Common use of Underlying Shares Clause in Contracts

Underlying Shares. If (i) all or any shares of Preferred Stock are converted at a time when there is an effective registration statement to cover the issuance or resale of the Conversion Shares underlying the Preferred Stock or Rule 144 is available for resale of such Conversion Shares underlying the Preferred Stock, the Conversion Shares underlying the Preferred Stock issued pursuant to any such conversion shall be issued free of all legends and (ii) all or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the issuance or resale of the Warrant Shares or if the Warrant is exercised via cashless exercise, the Warrant Shares issued pursuant to any such exercise shall be issued free of all legends. If at any time following its effective date, the Resale Registration Statement (or any subsequent registration statement registering the sale or resale of Conversion Shares underlying the Preferred Stock or the Warrant Shares) is not effective or is not otherwise available for the sale or resale of the Conversion Shares underlying the Preferred Stock or the Warrant Shares, the Company shall immediately notify the holders of the Preferred Stock and the Warrants in writing that such Resale Registration Statement or other registration statement is not then effective and thereafter shall promptly notify such holders when such Resale Registration Statement or other registration statement is effective again and available for the sale or resale of the Conversion Shares underlying the Preferred Stock and the Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability of the Company to issue, or any Purchaser to sell, any of the Conversion Shares underlying the Preferred Stock and the Warrant Shares in compliance with applicable federal and state securities laws). The Company shall use best efforts to keep the Resale Registration Statement registering the issuance or resale of the Warrant Shares effective during the period beginning on its effective date until the expiration of the Warrants. Upon a cashless exercise of a Warrant, the holding period for purposes of Rule 144 shall tack back to the original date of issuance of such Warrant.

Underlying Shares. The shares of Common Stock underlying the Series D-1 Preferred Stock shall be issued free of legends. If (i) all or any shares of Series D-2 Preferred Stock are converted at a time when there is an effective registration statement to cover the issuance or resale of the Conversion Shares underlying the Series D-2 Preferred Stock or Rule 144 is available for resale of such Conversion Shares underlying the Series D-2 Preferred Stock, the Conversion Shares underlying the Series D-2 Preferred Stock issued pursuant to any such conversion shall be issued free of all legends and (ii) all or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the issuance or resale of the Warrant Shares or if the Warrant is exercised via cashless exerciseexercise commencing six months after the Closing Date, the Warrant Shares issued pursuant to any such exercise shall be issued free of all legends. If at any time following its effective date, date the Resale Registration Statement (or any subsequent registration statement registering the sale or resale of Conversion Shares underlying the Series D-2 Preferred Stock or the Warrant Shares) is not effective or is not otherwise available for the sale or resale of the Conversion Shares underlying the Series D-2 Preferred Stock or the Warrant Shares, the Company shall immediately notify the holders of the Series D-2 Preferred Stock and the Warrants in writing that such Resale Registration Statement or other registration statement is not then effective and thereafter shall promptly notify such holders when such Resale Registration Statement or other registration statement is effective again and available for the sale or resale of the Conversion Shares underlying the Series D-2 Preferred Stock and the Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability of the Company to issue, or any Purchaser to sell, any of the Conversion Shares underlying the Series D-2 Preferred Stock and the Warrant Shares in compliance with applicable federal and state securities laws). The Company shall use best efforts to keep the Resale Registration Statement registering the issuance or resale of the Warrant Shares effective during the period beginning on its effective date until the expiration of the Warrants. Upon a cashless exercise of a Warrant, the holding period for purposes of Rule 144 shall tack back to the original date of issuance of such Warrant.

Underlying Shares. The shares of Common Stock underlying the Series A-3 Preferred Stock shall be issued free of legends. If (i) all or any shares of Series A-4 Preferred Stock are converted at a time when there is an effective registration statement to cover the issuance or resale of the Conversion Shares underlying the Series A-4 Preferred Stock or Rule 144 is available for resale of such Conversion Shares underlying the Series A-4 Preferred Stock, the Conversion Shares underlying the Series A-4 Preferred Stock issued pursuant to any such conversion shall be issued free of all legends and (ii) all or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the issuance or resale of the Warrant Shares or if the Warrant is exercised via cashless exercise, the Warrant Shares issued pursuant to any such exercise shall be issued free of all legends. If at any time following its effective date, the Resale Registration Statement (or any subsequent registration statement registering the sale or resale of Conversion Shares underlying the Series A-4 Preferred Stock or the Warrant Shares) is not effective or is not otherwise available for the sale or resale of the Conversion Shares underlying the Series A-4 Preferred Stock or the Warrant Shares, the Company shall immediately notify the holders of the Series A-4 Preferred Stock and the Warrants in writing that such Resale Registration Statement or other registration statement is not then effective and thereafter shall promptly notify such holders when such Resale Registration Statement or other registration statement is effective again and available for the sale or resale of the Conversion Shares underlying the Series A-4 Preferred Stock and the Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability of the Company to issue, or any Purchaser to sell, any of the Conversion Shares underlying the Series A-4 Preferred Stock and the Warrant Shares in compliance with applicable federal and state securities laws). The Company shall use best efforts to keep the Resale Registration Statement registering the issuance or resale of the Warrant Shares effective during the period beginning on its effective date until the expiration of the Warrants. Upon a cashless exercise of a Warrant, the holding period for purposes of Rule 144 shall tack back to the original date of issuance of such Warrant.

