Common use of Holder’s Option if Company Cannot Fully Convert Clause in Contracts

Holder’s Option if Company Cannot Fully Convert. If, upon the Company’s receipt of a Notice of Conversion or as otherwise required under this Note, the Company cannot issue Common Stock for any reason, including, without limitation, because the Company (x) does not have a sufficient number of shares of Common Stock authorized and available or (y) is otherwise prohibited by applicable law or by the rules or regulations of any stock exchange, interdealer quotation system or other self-regulatory organization with jurisdiction over the Company or any of its securities from issuing all of the Common Stock which is to be issued to the Holder pursuant to this Note, then the Company shall issue as many shares of Common Stock as it is able to issue and, with respect to the unconverted portion of this Note or with respect to any Common Stock not timely issued in accordance with this Note, the Holder, solely at Holder’s option, can elect to: i. require the Company to prepay that portion of this Note for which the Company is unable to issue Common Stock or for which Common Stock was not timely issued (the “Mandatory Prepayment for Failure to Fully Convert”) at a price equal to the number of shares of Common Stock that the Company is unable to issue multiplied by the VWAP on the date of the Notice of Conversion (the “Mandatory Prepayment Price”); ii. void its Conversion Notice and retain or have returned, as the case may be, this Note that was to be converted pursuant to the Notice of Conversion (provided that the Holder’s voiding its Notice of Conversion shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice); or iii. defer issuance of the applicable Conversion Shares until such time as the Company can legally issue such shares; provided, that the principal amount underlying such Conversion Shares shall remain outstanding until the delivery of such Conversion Shares; provided, further, that if the Holder elects to defer the issuance of the Conversion Shares, it may exercise its rights under either clause (i) or (ii) above at any time prior to the issuance of the Conversion Shares upon two (2) Business Days’ notice to the Company.

Holder’s Option if Company Cannot Fully Convert. If, upon the Company’s receipt of a Notice of Conversion or as otherwise required under this NoteNotice, the Company cannot issue shares of Common Stock registered for resale under the registration statement providing for the resale of the shares of Common Stock issuable upon conversion of the Series C Preferred Stock (the “Registration Statement”) for any reason, including, without limitation, because the Company (xw) does not have a sufficient number of shares of Common Stock authorized and available or available, (yx) is otherwise prohibited by applicable law or by the rules or regulations of any stock exchange, interdealer quotation system or other self-regulatory organization with jurisdiction over the Company or any of its securities from issuing all of the Common Stock which is to be issued to the Holder a holder of Series C Preferred Stock pursuant to this Notea Conversion Notice or (y) fails to have a sufficient number of shares of Common Stock registered for resale under the Registration Statement, then the Company shall issue as many shares of Common Stock as it is able to issue in accordance with such holder’s Conversion Notice and pursuant to Section 5(b)(ii) above and, with respect to the unconverted portion of this Note or with respect to any Common Stock not timely issued in accordance with this NoteSeries C Preferred Stock, the Holderholder, solely at Holdersuch holder’s option, can elect elect, within five (5) business days after receipt of notice from the Company thereof to: i. (i) require the Company to prepay that portion of this Note redeem from such holder those Series C Preferred Stock for which the Company is unable to issue Common Stock or for which Common Stock was not timely issued in accordance with such holder’s Conversion Notice (the “Mandatory Prepayment for Conversion Failure to Fully ConvertRedemption”) at a price per share equal to Applicable Redemption Price per Share or, at such holder’s option, in shares of Common Stock, based upon the number Conversion Price then in effect on the day preceding the date of delivery of such holder’s election to the Company; (ii) require the Company to issue restricted shares of Common Stock that the Company is unable in accordance with such holder’s Conversion Notice and pursuant to issue multiplied by the VWAP on the date of the Notice of Conversion Section 5(b)(ii) above; and/or (the “Mandatory Prepayment Price”); ii. iii) void its Conversion Notice and retain or have returned, as the case may be, this Note the shares of Series C Preferred Stock that was were to be converted pursuant to the such holder’s Conversion Notice of Conversion (provided that the Holdera holder’s voiding its Conversion Notice of Conversion shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice); or iii. defer issuance In the event a holder shall elect to convert any shares of Series C Preferred Stock as provided herein, the Company cannot refuse conversion based on any claim that such holder or any one associated or affiliated with such holder has been engaged in any violation of law, violation of an agreement to which such holder is a party or for any reason whatsoever, unless, an injunction from a court, on notice, restraining and or enjoining conversion of all or part of said shares of Series C Preferred Stock shall have been issued and the Company posts a surety bond for the benefit of such holder in an amount equal to 130% of the applicable Conversion Shares until such time as amount of shares of Series C Preferred Stock the Company can legally issue such shares; providedholder has elected to convert, that the principal amount underlying such Conversion Shares which bond shall remain outstanding in effect until the delivery completion of such Conversion Shares; provided, further, that if the Holder elects to defer the issuance arbitration/litigation of the Conversion Shares, dispute and the proceeds of which shall be payable to such holder in the event it may exercise its rights under either clause (i) or (ii) above at any time prior to the issuance of the Conversion Shares upon two (2) Business Days’ notice to the Companyobtains judgment.

