares shall be cancelled, or (iiy) promptly honor its obligation to so deliver to such Buyer Designated Recipient a certificate or certificates or credit such BuyerDesignated Recipient’s DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal equal, to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer Designated Recipient by the Required Delivery Date times multiplied by (B) the average VWAP lowest closing sale price of the Common Stock for on the five Business Days during the period commencing on the date of the delivery by such Designated Recipient to the Company of the applicable Conversion Shares and ending on the date of such delivery and payment under this clause (5) Trading Day period immediately preceding the Required Delivery Datey).

Failure to Timely Deliver; Buy-In. If the Company improperly fails to (i) issue and deliver (or cause remove the legend referred to be delivered) to a Buyer in Section 4.05 by the Required Delivery Legend Removal Date a certificate representing the Securities so delivered to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of Common Shares or Warrant Shares so delivered to the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 2% of the product of (A) the sum of the number of shares of Common Shares or Warrant Shares (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery Date. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s or such Buyer’s nominee with DTC by the Required Delivery Date, and if on or after the Business Day immediately following the Required Delivery Legend Removal Date such Buyer the Purchaser (or any other Person in respect, or on behalf, of Purchaser) purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock, that such Buyer Purchaser so anticipated receiving from the Company without any restrictive legend (a “ Buy-In”)legend, then then, in addition to all other remedies available to such Purchaser, the Company shall, within three five (35) Trading Business Days after such BuyerPurchaser’s request and in such BuyerPurchaser’s sole discretion, either (ix) pay cash to such Buyer Purchaser in an amount equal to such BuyerPurchaser’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such BuyerPurchaser’s balance account shall terminate and such shares shall be cancelled, or (iiy) promptly honor its obligation to deliver remove the legend referred to such Buyer a certificate or certificates or credit such Buyer’s DTC account representing in Section 4.05 from such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer Purchaser in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer Purchaser by the Required Delivery Legend Removal Date times multiplied by (B) the average VWAP lowest closing sale price of the Common Stock for on any Business Day during the five period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares and ending on the date of such delivery and payment under this clause (5) Trading Day period immediately preceding the Required Delivery Datey).

Failure to Timely Deliver; Buy-In. If the Company fails fails, for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date a certificate representing the Securities date by which such credit is so delivered required to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit be made to the balance account of such Buyer’s or such Buyer’s nominee designee with DTC or such certificate is required to be delivered to such Buyer pursuant to Section 5(b) (the “Required Delivery Date”), either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, a certificate for the number of Conversion Shares to which such Buyer is entitled and register such Conversion Shares on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, to credit the balance account of such Buyer or such Buyer’s designee with DTC for such number of shares of Common Conversion Shares or Warrant (II) if the Registration Statement covering the resale of the Conversion Shares (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than two (2) Business Days (x) so delivered notify such Buyer and (y) deliver the Conversion Shares electronically without any restrictive legend by crediting such aggregate number of Conversion Shares to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the Companyevent described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required date such Conversion Shares are actually delivered without restrictive legend to such Buyer or such Buyer’s designee with DTC, as applicable, the “Share Delivery Date that the issuance or credit of Date” and during such shares is not timely effected Delivery Failure an amount equal to 2% of the product of (A) the sum of the number of shares of Class B Common Shares or Warrant Shares (as the case may be) Stock not issued to such Buyer on a timely basis or prior to the Required Delivery Date and to which such Buyer is entitled entitled, and (B) the VWAP (as defined below) any trading price of the shares of Class B Common Stock for selected by such Buyer in writing as in effect at any time during the five (5) Trading Day period immediately preceding beginning on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares and ending on the applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly shares of Class B Common Stock on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC by for the Required Delivery Datenumber of shares of Class B Common Stock to which such Buyer is entitled or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Class B Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Class B Common Stock that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Class B Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Class B Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest closing sale price of the Class B Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Xxxxx’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Class B Common Stock (or to electronically deliver such shares of Class B Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Certificate of Designations, as applicable, with respect to the Preferred Shares, as applicable, then held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) fail, for any reason or for no reason, to issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, a certificate representing for the Securities so delivered number of Conversion Shares or Warrant Shares (as the case may be) to the Company by which such Buyer that is free from all restrictive entitled and other legends register such Conversion Shares or Warrant Shares (iias the case may be) on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares of Common Conversion Shares or Warrant Shares so delivered (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of the Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant to the CompanyRegistration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion Shares or Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 2% of the product of (A) the sum of the number of shares of Common Stock not issued to such Buyer on or prior to the Required Delivery Date and to which such Buyer is entitled, and (B) any trading price of the Common Stock selected by such Buyer in writing as in effect at any time during the period beginning on the date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) not issued to such Buyer and ending on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly shares of Common Stock on the Company's share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note or Warrant, as applicable, held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) fail, for any reason or for no reason, to issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required applicable Share Delivery Date Deadline, either (I) if the Transfer Agent is not participating in FAST, a certificate representing for the Securities so delivered number of Common Shares, shares of Common Stock issuable upon conversion of the Preferred Shares or Warrant Shares (as the case may be) to which the Company by Buyer is entitled and register such Buyer that Common Shares or Warrant Shares (as the case may be) on the Company’s share register or, if the Transfer Agent is free from all restrictive and other legends or (ii) participating in FAST, to credit the balance account of such the Buyer or the Buyer’s or such Buyer’s nominee designee with DTC for such number of Common Shares, shares of Common Stock issuable upon conversion of the Preferred Shares or Warrant Shares so delivered (as the case may be) submitted for legend removal by the Buyer pursuant to Section 5(c) above or (II) if the Registration Statement covering the resale of the Warrant Shares submitted for legend removal by the Buyer pursuant to Section 5(c) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant to the CompanyRegistration Rights Agreement (x) so notify the Buyer and (y) deliver the Warrant Shares electronically without any restrictive legend by crediting such aggregate number of Warrant Shares submitted for legend removal by the Buyer pursuant to Section 5(c) above to the Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such the Buyer, the Company shall pay in cash to such the Buyer on each day after the Required Share Delivery Date that the issuance or credit of Deadline and during such shares is not timely effected Delivery Failure an amount equal to 21% of the product of (A) the sum of the number of shares of Common Stock not issued to the Buyer on or prior to the Share Delivery Deadline and to which the Buyer is entitled, and (B) any trading price of the Common Stock selected by the Buyer in writing as in effect at any time during the period beginning on the date of the delivery by the Buyer to the Company of the applicable Common Shares or Warrant Shares (as the case may be) not issued to such Buyer and ending on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required applicable Share Delivery DateDeadline. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in FAST, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in FAST, credit the balance account of such the Buyer or the Buyer’s or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which the Buyer submitted for legend removal by the Required Delivery DateBuyer pursuant to Section 5(c) above (ii) below or (II) a Notice Failure occurs, and if on or after such Trading Day the Required Delivery Date such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such the Buyer of shares of Common Stock submitted for legend removal by the Buyer pursuant to Section 5(c) above that such the Buyer anticipated receiving from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such the Buyer’s request and in such the Buyer’s sole discretion, either (i) pay cash to such the Buyer in an amount equal to such the Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such the Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such the Buyer a certificate or certificates or credit such the balance account of the Buyer or the Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such the Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Shares, shares of Common Stock issuable upon conversion of the Preferred Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such the Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by the Buyer to the Company of the applicable Common Shares , shares of Common Stock issuable upon conversion of the Preferred Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit the Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(d) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to the Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Preferred Shares or Warrant, as applicable, held by the Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) fail, for any reason or for no reason, to issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, a certificate representing for the Securities so delivered number of Conversion Shares or Warrant Shares (as the case may be) to the Company by which such Buyer that is free from all restrictive entitled and other legends register such Conversion Shares or Warrant Shares (iias the case may be) on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares of Common Conversion Shares or Warrant Shares so delivered (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of the Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant to the CompanyRegistration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion Shares or Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 21% of the product of (A) the sum of the number of shares Ordinary Shares not issued to such Buyer on or prior to the Required Delivery Date and to which such Buyer is entitled, and (B) any trading price of Common the Ordinary Shares selected by such Buyer in writing as in effect at any time during the period beginning on the date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) not issued to such Buyer and ending on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly Ordinary Shares on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of Ordinary Shares to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock Ordinary Shares to deliver in satisfaction of a sale by such Buyer of shares of Common Stock Ordinary Shares submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock Ordinary Shares so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock Ordinary Shares that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) Ordinary Shares on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing Ordinary Shares (or to electronically deliver such Ordinary Shares) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note or Warrant, as applicable, held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails fails, for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in FAST, a certificate representing for the Securities so delivered number of Warrant Shares (as the case may be) to the Company by which such Buyer that is free from all restrictive entitled and other legends or register such Warrant Shares (iias the case may be) on the Company’s share register or, if the Transfer Agent is participating in FAST, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares of Common Shares or Warrant Shares so delivered (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of the Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares pursuant to its terms and the Company fails to promptly, but in no event later than as required pursuant to the CompanyRegistration Rights Agreement (x) so notify such Buyer and (y) deliver the Warrant Shares electronically without any restrictive legend by crediting such aggregate number of Warrant Shares submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 21.5% of the product of (A) the sum of the number of shares of Common Shares Stock not issued to such Buyer on or prior to the Required Delivery Date and to which such Buyer is entitled, and (B) any trading price of the Common Stock selected by such Buyer in writing as in effect at any time during the period beginning on the date of the delivery by such Buyer to the Company of the applicable Warrant Shares (as the case may be) not issued to such Buyer and ending on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in FAST, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in FAST, credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the shares of Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Warrant Shares and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Bxxxx’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Warrant held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) issue and deliver (or cause to be delivered) to a Buyer Purchaser by the Required Delivery Date a certificate representing the Securities so delivered to the Company by such Buyer Purchaser that is free from all restrictive and other legends or (ii) credit the balance account of such BuyerPurchaser’s or such BuyerPurchaser’s nominee with DTC for such number of shares of Common Shares or Warrant Underlying Shares so delivered to the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 2% of the product of (A) the sum of the number of shares of Common Shares or Warrant Shares (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery Date. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s or such Buyer’s nominee with DTC by the Required Delivery Date, and if on or after the Required Delivery Date such Buyer Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer Purchaser of shares of Common Stock that such Buyer Purchaser anticipated receiving from the Company without any restrictive legend (a “ Buy-In”)legend, then then, in addition to all other remedies available to such Purchaser, the Company shall, within three (3) Trading Days after such BuyerPurchaser’s request and in such BuyerPurchaser’s sole discretion, either (i) pay cash to such Buyer Purchaser in an amount equal to such BuyerPurchaser’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased (the “ “Buy-In Price”), at which point the Company’s obligation to deliver such certificate or credit such BuyerPurchaser’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to deliver to such Buyer Purchaser a certificate or certificates or credit such BuyerPurchaser’s DTC account representing such number of shares of Common Stock that would have been issued if the Company timely complied with its obligations hereunder and pay cash to such Buyer Purchaser in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Shares or Warrant Underlying Shares (as the case may be) that the Company was required to deliver to such Buyer Purchaser by the Required Delivery Date times (B) the average VWAP Closing Sale Price (as defined in the Warrants) of the Common Stock for on the five (5) Trading Day period immediately preceding the Required Delivery Date.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) issue and deliver (or cause to be delivered) to a Buyer Purchaser by the Required Delivery Date a certificate representing the Securities so delivered to the Company by such Buyer Purchaser that is free from all restrictive and other legends or (ii) credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of Common Shares or Warrant Shares so delivered to the Companylegends, then, in addition to all other remedies available to such BuyerPurchaser, the Company shall pay in cash to such Buyer Purchaser on each day Trading Day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 21% of the product of (A) the sum of the number of shares of Common Shares Stock not so delivered or Warrant Shares credited (as the case may be) not issued to such Buyer on a timely basis and to which Purchaser or such Buyer is entitled and Purchaser’s nominee multiplied by (B) the VWAP (as defined below) Closing Sale Price of the shares of Common Stock for on the five (5) Trading Day period immediately preceding the Required Delivery Date. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s or such Buyer’s nominee with DTC by the Required Delivery Date, and if on or after the Required Delivery Date such Buyer Purchaser (or any other Person in respect, or on behalf, of such Purchaser) purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock, that such Buyer Purchaser so anticipated receiving from the Company without any restrictive legend (a “ Buy-In”)legend, then then, in addition to all other remedies available to such Purchaser, the Company shall, within three (3) Trading Days after such BuyerPurchaser’s request and in such BuyerPurchaser’s sole discretion, either (i) pay cash to such Buyer Purchaser in an amount equal to such BuyerPurchaser’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such BuyerPurchaser’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer Purchaser a certificate or certificates or credit such Buyer’s DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer Purchaser in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Note Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer Purchaser by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required Delivery Datedate of the delivery by such Purchaser to the Company of the applicable Note Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii).

Failure to Timely Deliver; Buy-In. If the Company fails fails, for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program or such Securities are Warrant Preferred Shares, a certificate representing for the Securities so delivered number of Warrant Preferred Shares, Conversion Shares or Warrant Shares (as the case may be) to the Company by which such Buyer that is free from all restrictive entitled and other legends register such Warrant Preferred Shares, Conversion Shares or Warrant Shares (iias the case may be) on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program or such Securities are not Warrant Preferred Shares, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares of Common Conversion Shares or Warrant Shares so delivered (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the issuance or resale of the Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the issuance or resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant to the CompanyRegistration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion Shares or Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 2% of the product of (A) the sum of the number of shares of Common Stock not issued to such Buyer on or prior to the Required Delivery Date and to which such Buyer is entitled, and (B) any trading price of the Common Stock selected by such Buyer in writing as in effect at any time during the period beginning on the date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) not issued to such Buyer and ending on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly shares of Common Stock on the Company's share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three (3) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Certificate of Designations, Preferred Warrant or Warrant, as applicable, held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to, for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a the Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program or the Company’s securities are not DTC eligible, a certificate representing for the number of Note Conversion Shares, Warrant Conversion Shares, or Purchase Right Conversion Shares to which the Buyer is entitled and register such Note Conversion Shares, Warrant Conversion Shares, or Purchase Right Conversion Shares on the Company’s share register or, (II) if the Transfer Agent is participating in the DTC Fast Automated Securities so delivered Transfer Program, to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such the Buyer or the Buyer’s or such Buyer’s nominee designee with DTC for such number of shares of Common Note Conversion Shares, Warrant Shares, or Purchase Right Shares or Warrant Shares so delivered submitted for legend removal by the Buyer pursuant to Section 5(d) above (the Companyevent described in the immediately foregoing clause (I) above, thena “Delivery Failure”),then, in addition to all other remedies available to such the Buyer, the Company shall pay in cash to such the Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 2% of the product of (A) the sum of the number of shares of Common Shares or Warrant Shares (as the case may be) Stock not issued to such the Buyer on a timely basis or prior to the Required Delivery Date and to which such the Buyer is entitled entitled, and (B) the VWAP (as defined below) any trading price of the shares of Common Stock for selected by the five (5) Trading Day Buyer in writing as in effect at any time during the period immediately preceding beginning on the Required date of the delivery by the Buyer to the Company of the applicable Note Conversion Shares, Warrant Conversion Shares, or Purchase Right Conversion Shares and ending on the applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, the Company fails shall fail to so properly issue and deliver a certificate to the Buyer and register such unlegended certificates or so properly shares of Common Stock on the Company's share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, credit the balance account of such the Buyer or the Buyer’s or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which the Buyer submitted for legend removal by the Required Buyer pursuant to Section 5(d) above (ii) below or (II) a Delivery DateFailure occurs, and if on or after such Trading Day the Required Delivery Date such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such the Buyer of shares of Common Stock submitted for legend removal by the Buyer pursuant to Section 5(d) above that such the Buyer anticipated receiving from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three (3) Trading Business Days after such the Buyer’s request and in such the Buyer’s sole discretion, either (i) pay cash to such the Buyer in an amount equal to such the Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such the Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such the Buyer a certificate or certificates or credit such the balance account of the Buyer or the Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such the Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Note Conversion Shares, Warrant Shares, or Purchase Right Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such the Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Notes) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by the Buyer to the Company of the applicable Note Conversion Shares, Warrant Shares, or Purchase Right Shares and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit the Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Delivery DateFailure, this Section 5(e) shall not apply to the Buyer to the extent the Company has already paid such amounts in full to the Buyer with respect to such Delivery Failure, as applicable, pursuant to the analogous sections of the Note held by the Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) issue and deliver (or cause to be delivered) to a Buyer by the Required Delivery Date a certificate representing the Securities so delivered to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of Common Conversion Shares or Warrant Shares so delivered to the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 21% of the product of (A) the sum of the number of shares of Common Shares Stock not so delivered or Warrant Shares credited (as the case may be) not issued to such Buyer on a timely basis and to which or such Buyer is entitled and Buyer’s nominee multiplied by (B) the VWAP Closing Sale Price (as defined belowin the applicable Note or Warrant) of the shares of Common Stock for on the five (5) Trading Day period (as defined in the applicable Note or Warrant) immediately preceding the Required Delivery Date. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s or such Buyer’s nominee with DTC by the Required Delivery Date, and if on or after the Required Delivery Date such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock that such Buyer anticipated receiving from the Company without any restrictive legend (a “ Buy-In”)legend, then then, in addition to all other remedies available to such Buyer, the Company shall, within three (3) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased (the “ “Buy-In Price”), at which point the Company’s obligation to deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to deliver to such Buyer a certificate or certificates or credit such Buyer’s DTC account representing such number of shares of Common Stock that would have been issued if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares, Interest Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times (B) the average VWAP Closing Sale Price (as defined in the Warrants) of the Common Stock for on the five (5) Trading Day period immediately preceding the Required Delivery Date.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) issue and deliver (or cause to be delivered) to a Buyer by the Required Delivery Date a certificate representing the Securities so delivered to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of Common Shares or Warrant Shares so delivered to the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 21% of the product of (A) the sum of the number of shares of Common Shares or Warrant Shares (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer is entitled and (B) the VWAP Closing Sale Price (as defined below) of the shares of Common Stock for on the five (5) Trading Day period immediately preceding the Required Delivery Date. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s or such Buyer’s nominee with DTC by the Required Delivery Date, and if on or after the Required Delivery Date such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock that such Buyer anticipated receiving from the Company without any restrictive legend (a “ Buy-In”)legend, then then, in addition to all other remedies available to such Buyer, the Company shall, within three (3) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased (the “ “Buy-In Price”), at which point the Company’s obligation to deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to deliver to such Buyer a certificate or certificates or credit such Buyer’s DTC account representing such number of shares of Common Stock that would have been issued if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times (B) the average VWAP Closing Sale Price of the Common Stock for on the five (5) Trading Day period immediately preceding the Required Delivery Date.