Underlying Shares. The shares of Common Stock underlying the Series A-1 Preferred Stock shall be issued free of legends. If (i) all or any shares of Series A-2 Preferred Stock are converted at a time when there is an effective registration statement to cover the issuance or resale of the Conversion Shares underlying the Series A-2 Preferred Stock or Rule 144 is available for resale of such Conversion Shares underlying the Series A-2 Preferred Stock, the Conversion Shares underlying the Series A-2 Preferred Stock issued pursuant to any such conversion shall be issued free of all legends and (ii) all or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the issuance or resale of the Warrant Shares or if the Warrant is exercised via cashless exercise, the Warrant Shares issued pursuant to any such exercise shall be issued free of all legends. If at any time following its effective date, the Resale Registration Statement (or any subsequent registration statement registering the sale or resale of Conversion Shares underlying the Series A-2 Preferred Stock or the Warrant Shares) is not effective or is not otherwise available for the sale or resale of the Conversion Shares underlying the Series A-2 Preferred Stock or the Warrant Shares, the Company shall immediately notify the holders of the Series A-2 Preferred Stock and the Warrants in writing that such Resale Registration Statement or other registration statement is not then effective and thereafter shall promptly notify such holders when such Resale Registration Statement or other registration statement is effective again and available for the sale or resale of the Conversion Shares underlying the Series A-2 Preferred Stock and the Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability of the Company to issue, or any Purchaser to sell, any of the Conversion Shares underlying the Series A-2 Preferred Stock and the Warrant Shares in compliance with applicable federal and state securities laws). The Company shall use best efforts to keep the Resale Registration Statement registering the issuance or resale of the Warrant Shares effective during the period beginning on its effective date until the expiration of the Warrants. Upon a cashless exercise of a Warrant, the holding period for purposes of Rule 144 shall tack back to the original date of issuance of such Warrant.

Underlying Shares. The shares of Common Stock underlying the Series C Preferred Stock shall be issued free of legends. If (i) all or any shares of Series D Preferred Stock are converted at a time when there is an effective registration statement to cover the issuance or resale of the Conversion Shares underlying the Series D Preferred Stock or Rule 144 is available for resale of such Conversion Shares underlying the Series D Preferred Stock, the Conversion Shares underlying the Series D Preferred Stock issued pursuant to any such conversion shall be issued free of all legends and (ii) all or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the issuance or resale of the Warrant Shares or if the Warrant is exercised via cashless exerciseexercise commencing six months after the applicable Closing, the Warrant Shares issued pursuant to any such exercise shall be issued free of all legends. If at any time following its effective date, date the Resale Registration Statement (or any subsequent registration statement registering the sale or resale of Conversion Shares underlying the Series D Preferred Stock or the Warrant Shares) is not effective or is not otherwise available for the sale or resale of the Conversion Shares underlying the Series D Preferred Stock or the Warrant Shares, the Company shall immediately notify the holders of the Series D Preferred Stock and the Warrants in writing that such Resale Registration Statement or other registration statement is not then effective and thereafter shall promptly notify such holders when such Resale Registration Statement or other registration statement is effective again and available for the sale or resale of the Conversion Shares underlying the Series D Preferred Stock and the Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability of the Company to issue, or any Purchaser to sell, any of the Conversion Shares underlying the Series D Preferred Stock and the Warrant Shares in compliance with applicable federal and state securities laws). The Company shall use best efforts to keep the Resale Registration Statement registering the issuance or resale of the Warrant Shares effective during the period beginning on its effective date until the expiration of the Warrants. Upon a cashless exercise of a Warrant, the holding period for purposes of Rule 144 shall tack back to the original date of issuance of such Warrant.