Holder’s Option if Company Cannot Fully Convert. If, upon the Company’s receipt of a Notice of Conversion or as otherwise required under this NoteNotice, the Company cannot issue shares of Common Stock for any reason, including, without limitation, because the Company (xw) does not have a sufficient number of shares of Common Stock authorized and available available, or (yx) is otherwise prohibited by applicable law or by the rules or regulations of any stock exchange, interdealer quotation system or other self-regulatory organization with jurisdiction over the Company or any of its securities from issuing all of the Common Stock which is to be issued to the Holder pursuant to this Notea Conversion Notice, then the Company shall issue as many shares of Common Stock as it is able to issue in accordance with the Holder’s Conversion Notice and, with respect to the unconverted portion of this each Note or with respect to any Common Stock not timely issued in accordance with this Note(as applicable), the Holder, solely at Holder’s its option, can elect to: i. (i) require the Company to prepay that portion of this each applicable Note for which the Company is unable to issue Common Stock or for which Common Stock was not timely issued in accordance with the Holder’s Conversion Notice (the “"Mandatory Prepayment") in an amount equal to Optional Prepayment Amount as of such Conversion Date (the "Mandatory Prepayment for Failure to Fully Convert”) at a price Price"), plus an amount equal to the number of shares of Common Stock that Holder’s out-of-pocket expenses incurred in connection with the Company is unable to issue multiplied transactions (which are contemplated by the VWAP on the date of the Notice of Conversion (the “Mandatory Prepayment Price”)Transaction Documents) and enforcing its rights hereunder; (ii. ) void its the Conversion Notice and retain or have returned, as the case may be, this each applicable Note that was to be converted pursuant to the Conversion Notice of Conversion (provided that the Holder’s voiding its Conversion Notice of Conversion shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice); or iii. defer issuance of the applicable Conversion Shares until such time as the Company can legally issue such shares; provided, that the principal amount underlying such Conversion Shares shall remain outstanding until the delivery of such Conversion Shares; provided, further, that if the Holder elects to defer the issuance of the Conversion Shares, it may exercise its rights under either clause (i) or (ii) above at any time prior to the issuance of the Conversion Shares upon two (2) Business Days’ notice to the Company.

