Common use of Payment in Cash or Common Stock Clause in Contracts

Payment in Cash or Common Stock. If the Monthly Amount (or a portion of such Monthly Amount if not all of the Monthly Amount may be converted into shares of Common Stock pursuant to Section 3.2) is required to be paid in cash pursuant to Section 2.1(b), then the Company shall pay the Holder an amount in cash equal to 103% of the Monthly Amount (or such portion of such Monthly Amount to be paid in cash) due and owing to the Holder on the Amortization Date. If such repayment in cash is required, in whole or part, the underlying data as reported by Bloomberg, L.P. used to support such calculations, will be provided to the Company upon request. If the Monthly Amount (or a portion of such Monthly Amount if not all of the Monthly Amount may be converted into shares of Common Stock pursuant to Section 3.2) is required to be paid in shares of Common Stock pursuant to Section 2.1(b), the number of such shares to be issued by the Company to the Holder on such Amortization Date (in respect of such portion of the Monthly Amount converted into shares of Common Stock pursuant to Section 2.1(b)), shall be the number determined by dividing (i) the portion of the Monthly Amount converted into shares of Common Stock, by (ii) the then applicable Fixed Conversion Price. For purposes hereof, subject to Section 3.6 hereof, the initial “Fixed Conversion Price” means $ 1.05 [which has been determined on the date of this Note as an amount equal to 103% of the average closing price of the Common Stock for the ten (10) trading days immediately prior to the Closing Date; provided that the Fixed Conversion Price shall not exceed 110% of the closing price on the date immediately prior to the Closing Date].

Payment in Cash or Common Stock. If the Monthly Amount (or a portion of such Monthly Amount if not all of the Monthly Amount may be converted into shares of Common Stock pursuant to Section 3.2) is required to be paid in cash pursuant to Section 2.1(b), then the Company shall pay the Holder an amount in cash equal to 103% of the Monthly Amount (or such portion of such Monthly Amount to be paid in cash) due and owing to the Holder on the Amortization Date. If such repayment in cash is required, in whole or part, the underlying data as reported by Bloomberg, L.P. used to support such calculations, will be provided to the Company upon request. If the Monthly Amount (or a portion of such Monthly Amount if not all of the Monthly Amount may be converted into shares of Common Stock pursuant to Section 3.2) is required to be paid in shares of Common Stock pursuant to Section 2.1(b), the number of such shares to be issued by the Company to the Holder on such Amortization Date (in respect of such portion of the Monthly Amount converted into shares of Common Stock pursuant to Section 2.1(b)), shall be the number determined by dividing (i) the portion of the Monthly Amount converted into shares of Common Stock, by (ii) the then applicable Fixed Conversion Price. For purposes hereof, subject to Section 3.6 hereof, the initial “Fixed Conversion Price” means $ 1.05 [which has been determined $3.30; provided that, on the date of this Note as consummation of the initial public offering of Common Stock, the “Fixed Conversion Price” shall be adjusted to an amount equal to 103% eighty-five percent (85%) of the average closing issuance price of the Common Stock for issued in connection with such initial public offering of Common Stock (the ten (10) trading days immediately prior to the Closing Date; provided that the Fixed Conversion Price shall not exceed 110% of the closing price on the date immediately prior to the Closing Date]“IPO Price”).