Failure to Timely Deliver; Buy-In. If the Company fails , for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in the FAST, a certificate representing for the Securities so delivered number of Common Shares or Warrant Shares (as the case may be) to the Company by which such Buyer that is free from all restrictive entitled and other legends register such Common Shares or Warrant Shares (iias the case may be) on the Company’s share register or, if the Transfer Agent is participating in the FAST, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares Common Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of the Common Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant to the Registration Rights Agreement (x) so notify such Buyer and (y) deliver the Common Shares or Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Common Shares or Warrant Shares so delivered (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the Companyevent described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 21% of the product of (A) the sum of the number of shares of Common Stock not issued to such Buyer on or prior to the Required Delivery Date and to which such Buyer is entitled, and (B) any trading price of the Common Stock selected by such Buyer in writing as in effect at any time during the period beginning on the date of the delivery by such Buyer to the Company of the applicable Common Shares or Warrant Shares (as the case may be) not issued to such Buyer and ending on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in the FAST, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in the FAST, credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Common Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note or Warrant, as applicable, held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) issue and deliver (or cause to be delivered) to a Buyer by the Required Delivery Date a certificate representing the Securities so delivered to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of Common Conversion Shares or Warrant Shares so delivered to the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 2% of the product original principal amount of (A) the sum of the number of shares of Common Shares or Warrant Shares (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery DateBuyer’s Note. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s or such Buyer’s nominee with DTC by the Required Delivery Date, and if on or after the Required Delivery Date such Buyer (or any other Person in respect, or on behalf, of such Buyer) purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock, that such Buyer so anticipated receiving from the Company without any restrictive legend (a “ Buy-In”)legend, then then, in addition to all other remedies available to such Buyer, the Company shall, within three (3) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit such Buyer’s DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required Delivery Datedate of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii).

Failure to Timely Deliver; Buy-In. If the Company fails fails, for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in FAST, a certificate representing for the Securities so delivered number of Conversion Shares to the Company by which such Buyer that is free from all restrictive entitled and other legends or (ii) register such Conversion Shares on the Company’s share register or, if the Transfer Agent is participating in FAST, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares Conversion Shares submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of Common the Conversion Shares or Warrant submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares so delivered and the Company fails to promptly, but in no event later than as required pursuant to the CompanyRegistration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion Shares electronically without any restrictive legend by crediting such aggregate number of Conversion Shares submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, (a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 21% of the product of (A) the sum of the number of shares of Common Shares or Warrant Shares (as the case may be) Stock not issued to such Buyer on a timely basis or prior to the Required Delivery Date and to which such Buyer is entitled entitled, and (B) the VWAP (as defined below) any trading price of the shares of Common Stock for selected by such Buyer in writing as in effect at any time during the five period beginning on the date of the delivery by such Buyer to the Company of the applicable Conversion Shares and ending on the applicable Share Delivery Date (5) Trading Day period immediately preceding the Required each, a “Delivery DateFailure Payment”). In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in FAST, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in FAST, credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Notes) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares and ending on the date of such delivery and payment under this clause (ii) (each, a “Buy-In Payment Amount”). Nothing shall limit such Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such Delivery Failure Payment or Buy-In Payment Amount, as applicable, in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) fail, for any reason or for no reason, to issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, a certificate representing for the Securities so delivered number of Conversion Shares or Warrant Shares (as the case may be) to the Company by which such Buyer that is free from all restrictive entitled and other legends register such Conversion Shares or Warrant Shares (iias the case may be) on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of the Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, (x) so delivered notify such Buyer and (y) deliver the Conversion Shares or Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the Companyevent described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 2% of the product of (A) the sum of the number of shares of Common Stock not issued to such Buyer on or prior to the Required Delivery Date and to which such Buyer is entitled, and (B) any trading price of the Common Stock selected by such Buyer in writing as in effect at any time during the period beginning on the date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) not issued to such Buyer and ending on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Xxxxx’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note or Warrant, as applicable, held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) issue and deliver (or cause to be delivered) to a Buyer warrant holder by the Required Delivery Date a certificate representing the Securities so delivered to the Company by such Buyer warrant holder that is free from all restrictive and other legends or (ii) credit the balance account of such Buyerwarrant holder’s or such Buyerwarrant holder’s nominee with DTC for such number of shares of Common Shares or Warrant Shares so delivered to the Company, then, in addition to all other remedies available to such Buyerwarrant holder, the Company shall pay in cash to such Buyer warrant holder on each day Trading Day (as defined in the Warrant) after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 21% of the product of (A) the sum of the number of shares of Common Shares Stock not so delivered or Warrant Shares credited (as the case may be) not issued to such Buyer on a timely basis and to which warrant holder or such Buyer is entitled and warrant holder’s nominee multiplied by (B) the VWAP Closing Sale Price (as defined belowin the Warrants) of the shares of Common Stock for on the five (5) Trading Day period immediately preceding the Required Delivery Date. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyerwarrant holder’s or such Buyerwarrant holder’s nominee with DTC by the Required Delivery Date, and if on or after the Required Delivery Date such Buyer (or any other person in respect, or on behalf, of such warrant holder) purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer warrant holder of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock, that such Buyer warrant holder so anticipated receiving from the Company without any restrictive legend (a “ Buy-In”)legend, then then, in addition to all other remedies available to such warrant holder, the Company shall, within three five (35) Trading Days after such Buyerwarrant holder’s request and in such Buyerwarrant holder’s sole discretion, either (i) pay cash to such Buyer warrant holder in an amount equal to such Buyerwarrant holder’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyerwarrant holder’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit such Buyerwarrant holder’s DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer warrant holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer warrant holder by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required Delivery Datedate of the delivery by such warrant holder to the Company of the applicable Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii).

Failure to Timely Deliver; Buy-In. If the Company fails to (i) issue and deliver (or cause to be delivered) to a Buyer by the Required Delivery Date a certificate representing the Securities Conversion Shares or Warrant Shares (as the case may be) so delivered to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of Common Conversion Shares or Warrant Shares so delivered to the Company, then, in addition to all other remedies available to such Buyer, but subject to the Limitation on Damages (as defined in the Certificate of Designation), the Company shall pay in cash to such Buyer on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 21.0% of the product of (A) the sum of the number of shares of Common Conversion Shares or Warrant Shares (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer is entitled and (B) the VWAP Closing Sale Price (as defined belowin the Certificate of Designation) of the shares of Common Stock for the five (5) Trading Day period immediately preceding on the Required Delivery Date. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s or such Buyer’s nominee with DTC by the Required Delivery Date, and if on or after the Required Delivery Date such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock that such Buyer anticipated receiving from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three (3) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased (the “ “Buy-In Price”), at which point the Company’s obligation to deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to deliver to such Buyer a certificate or certificates or credit such Buyer’s DTC account representing such number of shares of Common Stock that would have been issued if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times (B) the average VWAP Closing Sale Price of the Common Stock for the five (5) Trading Day period immediately preceding on the Required Delivery Date.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) issue and deliver (or cause to be delivered) to a Buyer by the Required Delivery Date a certificate representing the Securities so delivered to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of Common Conversion Shares or Warrant Interest Shares so delivered to the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount in cash equal to 21.5% of the product of (A) the sum of the number of shares of Common Shares Stock not so delivered or Warrant Shares credited (as the case may be) not issued to such Buyer on a timely basis and to which or such Buyer is entitled and Buyer’s nominee multiplied by (B) the VWAP Closing Sale Price (as defined belowin the applicable Note) of the shares of Common Stock for on the five (5) Trading Day period (as defined in the applicable Note) immediately preceding the Required Delivery Date. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s or such Buyer’s nominee with DTC by the Required Delivery Date, and if on or after the Required Delivery Date such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock that such Buyer anticipated receiving from the Company without any restrictive legend (a “ Buy-In”)legend, then then, in addition to all other remedies available to such Buyer, the Company shall, within three (3) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased (the “ “Buy-In Price”), at which point the Company’s obligation to deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to deliver to such Buyer a certificate or certificates or credit such Buyer’s DTC account representing such number of shares of Common Stock that would have been issued if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Interest Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times (B) the average VWAP Closing Sale Price (as defined in the Note) of the Common Stock for on the five (5) Trading Day period immediately preceding the Required Delivery Date.