Holder’s Option if Company Cannot Fully Convert. If, upon the Company’s 's receipt of a Notice of Voluntary Conversion or as otherwise required under this NoteNotice, the Company cannot issue shares of Common Stock for any reason, including, without limitation, issuable pursuant to such Voluntary Conversion Notice because the Company (x) does not have a sufficient number of shares of Common Stock authorized and available or (y) is otherwise prohibited by applicable law or by the rules or regulations of any stock exchange, interdealer quotation system or other self-regulatory organization with jurisdiction over the Company or any of its securities from issuing all of the Common Stock which is to be issued to the Holder a holder of Series A Preferred pursuant to this Notea Voluntary Conversion Notice, then the Company shall issue as many shares of Common Stock Conversion Shares as it is able to issue in accordance with such holder's Voluntary Conversion Notice and pursuant to Section 4(c)(i) above and, with respect to the unconverted portion of this Note or with respect to any Common Stock not timely issued in accordance with this NoteSeries A Preferred, the Holderholder, solely at Holder’s such holder's option, can elect elect, within five (5) business days after receipt of notice from the Company thereof to: i. (i) if the Company's inability to fully convert Series A Preferred is pursuant to Section 6(a)(y) above, require the Company to prepay that portion of this Note for which the Company is unable to issue Common Stock or for which Common Stock was not timely issued (the “Mandatory Prepayment for Failure to Fully Convert”) at a price equal to the number of restricted shares of Common Stock that the Company is unable in accordance with such holder's Voluntary Conversion Notice and pursuant to issue multiplied by the VWAP on the date of the Notice of Conversion Section 4(c)(i) above; or (the “Mandatory Prepayment Price”); ii. ) void its Voluntary Conversion Notice and retain or have returned, as the case may be, this Note the shares of Series A Preferred that was were to be converted pursuant to the such holder's Voluntary Conversion Notice of Conversion (provided that the Holder’s a holder's voiding its Voluntary Conversion Notice of Conversion shall not affect effect the Company’s 's obligations to make any payments which have accrued prior to the date of such notice); or iii. defer issuance of the applicable Conversion Shares until such time as the Company can legally issue such shares; provided, that the principal amount underlying such Conversion Shares shall remain outstanding until the delivery of such Conversion Shares; provided, further, that if the Holder elects to defer the issuance of the Conversion Shares, it may exercise its rights under either clause (i) or (ii) above at any time prior to the issuance of the Conversion Shares upon two (2) Business Days’ notice to the Company.

Holder’s Option if Company Cannot Fully Convert. If, upon the Company’s receipt of a Notice of Conversion or as otherwise required under this Advance Note, including with respect to repayment of Principal, the Company cannot issue all or any portion of the Common Stock due on such conversion for any reason, including, without limitation, because the Company (x) does not have a sufficient number of shares of Common Stock authorized and available or (y) is otherwise prohibited by applicable law or by the rules or regulations of any stock national securities exchange, interdealer quotation system or other self-regulatory organization with jurisdiction over the Company or any of its securities from issuing all of the shares of Common Stock which is are to be issued to the Holder pursuant to this Advance Note, then the Company shall issue as many shares of Common Stock as it is able to issue and, with respect to the unconverted portion of this Advance Note or with respect to any Common Stock not timely issued in accordance with this Advance Note, the Holder, solely at Holder’s option, can elect to: i. (i) require the Company to prepay that portion of this Advance Note for which the Company is unable to issue Common Stock or for which Common Stock was not timely issued (the “Mandatory Prepayment for Failure to Fully ConvertPrepayment”) at a price equal to the number of shares of Common Stock that the Company is unable to issue multiplied by the VWAP on the date of the Notice of Conversion (provided all payments shall be subject to the “Mandatory Prepayment Price”provisions of the Purchase Agreement with respect to the holders of the Other Advance Notes and any Pre-Paid Tranches); provided that, notwithstanding anything in this Advance Note or the Purchase Agreement to the contrary, the payment of such amount shall cure any breach or Event of Default arising from such failure to deliver shares of Common Stock on such conversion; (ii. ) void its Notice of Conversion Notice and retain or have returned, as the case may be, this Advance Note or the portion of this Advance Note that was to be converted pursuant to the Notice of Conversion (provided that the Holder’s voiding its Notice of Conversion shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice); or (iii. ) defer issuance of the applicable Conversion Shares until such time as the Company can legally issue such shares; provided, provided that the principal amount Principal and any accrued and unpaid Interest thereon underlying such Conversion Shares shall remain outstanding until the delivery of such Conversion Shares; and provided, further, that if the Holder elects to defer the issuance of the Conversion Shares, it may exercise its rights under either clause (i) or (ii) above at any time prior to the issuance of the Conversion Shares upon two (2) Business Trading Days’ notice to the Company.