Payment in Cash or Common Stock. If the Monthly Amount (or a portion of such Monthly Amount if not all a) Subject to satisfaction of the Monthly Amount Stock Payment Conditions set forth in paragraph (b) of this Section 8.2 and compliance with the other terms and conditions of this Section 8.2, Borrower may be converted elect to pay, in whole or in part, up to $3,000,000 in the aggregate of any regularly scheduled installment of principal (a “Principal Installment Payment”) by converting the Notes into shares of Common Stock pursuant in lieu of payment in cash (such option, the “Stock Payment Option”). In order to validly exercise a Stock Payment Option, Borrower (A) must deliver written notice thereof, in the form attached hereto as Exhibit I, to Lender (a “Borrower Repayment Election Notice”) five (5) days prior to the applicable due date of the Principal Installment Payment (the “Principal Installment Due Date”) and (B) shall either (i) (provided that Borrower’s transfer agent is participating in the Fast Automated Securities Transfer Program of the Depository Trust Company) credit to Lender by no later than the second trading day following the applicable Principal Installment Due Date (such date, the “Delivery Date”) such aggregate number of shares of Common Stock to be issued to Lender with respect to such Borrower Repayment Election Notice, as determined in accordance with this Section 3.28.2, or (ii) is required deliver to Lender stock certificates evidencing the number of shares of Common Stock with respect to such Borrower Repayment Election Notice, as determined in accordance with this Section 8.2, by no later than the second trading day following the applicable Delivery Date. All payments in respect of a Principal Installment Payment shall be made in cash, unless (i) Borrower timely delivers a Borrower Repayment Election Notice in accordance with the immediately preceding sentence; (ii) Borrower timely delivers the requisite stock certificates or credits the shares of Common Stock to Lender in accordance with this Section 8.2; and (iii) the Stock Payment Conditions set forth in Section 8.2(b) are satisfied in respect of such payment. A Borrower Repayment Election Notice, once delivered by Borrower, shall be irrevocable unless otherwise agreed, in writing, by Agent, on behalf of the Lender. If Borrower elects to convert the Notes (if applicable) to repay a Principal Installment Payment, in whole or in part, in shares of Common Stock, the number of such shares of Common Stock to be issued in respect of such Principal Installment Payment shall be equal to the number determined by dividing (x) the principal amount to be paid in cash pursuant to Section 2.1(b), then the Company shall pay the Holder an amount in cash equal to 103% of the Monthly Amount (or such portion of such Monthly Amount to be paid in cash) due and owing to the Holder on the Amortization Date. If such repayment in cash is required, in whole or part, the underlying data as reported by Bloomberg, L.P. used to support such calculations, will be provided to the Company upon request. If the Monthly Amount (or a portion of such Monthly Amount if not all of the Monthly Amount may be converted into shares of Common Stock by (y) the Fixed Conversion Price. For purposes hereof, the “Fixed Conversion Price” shall be the price that is 15% higher than the Exercise Price (as defined in the Warrant); provided, however, that upon the occurrence of any stock split, stock dividend, combination of shares or reverse stock split pertaining to the Common Stock, the Fixed Conversion Price shall be proportionately increased or decreased as necessary to reflect the proportionate change in the shares of Common Stock issued and outstanding as a result of such stock split, stock dividend, combination of shares or reverse stock split. Any shares of Common Stock issued pursuant to a Borrower Repayment Election Notice shall be deemed to be issued upon conversion of the Notes. (b) Notwithstanding Section 3.28.2(a), Borrower’s right to deliver, and Lender’s obligation to accept, shares of Common Stock in lieu of payment in cash of a Principal Installment Payment is conditioned on the satisfaction of each of the following conditions (the “Stock Payment Conditions”) is required as of such Delivery Date: (A) the closing price of the shares of Common Stock as reported by NASDAQ on the NASDAQ market for each of the seven (7) consecutive trading days immediately preceding the Delivery Date shall be greater than or equal to 115% of the Fixed Conversion Price; (B) the Common Stock issued in connection with any such payment does not exceed 15% of the total trading volume of the Common Stock for the twenty-two (22) consecutive trading days immediately prior to and including such Delivery Date; (C) only one Repayment Election Notice may be given in any calendar month; (D) the aggregate principal amount to be paid in shares of Common Stock pursuant to Section 2.1(b8.2 of this Agreement shall not exceed Three Million Dollars ($3,000,000); (E) the Common Stock is (and was on each of the twenty-two (22) consecutive trading days immediately preceding such Delivery Date) quoted or listed on the NASDAQ market; (F) a registration statement is effective and available for the resale of all of the shares of Common Stock to be delivered on such Delivery Date, or such shares of Common Stock are eligible for resale to the public pursuant to Rule 144 without any limitation; (G) after giving effect to the issuance of such shares of Common Stock to Lender, any individual Lender would not (A) beneficially own, together with its affiliates, Common Stock in excess of the limitations specified in subsection 8.2(c) below and (B) have been issued shares of Common Stock pursuant to all Repayment Election Notices in an aggregate amount in excess of the Cap; (H) as of such Delivery Date, there is no outstanding Event of Default and there is no breach or default that, if left uncured, would result in an Event of Default; and (I) Inc. shall have sufficient authorized but unissued shares of Common Stock to provide for the issuance of the shares of Common Stock pursuant to the Borrower Repayment Election Notice. If any of the Stock Payment Conditions are not satisfied as of a Delivery Date, Borrower shall not be permitted to pay, and the Lender shall not be obligated to accept, the Principal Installment Payment in shares of Common Stock, and Borrower shall