Failure to Timely Deliver; Buy-In. If the Company fails to, for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, a certificate representing for the Securities so delivered number of Conversion Shares to the Company by which such Buyer that is free from all restrictive entitled and other legends or (ii) register such Conversion Shares on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares Conversion Shares submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of Common the Conversion Shares or Warrant Shares so delivered submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant to the CompanyRegistration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion Shares or Warrant Shares electronically without any restrictive legend by crediting such aggregate number of Conversion Shares or Warrant Shares submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 21% of the product of (A) the sum of the number of shares of Common Shares or Warrant Shares (as the case may be) Stock not issued to such Buyer on a timely basis or prior to the Required Delivery Date and to which such Buyer is entitled entitled, and (B) the VWAP (as defined below) any trading price of the shares of Common Stock for selected by such Buyer in writing as in effect at any time during the five (5) Trading Day period immediately preceding beginning on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares and ending on the applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program (and in the case of Conversion Shares, if they may then be resold by such Buyer pursuant to an effective resale registration statement or so properly in reliance on Rule 144 (if then available)), credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of shares of Common Stock submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of- pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Notes) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) fail, for any reason or for no reason, to issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date a certificate representing Date, either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities so delivered to Transfer Program or such Conversion Shares or Warrant Shares (as the Company case may be) may not then be resold by such Buyer that pursuant to a Permitted Securities Transaction, a certificate for the number of Conversion Shares or Warrant Shares (as the case may be) to which such Buyer is free from all restrictive entitled and other legends register such Conversion Shares or Warrant Shares (iias the case may be) on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program and such Conversion Shares or Warrant Shares (as the case may be) may then be resold by such Buyer pursuant to a Permitted Securities Transaction, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares of Common Conversion Shares or Warrant Shares so delivered (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of the Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant to the CompanyRegistration Rights Agreement, (x) so notify such Buyer and (y) deliver the Conversion Shares or Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 2% one and one-quarter percent (1.25%) of the product of (A) the sum of the number of shares of Common Stock not issued to such Buyer on or prior to the Required Delivery Date and to which such Buyer is entitled, and (B) any trading price of the Common Stock selected by such Buyer in writing as in effect at any time during the period beginning on the date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) not issued to such Buyer and ending on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program or such Conversion Shares or Warrant Shares (as the case may be) may not then be resold by the applicable Buyer pursuant to a Permitted Securities Transaction, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program and such Conversion Shares or so properly Warrant Shares (as the case may be) may then be resold by such Buyer pursuant to a Permitted Securities Transaction, credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock Stock, as applicable, that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note or Warrant, as applicable, held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails fails, for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a the Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, a certificate representing the Securities so delivered to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of Common Shares or Warrant Shares so delivered to the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 2% of the product of (A) the sum of the number of shares of Common Shares or Warrant Shares (as the case may be) not issued to such Buyer on a timely basis and to which such the Buyer is entitled and (B) the VWAP register such Common Shares or Warrant Shares (as defined belowthe case may be) of on the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery Date. In addition to the foregoingCompany’s share register or, if the Company fails Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, to so properly deliver such unlegended certificates or so properly credit the balance account of the Buyer or the Buyer’s designee with DTC for such number of Common Shares or Warrant Shares (as the case may be) submitted for legend removal by the Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of the Common Shares or Warrant Shares (as the case may be) submitted for legend removal by the Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant to the Registration Rights Agreement (x) so notify the Buyer and (y) deliver the Common Shares or Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Common Shares or Warrant Shares (as the case may be) submitted for legend removal by the Buyer pursuant to Section 5(d) above to the Buyer’s or such Buyerits designee’s nominee balance account with DTC by through its Deposit/Withdrawal At Custodian system (the Required event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery DateFailure”), and if on or after such Trading Day the Required Delivery Date such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such the Buyer of shares of Common Stock submitted for legend removal by the Buyer pursuant to Section 5(d) above that such the Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such the Buyer’s request and in such the Buyer’s sole discretion, either (i) pay cash to such the Buyer in an amount equal to such the Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such the Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such the Buyer a certificate or certificates or credit such the balance account of the Buyer or the Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such the Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such the Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by the Buyer to the Company of the applicable Common Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit the Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to the Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Warrant held by the Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to, for any reason or for no reason (other than failure of a Buyer to (i) comply with Section 5(d)), issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date a certificate representing Date, either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities so delivered to Transfer Program or the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of applicable Common Shares or Warrant Shares so delivered (as the case may be) are not eligible to the Company, then, in addition be resold pursuant to all other remedies available an effective registration statement or pursuant to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 2% Rule 144 (assuming a Cashless Exercise of the product of (A) the sum of Warrants, as applicable), a certificate for the number of shares of Common Shares or Warrant Shares (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer is entitled and (B) the VWAP register such Common Shares or Warrant Shares (as defined belowthe case may be) of on the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery Date. In addition to the foregoingCompany’s share register or, if the Company fails Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of Common Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Required Registration Statement covering the resale of the Common Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to as required pursuant to the Registration Rights Agreement, (x) so notify such Buyer and (y) deliver the Common Shares or Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Common Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery DateFailure”), and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three (3) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Common Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note or Warrant, as applicable, held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to use its best efforts to (i) issue and deliver (or cause to be delivered) to a Buyer the Holder by the Required Delivery Date a certificate representing the Securities required to be so delivered by the Company to the Company by such Buyer Holder that is free from all restrictive and other legends or (ii) credit the balance account of such Buyerthe Holder’s or such Buyerthe Holder’s nominee with DTC for such number of shares of Common Shares or Warrant Shares required to be so delivered to by the Company, then, in addition to all other remedies available to such Buyerthe Holder, the Company shall pay in cash to such Buyer the Holder on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 21% of the product of (A) the sum original principal amount of the number of shares of Common Shares or Warrant Shares (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery DateNote. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyerthe Holder’s or such Buyerthe Holder’s nominee with DTC by the Required Delivery Date, and if on or after the Required Delivery Date such Buyer the Holder purchases (in an open market transaction or otherwise) shares of Common Stock Shares to deliver in satisfaction of a sale by such Buyer of shares the Holder of Common Stock Shares that such Buyer the Holder anticipated receiving from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three (3) Trading Days after such Buyerthe Holder’s request and in such Buyerthe Holder’s sole discretion, either (i) pay cash to such Buyer the Holder in an amount equal to such Buyerthe Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock Shares so purchased (the “ “Buy-In Price”), at which point the Company’s obligation to deliver such certificate or credit such Buyerthe Holder’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to deliver to such Buyer the Holder a certificate or certificates or credit such Buyerthe Holder’s DTC account representing such number of shares of Common Stock Shares that would have been issued if the Company timely complied with its obligations hereunder and pay cash to such Buyer the Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer the Holder by the Required Delivery Date times (B) the average of the VWAP of the Common Stock Shares for the five (5) Trading Day period immediately preceding the Required Delivery Date.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) fail, for any reason or for no reason, to issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, a certificate representing the Securities so delivered to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of Common Shares or Warrant Shares so delivered to the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 2% of the product of (A) the sum of the number of shares of Common Conversion Shares or Warrant Shares (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer is entitled and (B) the VWAP register such Conversion Shares or Warrant Shares (as defined belowthe case may be) of on the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery Date. In addition to the foregoingCompany’s share register or, if the Company fails Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by the Required such Buyer pursuant to Section 5(d) above (a “Delivery DateFailure”), and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three (3) Trading Days (as defined in the Notes) after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required Delivery Datedate of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof.