Underlying Shares. If (i) all or any Issuable Upon Conversion and Pursuant to the Conversion of Principal Amount The number of shares of Preferred Common Stock are converted at issuable upon a time when there is an effective registration statement to cover the issuance or resale of the Conversion Shares underlying the Preferred Stock or Rule 144 is available for resale of such Conversion Shares underlying the Preferred Stock, the Conversion Shares underlying the Preferred Stock issued pursuant to any such conversion shall be issued determined by the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted by (y) the Set Price. i) Not later than five Trading Days after any Conversion Date, the Company will deliver to the Holder a certificate or certificates representing the Underlying Shares which shall be free of all restrictive legends and trading restrictions representing the number of shares of Common Stock being acquired upon the conversion of Debentures (iiincluding, if so timely elected by the Company, shares of Common Stock representing the payment of accrued interest) all or any portion and (B) a bank check in the amount of a Warrant is exercised at a time when there is an effective registration statement to cover the issuance or resale of the Warrant Shares or accrued and unpaid interest (if the Warrant Company is exercised via cashless exerciserequired to pay accrued interest in cash). The Company shall, if available and if allowed under applicable securities laws, use its best efforts to deliver any certificate or certificates required to be delivered by the Company under this Section electronically through the Depository Trust Corporation or another established clearing corporation performing similar functions. If in the case of any Notice of Conversion such certificate or certificates are not delivered to or as directed by the applicable Holder by the fifth Trading Day after a Conversion Date, the Warrant Shares issued pursuant to any such exercise Holder shall be issued free of all legends. If entitled by written notice to the Company at any time following on or before its effective datereceipt of such certificate or certificates thereafter, to rescind such conversion, in which event the Resale Registration Statement (Company shall immediately return the certificates representing the principal amount of Debentures tendered for conversion. ii) If the Company fails for any reason to deliver to the Holder such certificate or any subsequent registration statement registering certificates pursuant to Section 4(b)(i) by the sale or resale of Conversion Shares underlying the Preferred Stock or the Warrant Shares) is not effective or is not otherwise available for the sale or resale of fifth Trading Day after the Conversion Shares underlying the Preferred Stock or the Warrant SharesDate, the Company shall immediately notify pay to such Holder, in Common Stock at the holders then Set Price, as liquidated damages and not as a penalty, for each $1,000 of principal amount being converted, $50 per Trading Day (increasing to $100 per Trading Day after 3 Trading Days after such damages begin to accrue) for each Trading Day after such third Trading Day until such certificates are delivered. In the event a Holder of this Debenture shall elect to convert any or all of the Preferred Stock outstanding principal amount hereof, the Company may not refuse conversion based on any claim that the Holder or any one associated or affiliated with the Holder of has been engaged in any violation of law, agreement or for any other reason, unless, an injunction from a court, on notice, restraining and or enjoining conversion of all or part of this Debenture shall have been sought and obtained and the Warrants in writing that such Resale Registration Statement or other registration statement is not then effective and thereafter shall promptly notify such holders when such Resale Registration Statement or other registration statement is effective again and available Company posts a surety bond for the sale or resale benefit of the Holder in the amount of 150% of the principal amount of this Debenture outstanding, which is subject to the injunction, which bond shall remain in effect until the completion of arbitration/ litigation of the dispute and the proceeds of which shall be payable to such Holder to the extent it obtains judgment. In the absence of an injunction precluding the same, the Company shall issue Conversion Shares underlying or, if applicable, cash, upon a properly noticed conversion. Nothing herein shall limit Holder's right to pursue actual damages or declare an Event of Default pursuant to Section 3 herein for the Preferred Stock Company's failure to deliver Conversion Shares within the period specified herein and such Holder shall have the Warrant Shares (right to pursue all remedies available to it being understood and agreed that the foregoing at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief. The exercise of any such rights shall not limit prohibit the ability of the Company Holder from seeking to issue, enforce damages pursuant to any other Section hereof or any Purchaser to sell, any of the Conversion Shares underlying the Preferred Stock and the Warrant Shares in compliance with under applicable federal and state securities laws). The Company shall use best efforts to keep the Resale Registration Statement registering the issuance or resale of the Warrant Shares effective during the period beginning on its effective date until the expiration of the Warrants. Upon a cashless exercise of a Warrant, the holding period for purposes of Rule 144 shall tack back to the original date of issuance of such Warrantlaw.