instead pay such principal amount in cash; provided, however, that the Stock Payment Conditions set forth in clauses (A), (B), (C), (E), (F) and (H) above may be waived by a writing executed by both Borrower and Lender. In the event the Borrower is relying upon an effective registration statement to satisfy clause (F) of the Stock Payment Conditions, each of Inc. and Lender shall provide customary indemnification to one another with respect to such registration statement in a form acceptable to the Borrower and Lender. By no later than the first trading day following the Delivery Date, Borrower shall either (i) (provided that Borrower's transfer agent is participating in the Fast Automated Securities Transfer Program of the Depository Trust Company) credit to Lender the shares of Common Stock to be delivered by Borrower with respect to the portion of the Principal Installment Payment being paid in shares of Common Stock or (ii) deliver to Agent, on behalf of each Lender, certificates, free of restrictive legends, evidencing the shares of Common Stock to be delivered by Borrower with respect to the portion of the Principal Installment Payment being paid in shares of Common Stock, which shares of Common Stock, in the case of clauses (i) and (ii), shall be allocated among each Lender in the manner specified to Borrower by the Agent. (c) Notwithstanding any provision herein to the contrary, no individual Lender, together with its affiliates, shall be permitted to beneficially own a number of shares of Common Stock (other than shares that may be deemed beneficially owned except for being subject to a limitation analogous to the limitation contained in this Section 8.2(c)) in excess of 9.99% of the number of shares of Common Stock then issued and outstanding, it being the intent of Borrower and each Lender that each Lender, together with its respective affiliates, not be deemed at any time to have the power to vote or dispose of greater than 9.99% of the number of shares of Common Stock issued and outstanding at any time; provided, however, that each Lender shall have the right, upon 61 days’ prior written notice to Borrower, to waive the 9.99% limitation of this subsection 8.2(c); provided, further, that upon such Lender’s waiver of such 9.99% limitation, such Lender shall comply with the provisions under Rule 144 (“Rule 144”) of the Securities Act of 1933, as amended (the “1933 Act”). Notwithstanding anything contained herein to the contrary, Borrower shall not be permitted to issue to any Lender, and no Lender shall not be required to accept, shares of Common Stock pursuant to a Borrower Repayment Election Notice if and to the extent such issuance, when taking together with all other issuances pursuant to prior Borrower Repayment Election Notices, would result in (A) the issuance of more than 19.99% of the Common Stock outstanding as of the date of this Agreement or (B) such Lender, together with its affiliates, beneficially owning in excess of 19.99% of the outstanding Common Stock (each of clauses (A) and (B) are referred to herein as the “Cap”). As used herein, beneficial ownership shall be determined in accordance with Section 13(d) of the 1934 Act. Upon the reasonable written request of any Lender, Borrower shall within three (3) Business Days confirm in writing to Lender the number of shares of Common Stock then issued and outstanding as of any given date. For purposes of Borrower’s compliance with this Section 8(c), in determining the percentage of Borrower’s issued and outstanding Common Stock owned beneficially and/or of record by Lender and its affiliates as at any date, Borrower shall be entitled to rely on the most recent written notice of such ownership (if any) provided by Lender to Borrower or the information as to such ownership contained in the reports and schedules then filed with the Securities and Exchange Commission (the “SEC”) by Lender; provided, that the foregoing shall not operate to impair Lender’s ability to refuse or reject any shares of Common Stock issued to Lender by Borrower pursuant to this Section 8.2 if Lender’s acceptance of such shares would violate any of the thresholds set forth in this Section 8.2(c). (d) With a view to be making available to Lender the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit Lender to sell shares of Common Stock issued by the Company pursuant to Section 8.2 of this Agreement to the Holder on such Amortization Date public without registration, Borrower covenants and agrees that, upon Lender’s written request to Borrower, Borrower shall furnish to Lender, within ten (in respect 10) Business Days after receipt of such portion request, a written statement confirming the compliance of Inc. with the filing requirements of the Monthly Amount converted into SEC as set forth in paragraph (c)(1) of Rule 144, as such Rule may be amended from time to time. (e) If Borrower elects to deliver a Borrower Repayment Election Notice, Inc. covenants and agrees to reserve from its duly authorized capital stock, as of that date and any Delivery Date, not less than the number of shares of Common Stock that may be issuable upon payment of any Principal Installment Payment pursuant to Section 8.2 of this Agreement. Borrower further represents, warrants and covenants that, upon issuance of any shares of Common Stock pursuant to Section 2.1(b))8.2 of this Agreement, shall be the number determined by dividing (i) the portion of the Monthly Amount converted into such shares of Common StockStock shall be validly issued, by fully paid and non-assessable and free from all preemptive or similar rights, taxes, liens and charges with respect to the issue thereof. (iif) the then applicable Fixed Conversion Price. For purposes hereof, subject so long as Lender holds any shares of Common Stock issued pursuant to Section 3.6 hereof, the initial “Fixed Conversion Price” means $ 1.05 [which has been determined on the date 8.2 of this Note as an amount equal Agreement, Inc. shall make reasonable efforts to 103% of maintain the average closing price Common Stock’s authorization for listing on NASDAQ and Inc. shall not take any action which would reasonably be expected to result in the delisting or suspension of the Common Stock for the ten (10) trading days immediately prior to the Closing Date; provided that the Fixed Conversion Price shall not exceed 110% of the closing price on the date immediately prior to the Closing Date]NASDAQ.