Failure to Timely Deliver; Buy-In. If the Company SPAC fails to (i) to, for any reason or for no reason, issue and deliver (or cause to be delivered) to a Buyer Subscriber (or its designee) by the Required Delivery Date Date, either if the Transfer Agent is not participating in FAST, a certificate representing for the number of Exchange Securities so delivered to which Subscriber is entitled and register such Exchange Securities on the Company by such Buyer that SPAC’s share register or, if the Transfer Agent is free from all restrictive and other legends or (ii) participating in FAST, to credit the balance account of such BuyerSubscriber or Subscriber’s or such Buyer’s nominee designee with DTC for such number of shares of Common Shares or Warrant Shares so delivered Exchange Securities to the Companywhich Subscriber is entitled (a “Delivery Failure”), then, in addition to all other remedies available to such BuyerSubscriber, the Company SPAC shall pay in cash to such Buyer Subscriber on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 2% of the product of (A) the sum of the number of shares of SPAC Common Shares or Warrant Shares (as the case may be) Stock not issued to such Buyer Subscriber on a timely basis or prior to the Required Delivery Date and to which such Buyer Subscriber is entitled entitled, and (B) the VWAP (as defined below) any trading price of the shares of SPAC Common Stock for selected by Subscriber in writing as in effect at any time during the five (5) Trading Day period immediately preceding beginning on the Required Delivery Date and ending on the applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Company fails Required Delivery Date, if the Transfer Agent is not participating in FAST, the SPAC shall fail to so properly issue and deliver a certificate to Subscriber and register such unlegended certificates or so properly shares of SPAC Common Stock on the SPAC’s share register or, if the Transfer Agent is participating in FAST, credit the balance account of such BuyerSubscriber or Subscriber’s or such Buyer’s nominee designee with DTC by for the Required Delivery Datenumber of shares of Exchange Securities to which Subscriber is entitled, and if on or after the Required Delivery Date such Buyer Trading Day Subscriber purchases (in an open market transaction or otherwise) shares of SPAC Common Stock to deliver in satisfaction of a sale by such Buyer Subscriber of shares of Common Stock that such Buyer anticipated receiving the Exchange Securities to which Subscriber is entitled to receive from the Company without any restrictive legend SPAC (a “ “Buy-In”), then the Company SPAC shall, within three two (32) Trading Days after such BuyerSubscriber’s request and in such BuyerSubscriber’s sole discretion, either (i) pay cash to such Buyer Subscriber in an amount equal to such BuyerSubscriber’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of SPAC Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the CompanySPAC’s obligation to so deliver such certificate or credit such BuyerSubscriber’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer Subscriber a certificate or certificates or credit such Buyerthe balance account of Subscriber or Subscriber’s designee with DTC account representing such number of shares of SPAC Common Stock that would have been issued so delivered if the Company SPAC timely complied with its obligations hereunder and pay cash to such Buyer Subscriber in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Shares or Warrant Shares (as the case may be) Exchange Securities that the Company SPAC was required to deliver to such Buyer Subscriber by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Notes) of the SPAC Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required Delivery DateDate and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit Subscriber’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s or SPAC’s, as applicable, failure to timely deliver certificates representing shares of SPAC Common Stock (or to electronically deliver such shares of SPAC Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Delivery Failure, this Section 6(e) shall not apply to Subscriber to the extent the SPAC has already paid such amounts in full to Subscriber with respect to such Delivery Failure, as applicable, pursuant to the analogous sections of the Note held by Subscriber.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) issue and deliver (or cause to be delivered) to a Buyer by the Required Delivery Date a certificate representing the Securities so delivered to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of Common Shares or Warrant Shares so delivered to the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 21% of the product of (A) the sum of the number of shares of Common Shares or Warrant Shares (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery Date. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s or such Buyer’s nominee with DTC by the Required Delivery Date, and if on or after the Required Delivery Date such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock that such Buyer anticipated receiving from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three (3) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased (the “ “Buy-In Price”), at which point the Company’s obligation to deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to deliver to such Buyer a certificate or certificates or credit such Buyer’s DTC account representing such number of shares of Common Stock that would have been issued if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times (B) the average VWAP of the Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery Date.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) use its best efforts to issue and deliver (or cause to be delivered) to a Buyer by the Holder within two (2) Business Days following the Required Delivery Date a certificate representing the Securities required to be so delivered by the Company to the Company by such Buyer Holder that is free from all restrictive and other legends or (ii) credit the balance account of such Buyerthe Holder’s or such Buyerthe Holder’s nominee with DTC for within two (2) Business Days following the Required Delivery Date with such number of shares of Common Shares or Warrant Shares required to be so delivered to by the Company, then, in addition to all other remedies available to such Buyerthe Holder, the Company shall pay in cash to such Buyer the Holder on each day after such second (2nd) Business Day following the Required Delivery Date that the such issuance or credit of such shares is not timely effected an amount equal to 20.5% of the product of (A) the sum aggregate principal amount of the number of shares of Common Shares or Warrant Shares (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery DateNotes exchanged hereunder. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyerthe Holder’s or such Buyerthe Holder’s nominee with DTC by the Required Delivery Date, and if on or after the Required Delivery Date such Buyer the Holder purchases (in an open market transaction or otherwise) shares of Common Stock Shares to deliver in satisfaction of a sale by such Buyer the Holder of shares of Common Stock Securities that such Buyer the Holder anticipated receiving from the Company without any restrictive legend (a “ Buy-In”)legend, then then, in addition to all other remedies available to the Holder, the Company shall, within three (3) Trading Business Days after such Buyerthe Holder’s request and in such Buyerthe Holder’s sole discretion, either (i) pay cash to such Buyer the Holder in an amount equal to such Buyerthe Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock Shares so purchased (the “ “Buy-In Price”), at which point the Company’s obligation to deliver such certificate or credit such Buyerthe Holder’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to deliver to such Buyer the Holder a certificate or certificates or credit such Buyerthe Holder’s DTC account representing such number of shares of Common Stock Shares that would have been issued if the Company timely complied with its obligations hereunder and pay cash to such Buyer the Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer the Holder by the Required Delivery Date times (B) the average VWAP closing sale price of the Common Stock for Shares on the five (5) Trading Business Day period immediately preceding the Required Delivery Date.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) issue and deliver (or cause to be delivered) to a Buyer by the Required Delivery Date a certificate representing the Securities so delivered to the Company by such Buyer that is free from all restrictive and other legends or (ii) following registration on a Registration Statement, credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of Common Shares or Warrant Shares Securities so delivered to the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 21% of the product of (A) the sum of the number of shares of Common Shares or Warrant Shares (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer is entitled and (B) the VWAP Exercise Price (as defined belowin the applicable Warrant) attributable to the Securities that the issuance or credit of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery Datesuch was not timely effected. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s or such Buyer’s nominee with DTC by the Required Delivery Date, and if on or after the Required Delivery Date such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock that such Buyer anticipated receiving from the Company without any restrictive legend (a “ Buy-In”)legend, then then, in addition to all other remedies available to such Buyer, the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased (the “ “Buy-In Price”), at which point the Company’s obligation to deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to deliver to such Buyer a certificate or certificates or credit such Buyer’s DTC account representing such number of shares of Common Stock that would have been issued if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times (B) the average VWAP Closing Sale Price (as defined in the Warrants) of the Common Stock for on the five (5) Trading Day period immediately preceding the Required Delivery Date.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) use its best efforts to issue and deliver (or cause to be delivered) to a Buyer by the Holder within two (2) Business Days following the Required Delivery Date a certificate representing the Securities Holder Exchanged Shares required to be so delivered by the Company to the Company by such Buyer Holder that is free from all restrictive and other legends or (ii) credit the balance account of such Buyerthe Holder’s or such Buyerthe Holder’s nominee with DTC for within two (2) Business Days following the Required Delivery Date with such number of shares of Common Shares or Warrant Shares required to be so delivered to by the Company, then, in addition to all other remedies available to such Buyerthe Holder, the Company shall pay in cash to such Buyer the Holder on each day after such second (2nd) Business Day following the Required Delivery Date that the such issuance or credit of such shares is not timely effected an amount equal to 20.5% of the product of (A) the sum aggregate principal amount of the number of shares of Common Shares or Warrant Shares (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery DateNotes exchanged hereunder. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyerthe Holder’s or such Buyerthe Holder’s nominee with DTC by the Required Delivery Date, and if on or after the Required Delivery Date such Buyer the Holder purchases (in an open market transaction or otherwise) shares of Common Stock Shares to deliver in satisfaction of a sale by such Buyer the Holder of shares of Common Stock Holder Exchanged Shares that such Buyer the Holder anticipated receiving from the Company without any restrictive legend (a “ Buy-In”)legend, then then, in addition to all other remedies available to the Holder, the Company shall, within three (3) Trading Business Days after such Buyerthe Holder’s request and in such Buyerthe Holder’s sole discretion, either (i) pay cash to such Buyer the Holder in an amount equal to such Buyerthe Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock Shares so purchased (the “ “Buy-In Price”), at which point the Company’s obligation to deliver such certificate or credit such Buyerthe Holder’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to deliver to such Buyer the Holder a certificate or certificates or credit such Buyerthe Holder’s DTC account representing such number of shares of Common Stock Shares that would have been issued if the Company timely complied with its obligations hereunder and pay cash to such Buyer the Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer the Holder by the Required Delivery Date times (B) the average VWAP closing sale price of the Common Stock for Shares on the five (5) Trading Business Day period immediately preceding the Required Delivery Date.