Holder’s Option if Company Cannot Fully Convert. If, upon the Company’s receipt of a Notice of Conversion or as otherwise required under this NoteNotice, the Company cannot issue shares of Common Stock registered for resale under the registration statement providing for the resale of the shares of Common Stock issuable upon conversion of the Series C Preferred Stock (the “Registration Statement”) for any reason, including, without limitation, because the Company (xw) does not have a sufficient number of shares of Common Stock authorized and available or available, (yx) is otherwise prohibited by applicable law or by the rules or regulations of any stock exchange, interdealer quotation system or other self-regulatory organization with jurisdiction over the Company or any of its securities from issuing all of the Common Stock which is to be issued to the Holder a holder of Series C Preferred Stock pursuant to this Notea Conversion Notice or (y) fails to have a sufficient number of shares of Common Stock registered for resale under the Registration Statement, then the Company shall issue as many shares of Common Stock as it is able to issue in accordance with such holder’s Conversion Notice and pursuant to Section 5(b)(ii) above and, with respect to the unconverted portion of this Note or with respect to any Common Stock not timely issued in accordance with this NoteSeries C Preferred Stock, the Holderholder, solely at Holdersuch holder’s option, can elect elect, within five (5) business days after receipt of notice from the Company thereof to: i. (i) require the Company to prepay that portion of this Note redeem from such holder those Series C Preferred Stock for which the Company is unable to issue Common Stock or for which Common Stock was not timely issued in accordance with such holder’s Conversion Notice (the “Mandatory Prepayment for Conversion Failure to Fully ConvertRedemption”) at a price per share equal to Applicable Redemption Price per Share or, at such holder’s option, in shares of Common Stock, based upon the number Conversion Price then in effect on the day preceding the date of delivery of such holder’s election to the Company; (ii) require the Company to issue restricted shares of Common Stock that the Company is unable in accordance with such holder’s Conversion Notice and pursuant to issue multiplied by the VWAP on the date of the Notice of Conversion Section 5(b)(ii) above; and/or (the “Mandatory Prepayment Price”); ii. iii) void its Conversion Notice and retain or have returned, as the case may be, this Note the shares of Series C Preferred Stock that was were to be converted pursuant to the such holder’s Conversion Notice of Conversion (provided that the Holdera holder’s voiding its Conversion Notice of Conversion shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice); or iii. defer issuance In the event a Holder shall elect to convert any shares of Series C Preferred Stock as provided herein, the Company cannot refuse conversion based on any claim that such Holder or any one associated or affiliated with such Holder has been engaged in any violation of law, violation of an agreement to which such Holder is a party or for any reason whatsoever, unless, an injunction from a court, on notice, restraining and or adjoining conversion of all or of said shares of Series C Preferred Stock shall have been issued and the Company posts a surety bond for the benefit of such Holder in an amount equal to 130% of the applicable Conversion Shares until such time as amount of shares of Series C Preferred Stock the Company can legally issue such shares; providedHolder has elected to convert, that the principal amount underlying such Conversion Shares which bond shall remain outstanding in effect until the delivery completion of such Conversion Shares; provided, further, that if the Holder elects to defer the issuance arbitration/litigation of the Conversion Shares, dispute and the proceeds of which shall be payable to such Holder in the event it may exercise its rights under either clause (i) or (ii) above at any time prior to the issuance of the Conversion Shares upon two (2) Business Days’ notice to the Companyobtains judgment.