Payment in Cash or Common Stock. If the Monthly Amount (or a portion of such Monthly Amount if not all of the Monthly Amount may be converted into shares of common stock of Elandia (the “Common Stock Stock”) pursuant to Section 3.2) is required to be paid in cash pursuant to Section 2.1(b), then the Company shall Companies shall, jointly and severally, pay the Holder an amount in cash equal to 103100% of the Monthly Amount (or such portion of such Monthly Amount to be paid in cash) due and owing to the Holder on the Amortization Date. If such repayment in cash is required, in whole or part, the underlying data as reported by Bloomberg, L.P. used to support such calculations, will be provided to the Company upon request. If the Monthly Amount (or a portion of such Monthly Amount if not all of the Monthly Amount may be converted into shares of Common Stock pursuant to Section 3.2) is required to be paid in shares of Common Stock pursuant to Section 2.1(b), the number of such shares to be issued by the Company Elandia to the Holder on such Amortization Date (in respect of such portion of the Monthly Amount converted into shares of Common Stock Elandia pursuant to Section 2.1(b)), shall be the number determined by dividing (i) the portion of the Monthly Amount converted into shares of Common Stock, by (ii) the then applicable Fixed Conversion Price. For purposes hereof, subject to Section 3.6 hereof, the initial “Fixed Conversion Price” means $ 1.05 [which has been determined on $5.00, subject to adjustment in accordance with the date terms of this Note as an amount equal to 103% of the average closing price of the Common Stock for the ten (10) trading days immediately prior to the Closing Date; provided that the Fixed Conversion Price shall not exceed 110% of the closing price on the date immediately prior to the Closing Date]Note.

Payment in Cash or Common Stock. Subject to Section 2.1(b), each month by the fifth (5th) business day prior to each Amortization Date (the “Notice Date”), the Holder shall deliver to the Company a written notice in the form of Exhibit A attached hereto (appropriately completed) (each, a “Repayment Notice”) stating whether, according to the Conversion Criteria (as defined below), the Monthly Amount payable on the next Amortization Date shall be paid in cash or shares of Common Stock, or a combination of both. If a Payment Election Notice is not delivered by the Holder on or before the applicable Notice Date for such Amortization Date, then the Company shall pay the Monthly Amount due on such Amortization Date in cash. If the Monthly Amount (or a portion of such Monthly Amount if not all of the Monthly Amount may be shall have been converted into shares of Common Stock pursuant to Section 3.2) is required to be paid in cash pursuant to Section 2.1(b), then the Company shall pay the Holder an amount in cash equal to 103101% of the Monthly Amount (or such portion of such Monthly Amount to be paid in cash) due and owing to the Holder on the Amortization Date. If such repayment in cash is required, in whole or part, the underlying data as reported by Bloomberg, L.P. used to support such calculations, will be provided to the Company upon request. If the Monthly Amount (or a portion of such Monthly Amount if not all of the Monthly Amount may be converted into shares of Common Stock pursuant to Section 3.2) is required to be paid in shares of Common Stock pursuant to Section 2.1(b), the number of such shares to be issued by the Company to the Holder on such Amortization Date (in respect of such portion of the Monthly Amount converted into shares of Common Stock pursuant to Section 2.1(b)), shall be the number determined by dividing (i) the portion of the Monthly Amount converted into shares of Common Stock, by (ii) the then applicable Fixed Conversion Price. For purposes hereof, subject to Section 3.6 hereof, the initial “Fixed Conversion Price” means $ 1.05 [which has been determined on the date of this Note as an amount equal to 103% of the average closing price of the Common Stock for the ten (10) trading days immediately prior to the Closing Date; provided that the Fixed Conversion Price shall not exceed 110% of the closing price on the date immediately prior to the Closing Date]$3.48.