Failure to Timely Deliver; Buy-In. If the Company fails fails, for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program or the Required Unrestricted Conditions are not satisfied, a certificate representing for the Securities so delivered number of Conversion Shares or Warrant Shares (as the case may be) to the Company by which such Buyer that is free from all restrictive entitled and other legends register such Conversion Shares or Warrant Shares (iias the case may be) on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program and the Required Unrestricted Conditions are satisfied, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares of Common Conversion Shares or Warrant Shares so delivered (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of the Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant to the CompanyRegistration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion Shares or Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 21% of the product of (A) the sum of the number of shares Common Shares not issued to such Buyer on or prior to the Required Delivery Date and to which such Buyer is entitled, and (B) any trading price of the Common Shares selected by such Buyer in writing as in effect at any time during the period beginning on the date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) not issued to such Buyer and ending on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly Common Shares on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of Common Shares to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock Shares to deliver in satisfaction of a sale by such Buyer of shares of Common Stock Shares submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock Shares so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock Shares that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) Shares on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing Common Shares (or to electronically deliver such Common Shares) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note or Warrant, as applicable, held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) issue and deliver (or cause to be delivered) to a Buyer by the Required Delivery Date a certificate representing the Securities so delivered to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of Common Conversion Shares or Warrant Shares so delivered to the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 2% of the product of (A) the sum of the number of shares of Common Shares or Warrant Shares (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery Date. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s or such Buyer’s nominee with DTC by the Required Delivery Date, and if on or after the Required Delivery Date such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Buyer anticipated receiving from the Company without any restrictive legend (a “ Buy-In”)legend, then then, in addition to all other remedies available to such Buyer, the Company shall, within three (3) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit such Buyer’s DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required Delivery Datedate of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii).

Failure to Timely Deliver; Buy-In. If the Company fails fails, for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in FAST or the Resale Eligibility Conditions are not satisfied, a certificate representing the Securities so delivered to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of Common Shares or Warrant Shares so delivered to the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 2% of the product of (A) the sum of the number of shares of Common Conversion Shares or Warrant Shares (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer is entitled and (B) the VWAP register such Conversion Shares or Warrant Shares (as defined belowthe case may be) of on the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery Date. In addition to the foregoingCompany’s share register or, if the Company fails Transfer Agent is participating in FAST and the Resale Eligibility Conditions are satisfied, to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Required Registration Statement covering the resale of the Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant to the Registration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion Shares or Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery DateFailure”), and if on or after the Required Delivery Date such Trading Day such Buyer purchases acquires (in an open market transaction transaction, stock loan or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissions, stock loans and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased acquired (including, without limitation, by any other Person in respect, or on behalf, of the Holder) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). In addition to the foregoing, if the Holder is a Major Buyer, and on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in FAST or the Resale Eligibility Conditions are not satisfied, the Company shall fail to issue and deliver a certificate to a Major Buyer and register such shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in FAST and the Resale Eligibility Conditions are satisfied, the Transfer Agent shall fail to credit the balance account of such Major Buyer or such Major Buyer’s designee with DTC for the number of shares of Common Stock to which such Major Buyer submitted for legend removal by such Major Buyer pursuant to Section 5(d) or (II) a Notice Failure occurs, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Share Delivery Date and during such Delivery Failure an amount equal to 1% of the product of (A) the sum of the number of shares of Common Stock not issued to such Major Buyer on or prior to the Required Delivery Date and to which such Major Buyer is entitled, multiplied by (B) any trading price of the Common Stock selected by such Major Buyer in writing as in effect at any time during the period beginning on the delivery by such Major Buyer to the Company of the applicable Conversion Notice or Warrant Notice (as the case may be) and ending on the applicable Share Delivery Date. Nothing shall limit such Xxxxx’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery Failure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Certificate of Designations or Warrant, as applicable, with respect to the Preferred Shares or Warrants, as applicable, then held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) issue and deliver (or cause to be delivered) to a Buyer by the Required Delivery Date a certificate representing the Securities so delivered to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of Common Shares or Warrant Shares so delivered to the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 2% of the product of (A) the sum of the number of shares of Common Shares or Warrant Shares (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer is entitled and (B) the VWAP Closing Sale Price (as defined belowin the Warrants) of the shares of Common Stock for on the five (5) Trading Day period immediately preceding the Required Delivery Date. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s or such Buyer’s nominee with DTC by the Required Delivery Date, and if on or after the Required Delivery Date such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock that such Buyer anticipated receiving from the Company without any restrictive legend (a “ Buy-In”)legend, then then, in addition to all other remedies available to such Buyer, the Company shall, within three (3) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased (the “ “Buy-In Price”), at which point the Companyto deliver to such Buyer by the Required Delivery Date times (B) the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the Required Delivery Xxxx.Xxxxxxx’s obligation to deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to deliver to such Buyer a certificate or certificates or credit such Buyer’s DTC account representing such number of shares of Common Stock that would have been issued if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times (B) the average VWAP of the Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery Daterequired.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) fail, for any reason or for no reason, to issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in FAST, a certificate representing for the Securities so delivered number of Conversion Shares to the Company by which such Buyer that is free from all restrictive entitled and other legends or (ii) register such Conversion Shares on the Company’s share register or, if the Transfer Agent is participating in FAST, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares Conversion Shares submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of Common the Conversion Shares or Warrant submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares so delivered and the Company fails to promptly, but in no event later than as required pursuant to the CompanyRegistration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion Shares electronically without any restrictive legend by crediting such aggregate number of Conversion Shares submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 2% of the product of (A) the sum of the number of shares of Common Shares or Warrant Shares (as the case may be) Stock not issued to such Buyer on a timely basis or prior to the Required Delivery Date and to which such Buyer is entitled entitled, and (B) the VWAP (as defined below) any trading price of the shares of Common Stock for selected by such Buyer in writing as in effect at any time during the five (5) Trading Day period immediately preceding beginning on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares and ending on the applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in FAST, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in FAST, credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Notes) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Bxxxx’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to, for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, a certificate representing for the Securities so delivered number of Conversion Shares or Warrant Shares (as the case may be) to the Company by which such Buyer that is free from all restrictive entitled and other legends register such Conversion Shares or Warrant Shares (iias the case may be) on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares of Common Conversion Shares or Warrant Shares so delivered (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of the Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant to the CompanyRegistration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion Shares or Warrant Shares (as the case may be) electronically without any restrictive legend by crediting such aggregate number of Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 2% of the product of (A) the sum of the number of shares of Common Stock not issued to such Buyer on or prior to the Required Delivery Date and to which such Buyer is entitled, and (B) any trading price of the Common Stock selected by such Buyer in writing as in effect at any time during the period beginning on the date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) not issued to such Buyer and ending on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly shares of Common Stock on the Company's share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three (3) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Notes) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note or Warrant, as applicable, held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails fails, for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in FAST, a certificate representing for the Securities so delivered number of Conversion Shares or Warrant Shares (as the case may be) to the Company by which such Buyer that is free from all restrictive entitled and other legends register such Conversion Shares or Warrant Shares (iias the case may be) on the Company’s share register or, if the Transfer Agent is participating in FAST, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares of Common Conversion Shares or Warrant Shares so delivered (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of the Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant to the CompanyRegistration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion Shares or Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 2% of the product of (A) the sum of the number of shares of Common Stock not issued to such Buyer on or prior to the Required Delivery Date and to which such Buyer is entitled, and (B) any trading price of the Common Stock selected by such Buyer in writing as in effect at any time during the period beginning on the date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) not issued to such Buyer and ending on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in FAST, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in FAST, credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases acquires (in an open market transaction transaction, stock loan or otherwise) shares of Common Stock corresponding to deliver in satisfaction all or any portion of a sale by such Buyer the number of shares of Common Stock that submitted for legend removal by such Buyer anticipated receiving from the Company without any restrictive legend pursuant to Section 5(d) above (a “ “Buy-In”), then the Company shall, within three one (31) Trading Days Day after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissions, stock loan costs and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Certificate of Designations) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Xxxxx’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Certificate of Designations or Warrant, as applicable, with respect to the Preferred Shares or Warrants, as applicable, then held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to use its best efforts to (i) issue and deliver (or cause to be delivered) to a Buyer by the Holder within two (2) Trading Days following the Required Delivery Date a certificate representing the Securities Notes or Conversion Shares (as the case may be) required to be so delivered by the Company to the Company by such Buyer Holder that is free from all restrictive and other legends or (ii) in the case of Conversion Shares, credit the balance account of such Buyerthe Holder’s or such Buyerthe Holder’s nominee with DTC for within two (2) Trading Days following the Required Delivery Date with such number of shares of Common Conversion Shares or Warrant Shares required to be so delivered to by the Company, then, in addition to all other remedies available to such Buyerthe Holder, the Company shall pay in cash to such Buyer the Holder on each day after such second (2nd) Trading Day following the Required Delivery Date that the such issuance or credit of such shares is not timely effected an amount equal to 21% of the product of (A) the sum aggregate then-outstanding principal amounts of the number of shares of Common Shares or Warrant Shares (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery DateNotes. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyerthe Holder’s or such Buyerthe Holder’s nominee with DTC by the Required Delivery Date, and if on or after the Required Delivery Date such Buyer the Holder purchases (in an open market transaction or otherwise) shares of Common Stock Shares to deliver in satisfaction of a sale by such Buyer of shares the Holder of Common Stock Shares that such Buyer the Holder anticipated receiving from the Company without any restrictive legend (a “ Buy-In”)legend, then then, in addition to all other remedies available to the Holder, the Company shall, within three (3) Trading Days after such Buyerthe Holder’s request and in such Buyerthe Holder’s sole discretion, either (i) pay cash to such Buyer the Holder in an amount equal to such Buyerthe Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock Shares so purchased (the “ “Buy-In Price”), at which point the Company’s obligation to deliver such certificate or credit such Buyerthe Holder’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to deliver to such Buyer the Holder a certificate or certificates or credit such Buyerthe Holder’s DTC account representing such number of shares of Common Stock Shares that would have been issued if the Company timely complied with its obligations hereunder and pay cash to such Buyer the Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer the Holder by the Required Delivery Date times (B) the average VWAP Closing Sale Price (as defined in the Convertible Notes) of the Common Stock for Shares on the five (5) Trading Day period (as defined in the Convertible Notes) immediately preceding the Required Delivery Date.