Holder’s Option if Company Cannot Fully Convert. If, upon the CompanyCorporation’s receipt of a Notice of Conversion or as otherwise required under this NoteNotice, the Company Corporation cannot issue shares of Common Stock for any reason, including, without limitation, because the Company Corporation (x) does not have a sufficient number of shares of Common Stock authorized and available available, or (y) is otherwise prohibited by applicable law or by the rules or regulations of any stock exchange, interdealer quotation system or other self-regulatory organization with jurisdiction over the Company Corporation or any of its securities securities, from issuing all of the Common Stock which is to be issued to the Holder a holder of Series B Preferred Stock pursuant to this Notea Conversion Notice, then the Company Corporation shall issue as many shares of Common Stock as it is able to issue and, in accordance with such holder’s Conversion Notice and with respect to the unconverted portion of this Note or with respect to any Common Series B Preferred Stock not timely issued in accordance with this Note, (the Holder“Unconverted Preferred Stock”) the holder, solely at Holdersuch holder’s option, can elect to: i. require elect, at any time after receipt of notice from the Company Corporation that there is Unconverted Preferred Stock, to prepay that portion of this Note for which either: (i) void the Company is unable to issue Common Stock or for which Common Stock was not timely issued (the “Mandatory Prepayment for Failure to Fully Convert”) at a price equal holder’s Conversion Notice as to the number of shares of Common Stock that the Company Corporation is unable to issue multiplied by the VWAP on the date of the Notice of Conversion (the “Mandatory Prepayment Price”); ii. void its Conversion Notice and retain or have returned, as the case may be, this Note that was to be converted pursuant to the Notice of Conversion (provided that certificates for the Holder’s voiding its Notice of Conversion shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice); or iii. defer issuance shares of the applicable Conversion Shares until such time as the Company can legally issue such shares; providedUnconverted Preferred Stock, that the principal amount underlying such Conversion Shares shall remain outstanding until the delivery of such Conversion Shares; provided, further, that if the Holder elects to defer the issuance of the Conversion Shares, it may exercise its rights under either clause (i) or (ii) above at any time prior commencing after the earlier of 180 days from the original issue date of the Series B Preferred Stock or one day after the Approval Date, have the Corporation pay to the issuance holder the as-converted value of the Unconverted Preferred Stock based on the volume-weighted-average price of the Common Stock (as reported by Bloomberg) on the date on which the Conversion Shares upon two (2) Business Days’ notice Notice was delivered to the CompanyCorporation, whereupon such shares of Series B Preferred Stock shall be cancelled. In the event a Holder shall elect to convert any shares of Series B Preferred Stock as provided herein, the Corporation cannot refuse conversion based on any claim that such Holder or any person associated or affiliated with such Holder has been engaged in any violation of law, violation of an agreement to which such Holder is a party or for any reason whatsoever, unless, an injunction from a court, on notice, restraining and or enjoining conversion of all or any of such shares of Series B Preferred Stock shall have issued.

Holder’s Option if Company Cannot Fully Convert. If, upon the Company’s 's receipt of a Notice of Conversion or as otherwise required under this NoteNotice, the Company cannot issue shares of Common Stock for any reason, including, without limitation, because the Company (x) does not have a sufficient number of shares of Common Stock authorized and available or (y) is otherwise prohibited by applicable law or by the rules or regulations of any stock exchange, interdealer quotation system or other self-regulatory organization with jurisdiction over the Company or any of its securities securities, from issuing all of the Common Stock which is to be issued to the Holder a holder of Series A Preferred Stock pursuant to this Notea Conversion Notice, then the Company shall issue as many shares of Common Stock as it is able to issue and, in accordance with such holder's Conversion Notice and with respect to the unconverted portion of this Note or with respect to any Common Series A Preferred Stock not timely issued in accordance with this Note, (the Holder"Unconverted Preferred Stock") the holder, solely at Holder’s such holder's option, can elect to: i. require elect, at any time after receipt of notice from the Company that there is Unconverted Preferred Stock, to prepay that portion of this Note for which void the Company is unable to issue Common Stock or for which Common Stock was not timely issued (the “Mandatory Prepayment for Failure to Fully Convert”) at a price equal holder's Conversion Notice as to the number of shares of Common Stock that the Company is unable to issue multiplied by the VWAP on the date of the Notice of Conversion (the “Mandatory Prepayment Price”); ii. void its Conversion Notice and retain or have returned, as the case may be, this Note the certificates for the shares of the Unconverted Preferred Stock. In the event a Holder shall elect to convert any shares of Series A Preferred Stock as provided herein, the Company cannot refuse conversion based on any claim that was such Holder or any one associated or affiliated with such Holder has been engaged in any violation of law, violation of an agreement to be converted pursuant to the Notice which such Holder is a party or for any reason whatsoever, unless, an injunction from a court, on notice, restraining and or enjoining conversion of Conversion (provided that the Holder’s voiding its Notice of Conversion shall not affect the Company’s obligations to make all or any payments which have accrued prior to the date of such notice); or iii. defer issuance shares of the applicable Conversion Shares until such time as the Company can legally issue such shares; provided, that the principal amount underlying such Conversion Shares Series A Preferred Stock shall remain outstanding until the delivery of such Conversion Shares; provided, further, that if the Holder elects to defer the issuance of the Conversion Shares, it may exercise its rights under either clause (i) or (ii) above at any time prior to the issuance of the Conversion Shares upon two (2) Business Days’ notice to the Companyhave issued.