Underlying Shares. If (i) all or any The shares of Preferred Stock are converted at a time when there is an effective registration statement to cover and the issuance or resale shares of the Conversion Shares Common Stock underlying the shares of Preferred Stock or Rule 144 is available for resale of such Conversion Shares underlying the Preferred Stock, the Conversion Shares underlying the Preferred Stock issued pursuant to any such conversion shall be issued free of all legends and (ii) legends. If all or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the issuance or resale of the Warrant Shares or if the Warrant is exercised via cashless exercise, the Warrant Shares issued pursuant to any such exercise shall be issued free of all legends. If at any time following its effective date, the Resale date hereof the Registration Statement (or any subsequent registration statement registering the sale or resale of Conversion Shares underlying the Preferred Stock or the Warrant Shares) is not effective or is not otherwise available (including any prospectus contained therein) for the sale or resale of the Conversion Shares underlying the Preferred Stock or the Warrant Shares, the Company shall immediately notify the holders of the Preferred Stock and the Warrants in writing that such Resale Registration Statement or other registration statement is not then effective or is not otherwise available (including any prospectus contained therein) for the sale or resale of the Warrant Shares and thereafter shall promptly notify such holders when such Resale Registration Statement or other the registration statement is effective again and available (including all prospectuses contained therein) for the sale or resale of the Conversion Shares underlying the Preferred Stock and the Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability of the Company to issue, or any Purchaser to sell, any of the Conversion Shares underlying the Preferred Stock and the Warrant Shares in compliance with applicable federal and state securities laws). The Company shall use best efforts to keep a registration statement (including the Resale Registration Statement Statement) registering the issuance or resale of the Warrant Shares effective (and each prospectus contained therein available for use) during the period beginning on its effective date until the expiration term of the Warrants. Upon a cashless exercise of a Warrant, the holding period for purposes of Rule 144 shall tack back to the original date of issuance of such Warrant.

Underlying Shares. The shares of Common Stock underlying the Series B-1 Preferred Stock shall be issued free of legends. If (i) all or any shares of Series B-2 Preferred Stock are converted at a time when there is an effective registration statement to cover the issuance or resale of the Conversion Shares underlying the Series B-2 Preferred Stock or Rule 144 is available for resale of such Conversion Shares underlying the Series B-2 Preferred Stock, the Conversion Shares underlying the Series B-2 Preferred Stock issued pursuant to any such conversion shall be issued free of all legends and (ii) all or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the issuance or resale of the Warrant Shares or if the Warrant is exercised via cashless exercise, the Warrant Shares issued pursuant to any such exercise shall be issued free of all legends. If at any time following its effective date, date the Resale Registration Statement (or any subsequent registration statement registering the sale or resale of Conversion Shares underlying the Series B-2 Preferred Stock or the Warrant Shares) is not effective or is not otherwise available for the sale or resale of the Conversion Shares underlying the Series B-2 Preferred Stock or the Warrant Shares, the Company shall immediately notify the holders of the Series B-2 Preferred Stock and the Warrants in writing that such Resale Registration Statement or other registration statement is not then effective and thereafter shall promptly notify such holders when such Resale Registration Statement or other registration statement is effective again and available for the sale or resale of the Conversion Shares underlying the Series B-2 Preferred Stock and the Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability of the Company to issue, or any Purchaser to sell, any of the Conversion Shares underlying the Series B-2 Preferred Stock and the Warrant Shares in compliance with applicable federal and state securities laws). The Company shall use best efforts to keep the Resale Registration Statement registering the issuance or resale of the Warrant Shares effective during the period beginning on its effective date until the expiration of the Warrants. Upon a cashless exercise of a Warrant, the holding period for purposes of Rule 144 shall tack back to the original date of issuance of such Warrant.

Underlying Shares. If (i) all or any shares of Preferred Stock are converted at a time when there is an effective registration statement to cover the issuance or resale of the Conversion Shares underlying the Preferred Stock or Rule 144 is available for resale of such Conversion Shares underlying the Preferred Stock, the Conversion Shares underlying the Preferred Stock issued pursuant to any such conversion shall be issued free of all legends and (ii) all or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the issuance or resale of the Warrant Shares or if the Warrant is exercised via cashless exercise, the Warrant Shares issued pursuant to any such exercise shall be issued free of all legends. If If, at any time following its effective date, the Resale Registration Statement (or any subsequent registration statement registering the sale or resale of Conversion Shares underlying the Preferred Stock or the Warrant Shares) is not effective or is not otherwise available for the sale or resale of the Conversion Shares underlying the Preferred Stock or the Warrant Shares, the Company shall immediately notify the holders of the Preferred Stock and the Warrants in writing that such Resale Registration Statement or other registration statement is not then effective and thereafter shall promptly notify such holders when such Resale Registration Statement or other registration statement is effective again and available for the sale or resale of the Conversion Shares underlying the Preferred Stock and the Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability of the Company to issue, or any Purchaser to sell, any of the Conversion Shares underlying the Preferred Stock and the Warrant Shares in compliance with applicable federal and state securities laws). The Company shall use best efforts to keep the Resale Registration Statement registering the issuance or resale of the Warrant Shares effective during the period beginning on its effective date until the expiration of the Warrants. Upon a cashless exercise of a Warrant, the holding period for purposes of Rule 144 shall tack back to the original date of issuance of such Warrant.