Failure to Timely Deliver; Buy-In. If the Company fails shall fail, for any reason or for no reason, to either (iI) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, to issue and deliver (or cause to be delivered) to a Buyer by the Required Delivery Date (or its designee) a certificate representing the Securities so delivered to the Company by such Buyer that is free from all restrictive and other legends or (ii) and registered on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares of Common Conversion Shares or Warrant Shares Shares, as applicable, so delivered to the CompanyCompany or (II) if a Registration Statement covering the resale of for such number of Series A Conversion Shares or Warrant Shares, as applicable, so delivered to the Company (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant to the Registration Rights Agreement (x) so notify such Buyer and (y) deliver the Series A Conversion Shares or Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Series A Conversion Shares or Warrant Shares, as applicable, to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of Deadline and during such shares is not timely effected Delivery Failure an amount equal to 2% of the product of (A) the sum of the number of shares of Common Shares or Warrant Shares (as the case may be) Stock not issued to such Buyer on a timely basis or prior to the Share Delivery Deadline and to which such Buyer is entitled entitled, and (B) the VWAP (as defined below) any trading price of the shares of Common Stock selected by such Buyer in writing as in effect at any time during the period beginning on the date such Buyer delivered such Conversion Shares or Warrant Shares, as applicable, to the Company for legend removal and ending on the five (5) Trading Day period immediately preceding the Required applicable Share Delivery DateDeadline. In addition to the foregoing, if on or prior to the Company fails to so properly deliver such unlegended certificates Share Delivery Deadline either a Delivery Failure or so properly credit the balance account of such Buyer’s or such Buyer’s nominee with DTC by the Required Delivery Datea Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock issuable upon such exercise that such Buyer anticipated receiving from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three (3) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit such Buyer’s DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Share Delivery Date times Deadline, multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note or Warrant, as applicable, held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails fails, for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a Buyer the Holder (or its designee) by the Required Delivery Date Date, if the Transfer Agent is not participating in the DTC Fast Automated New Securities Transfer Program, a certificate representing for the number of New Conversion Shares to which the Holder is entitled and register such New Conversion Shares on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated New Securities so delivered Transfer Program, to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyerthe Holder or the Holder’s or such Buyer’s nominee designee with DTC for such number of shares of Common New Conversion Shares or Warrant Shares so delivered submitted for legend removal by the Holder pursuant to the CompanySection 7(d) above (a “Delivery Failure”), then, in addition to all other remedies available to such Buyerthe Holder, the Company shall pay in cash to such Buyer the Holder on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 2% of the product of (A) the sum of the number of shares of Common Shares or Warrant Shares (as the case may be) Stock not issued to such Buyer the Holder on a timely basis or prior to the Required Delivery Date and to which such Buyer the Holder is entitled entitled, and (B) the VWAP (as defined below) any trading price of the shares of Common Stock for selected by the five (5) Trading Day Holder in writing as in effect at any time during the period immediately preceding beginning on the Required date of the delivery by the Holder to the Company of the applicable New Conversion Shares and ending on the applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in the DTC Fast Automated New Securities Transfer Program, the Company fails shall fail to so properly issue and deliver a certificate to the Holder and register such unlegended certificates or so properly shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated New Securities Transfer Program, credit the balance account of such Buyerthe Holder or the Holder’s or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which the Holder submitted for legend removal by the Required Delivery DateHolder pursuant to Section 7(d) above (ii) below, and if on or after such Trading Day the Required Delivery Date such Buyer Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer the Holder of shares of Common Stock submitted for legend removal by the Holder pursuant to Section 7(d) above that such Buyer anticipated receiving the Holder is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyerthe Holder’s request and in such Buyerthe Holder’s sole discretion, either (i) pay cash to such Buyer the Holder in an amount equal to such Buyerthe Holder’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyerthe Holder’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer the Holder a certificate or certificates or credit such Buyerthe balance account of the Holder or the Holder’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer the Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common New Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer the Holder by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the New Note) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by the Holder to the Company of the applicable New Conversion Shares and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit the Holder’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Delivery DateFailure, this Section 7(e) shall not apply to the Holder the extent the Company has already paid such amounts in full to the Holder with respect to such Delivery Failure, as applicable, pursuant to the analogous sections of the New Note, as applicable, held by the Holder.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) fail, for any reason or for no reason, to issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, a certificate representing for the Securities so delivered number of Conversion Shares to the Company by which such Buyer that is free from all restrictive entitled and other legends or (ii) register such Conversion Shares on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares Conversion Shares submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of Common the Conversion Shares or Warrant submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares so delivered and the Company fails to promptly, but in no event later than as required pursuant to the CompanyRegistration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion Shares electronically without any restrictive legend by crediting such aggregate number of Conversion Shares submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 2% of the product of (A) the sum of the number of shares of Common Shares or Warrant Shares (as the case may be) Stock not issued to such Buyer on a timely basis or prior to the Required Delivery Date and to which such Buyer is entitled entitled, and (B) the VWAP (as defined below) any trading price of the shares of Common Stock for selected by such Buyer in writing as in effect at any time during the five (5) Trading Day period immediately preceding beginning on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares and ending on the applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly shares of Common Stock on the Company's share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three (3) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Notes) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails fails, for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a Buyer Holder (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, a certificate representing the Securities so delivered to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of Common Shares or Warrant Shares so delivered to the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 2% of the product of (A) the sum of the number of shares of Common Conversion Shares or Warrant Shares (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer Holder is entitled and (B) the VWAP register such Conversion Shares or Warrant Shares (as defined belowthe case may be) of on the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery Date. In addition to the foregoingCompany’s share register or, if the Company fails Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, to so properly deliver such unlegended certificates or so properly credit the balance account of such BuyerHolder or such Holder’s designee with DTC for such number of Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Holder pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of the Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Holder pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant to the Registration Rights Agreement (x) so notify such Holder and (y) deliver the Conversion Shares or Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by such Holder pursuant to Section 5(d) above to such Holder’s or such Buyerits designee’s nominee balance account with DTC by through its Deposit/Withdrawal At Custodian system (the Required event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery DateFailure”), and if on or after the Required Delivery Date such Buyer Trading Day such Holder purchases (in an open market transaction or otherwise) shares of Common Stock Ordinary Shares to deliver in satisfaction of a sale by such Buyer Holder of shares of Common Stock Ordinary Shares submitted for legend removal by such Holder pursuant to Section 5(d) above that such Buyer anticipated receiving Holder is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such BuyerHolder’s request and in such BuyerHolder’s sole discretion, either (iI) pay cash to such Buyer Holder in an amount equal to such BuyerHolder’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares Ordinary Shares so purchased) (including, without limitation, by any other Person in respect, or on behalf, of Common Stock so purchased the Holder) (the “ “Buy-In Price”), at which point the Company’s obligation related conversion or exercise shall be deemed consummated without the need for the Company to deliver such certificate or credit such BuyerHolder’s balance account shall terminate and such shares shall be cancelledaccount, or (iiII) the Company shall promptly honor its obligation to so deliver to such Buyer Holder a certificate or certificates or credit the balance account of such BuyerHolder or such Holder’s designee with DTC account representing such number of shares of Common Stock Ordinary Shares that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer Holder by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Holder to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Xxxxxx’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing Ordinary Shares (or to electronically deliver such Ordinary Shares) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Holder to the extent the Company has already paid such amounts in full to such Holder with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note or Warrant, as applicable, held by such Holder.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) issue and deliver (or cause to be delivered) to a Buyer by the Required Delivery Date a certificate representing the Securities so delivered to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of Common Shares or Warrant Shares so delivered to the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 2% of the product of (A) the sum of the number of shares of Common Shares or Warrant Shares (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer is entitled and (B) the VWAP Closing Sale Price (as defined belowin the Warrants) of the shares of Common Stock for on the five (5) Trading Day period immediately preceding the Required Delivery Date. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s or such Buyer’s nominee with DTC by the Required Delivery Date, and if on or after the Required Delivery Date such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock that such Buyer anticipated receiving from the Company without any restrictive legend (a “ Buy-In”)legend, then then, in addition to all other remedies available to such Buyer, the Company shall, within three (3) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased (the “ “Buy-In Price”), at which point the Company’s obligation to deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to deliver to such Buyer a certificate or certificates or credit such Buyer’s DTC account representing such number of shares of Common Stock that would have been issued if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times (B) the average VWAP Closing Sale Price of the Common Stock for on the five (5) Trading Day period immediately preceding the Required Delivery Date.