Holder’s Option if Company Cannot Fully Convert. If, upon the Company’s receipt of a Notice of Conversion or as otherwise required under this NoteNotice, the Company cannot issue shares of Common Stock registered for resale or such shares cannot be sold pursuant to Rule 144 for any reason, including, without limitation, because the Company (x) does not have a sufficient number of shares of Common Stock authorized and available or available, (y) is otherwise prohibited by applicable law or by the rules or regulations of any stock exchange, interdealer quotation system or other self-regulatory organization with jurisdiction over the Company or any of its securities from issuing all of the Common Stock which is to be issued to the Holder a holder of Series CC Preferred Stock pursuant to this Notea Conversion Notice or (z) fails to have a sufficient number of shares of Common Stock registered for resale in such holder’s name, then the Company shall issue as many shares of Common Stock as it is able to issue in accordance with such holder’s Conversion Notice and pursuant to Section 5(b)(ii) above and, with respect to the unconverted portion of this Note or with respect to any Common Stock not timely issued in accordance with this NoteSeries CC Preferred Stock, the Holderholder, solely at Holdersuch holder’s option, can elect elect, in addition to other remedies available to such holder, within five (5) business days after receipt of notice from the Company thereof to: i. (i) require the Company to prepay that portion redeem from such holder those shares of this Note Series CC Preferred Stock for which the Company is unable to issue Common Stock or for which Common Stock was not timely issued in accordance with such holder’s Conversion Notice (the “Mandatory Prepayment for Failure to Fully ConvertRedemption”) at a price per share equal to the number of shares of Common Stock that the Company is unable to issue multiplied by the VWAP on the date 120% of the Notice Liquidation Preference Amount as of such Conversion Date (the “Mandatory Prepayment Redemption Price”); (ii. ) if the Company’s inability to fully convert Series CC Preferred Stock pursuant to Section 9(a)(z) above, require the Company to issue restricted shares of Common Stock in accordance with such holder’s Conversion Notice and pursuant to Section 5(b)(ii) above; (iii) void its Conversion Notice and retain or have returned, as the case may be, this Note the shares of Series CC Preferred Stock that was were to be converted pursuant to the such holder’s Conversion Notice of Conversion (provided that the Holdera holder’s voiding its Conversion Notice of Conversion shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice); or iii. defer issuance In the event a Holder shall elect to convert any shares of Series CC Preferred Stock as provided herein, the Company cannot refuse conversion based on any claim that such Holder or any one associated or affiliated with such Holder has been engaged in any violation of law, violation of an agreement to which such Holder is a party or for any reason whatsoever, unless, an injunction from a court, on notice, restraining and or enjoining conversion of all or of said shares of Series CC Preferred Stock shall have issued and the Company posts a surety bond for the benefit of such Holder in an amount equal to 130% of the applicable Conversion Shares until such time as amount of shares of Series CC Preferred Stock the Company can legally issue such shares; providedHolder has elected to convert, that the principal amount underlying such Conversion Shares which bond shall remain outstanding in effect until the delivery completion of such Conversion Shares; provided, further, that if the Holder elects to defer the issuance arbitration/litigation of the Conversion Shares, dispute and the proceeds of which shall be payable to such Holder in the event it may exercise its rights under either clause (i) or (ii) above at any time prior to the issuance of the Conversion Shares upon two (2) Business Days’ notice to the Companyobtains judgment.