Failure to Timely Deliver; Buy-In. If the Company fails fails, for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, a certificate representing for the Securities so delivered number of Conversion Shares to the Company by which such Buyer that is free from all restrictive entitled and other legends or (ii) register such Conversion Shares on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, to credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of shares of Common Conversion Shares or Warrant Shares so delivered submitted for legend removal by such Buyer pursuant to the CompanySection 5(d) above (a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 21.5% of the product of (A) the sum of the number of shares of Common Shares or Warrant Shares (as the case may be) Stock not issued to such Buyer on a timely basis or prior to the Required Delivery Date and to which such Buyer is entitled entitled, and (B) the VWAP (as defined below) any trading price of the shares of Common Stock for selected by such Buyer in writing as in effect at any time during the five (5) Trading Day period immediately preceding beginning on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares and ending on the applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, the Company fails shall fail to so properly issue and deliver a certificate to a Buyer and register such unlegended certificates or so properly shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for the number of shares of Common Stock to which such Buyer submitted for legend removal by the Required Delivery Datesuch Buyer pursuant to Section 5(d) above (ii) below, and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Notes) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Delivery Failure pursuant to the analogous sections of the Note held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails fails, for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, a certificate representing the Securities so delivered to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of Common Shares or Warrant Shares so delivered to the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 2% of the product of (A) the sum of the number of shares of Common Conversion Shares or Warrant Shares (as the case may be) not issued to such Buyer on a timely basis and to which such Buyer is entitled and (B) register such Conversion Shares on the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required Delivery Date. In addition to the foregoingCompany’s share register or, if the Company fails Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s Buyer or such Buyer’s nominee designee with DTC for such number of Conversion Shares submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Required Registration Statement covering the resale of the Conversion Shares submitted for legend removal by such Buyer pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant to the Registration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion Shares electronically without any restrictive legend by crediting such aggregate number of Conversion Shares submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery DateFailure”), and if on or after the Required Delivery Date such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer anticipated receiving is entitled to receive from the Company without any restrictive legend (a “ “Buy-In”), then the Company shall, within three two (32) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Notes) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by such Buyer to the Company of the applicable Conversion Shares and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit such Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note held by such Buyer.

Failure to Timely Deliver; Buy-In. If the Company fails to (i) issue and deliver (or cause to be delivered) to a Buyer by the Required Delivery Date a certificate representing the Securities so delivered to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyer’s or such Buyer’s nominee with DTC for such number of shares of Common Conversion Shares or Warrant Shares so delivered to the Company, then, in addition to all other remedies available to such Buyer, the Company shall pay in cash to such Buyer on each day Trading Day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 21% of the product of (A) the sum of the number of shares of Common Shares Stock not so delivered or Warrant Shares credited (as the case may be) not issued to such Buyer on a timely basis and to which or such Buyer is entitled and Buyer’s nominee multiplied by (B) the VWAP (as defined below) Closing Sale Price of the shares of Common Stock for on the five (5) Trading Day period immediately preceding the Required Delivery Date. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Buyer’s or such Buyer’s nominee with DTC by the Required Delivery Date, and if on or after the Required Delivery Date such Buyer (or any other Person in respect, or on behalf, of such Buyer) purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Buyer of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock, that such Buyer so anticipated receiving from the Company without any restrictive legend (a “ Buy-In”)legend, then then, in addition to all other remedies available to such Buyer, the Company shall, within three (3) Trading Days after such Buyer’s request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit such Buyer’s DTC account representing such number of shares of Common Stock that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Series O Warrants) of the Common Stock for the five (5) on any Trading Day during the period immediately preceding commencing on the Required Delivery Datedate of the delivery by such Buyer to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii).

Failure to Timely Deliver; Buy-In. If the Company fails fails, for any reason or for no reason, to (i) issue and deliver (or cause to be delivered) to a Buyer the Creditor (or its designee) by the Required Delivery Date Date, either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program or the Required Unrestricted Conditions are not satisfied, a certificate representing for the number of Conversion Shares or Warrant Shares (as the case may be) to which the Creditor is entitled and register such Conversion Shares or Warrant Shares (as the case may be) on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities so delivered Transfer Program and the Required Unrestricted Conditions are satisfied, to the Company by such Buyer that is free from all restrictive and other legends or (ii) credit the balance account of such Buyerthe Creditor or the Creditor’s or such Buyer’s nominee designee with DTC for such number of shares of Common Conversion Shares or Warrant Shares so delivered (as the case may be) submitted for legend removal by the Creditor pursuant to Section 5(d) above or (II) if the Registration Statement covering the resale of the Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by the Creditor pursuant to Section 5(d) above (the “Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant to the CompanyRegistration Rights Agreement (x) so notify the Creditor and (y) deliver the Conversion Shares or Warrant Shares, as applicable, electronically without any restrictive legend by crediting such aggregate number of Conversion Shares or Warrant Shares (as the case may be) submitted for legend removal by the Creditor pursuant to Section 5(d) above to the Creditor’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyerthe Creditor, the Company shall pay in cash to such Buyer the Creditor on each day after the Required Share Delivery Date that the issuance or credit of and during such shares is not timely effected Delivery Failure an amount equal to 21% of the product of (A) the sum of the number of shares Common Shares not issued to the Creditor on or prior to the Required Delivery Date and to which the Creditor is entitled, and (B) any trading price of the Common Shares selected by the Creditor in writing as in effect at any time during the period beginning on the date of the delivery by the Creditor to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) not issued to such Buyer and ending on a timely basis and to which such Buyer is entitled and (B) the VWAP (as defined below) of the shares of Common Stock for the five (5) Trading Day period immediately preceding the Required applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery Date either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, the Company fails shall fail to so properly issue and deliver a certificate to the Creditor and register such unlegended certificates or so properly Common Shares on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, credit the balance account of such Buyerthe Creditor or the Creditor’s or such Buyer’s nominee designee with DTC for the number of Common Shares to which the Creditor submitted for legend removal by the Required Delivery DateCreditor pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after such Trading Day the Required Delivery Date such Buyer Creditor purchases (in an open market transaction or otherwise) shares of Common Stock Shares to deliver in satisfaction of a sale by such Buyer of shares the Creditor of Common Stock Shares submitted for legend removal by the Creditor pursuant to Section 5(d) above that such Buyer anticipated receiving the Creditor is entitled to receive from the Company without any restrictive legend (a “ Buy-In”)Company, then the Company shall, within three two (32) Trading Days after such Buyerthe Creditor’s request and in such Buyerthe Creditor’s sole discretion, either (i) pay cash to such Buyer the Creditor in an amount equal to such Buyerthe Creditor’s total purchase price (including brokerage commissionscommissions and other out-of-pocket expenses, if any) , for the shares of Common Stock Shares so purchased purchased) (the “ “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyerthe Creditor’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer the Creditor a certificate or certificates or credit such Buyerthe balance account of the Creditor or the Creditor’s designee with DTC account representing such number of shares of Common Stock Shares that would have been issued so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer the Creditor in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Conversion Shares or Warrant Shares (as the case may be) that the Company was required to deliver to such Buyer the Creditor by the Required Delivery Date times multiplied by (B) the average VWAP lowest Closing Sale Price (as defined in the Warrants) of the Common Stock for the five (5) Shares on any Trading Day during the period immediately preceding commencing on the Required date of the delivery by the Creditor to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit the Creditor’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing Common Shares (or to electronically deliver such Common Shares) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery DateFailure, this Section 5(e) shall not apply to the Creditor to the extent the Company has already paid such amounts in full to the Creditor with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note or Warrant, as applicable, held by the Creditor.