Common use of Cash Damages Clause in Contracts

Cash Damages. If (x) (I) within three (3) Trading Days after the Company’s receipt of the facsimile copy of a Conversion Notice or (II) on any Company Delivery Date, the Company shall fail to credit a Holder’s balance account with DTC or issue and deliver a certificate to such Holder for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s conversion, as applicable, of Preferred Shares or (y) within three (3) Trading Days of the Company’s receipt of a Preferred Stock Certificate the Company shall fail to issue and deliver a new Preferred Stock Certificate representing the number of Preferred Shares to which such Holder is entitled pursuant to Section 2(d)(ii), then due to the uncertainty and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to the delay and not as a penalty, the Company shall pay additional damages to such Holder for each day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.5%) of the product of (I) the sum of the number of shares of Common Stock not issued to the Holder on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (II) the Closing Sale Price of the Common Stock on the Share Delivery Date or Company Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A) within five (5) Trading Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicable.

Cash Damages. If (x) (I) within three (3) Trading Days after the CompanyCorporation’s receipt of the facsimile copy of a Conversion Notice or (II) on any Company Delivery Date, the Company Corporation shall fail to credit a Holder’s balance account with DTC or issue and deliver a certificate to such Holder for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s conversion, as applicable, of Preferred Shares or (y) within three (3) Trading Days of the Company’s receipt of a Series A Preferred Stock Certificate the Company shall fail to issue and deliver (a new Preferred Stock Certificate representing the number of Preferred Shares to which such Holder is entitled pursuant to Section 2(d)(ii“Conversion Failure”), then due in addition to all other available remedies which such holder may pursue hereunder and under the uncertainty and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to the delay and not as a penaltyother Transaction Documents, including any indemnification provisions therein, the Company Corporation shall pay additional damages to such Holder for each day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.5%) of the product of (I) the sum of the number of shares of Common Stock not issued to the Holder on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (II) the Closing Sale Price of the Common Stock on the Share Delivery Date or Company Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company Corporation fails to pay the additional damages set forth in this Section 2(d)(v)(A8(b)(iii)(A) within five (5) Trading Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company Corporation continues to fail to make such payments, to require the CompanyCorporation, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery DateNotice. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company Corporation shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversionof Series A Preferred Stock, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company Corporation (a “Buy-In”), then the Company Corporation shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and out-of-pocket expenses, if any) for the shares of Common Stock so purchased (the “Buy-In Price”), at which point the CompanyCorporation’s obligation to deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date Date. Nothing herein shall limit a 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 Delivery Date, Corporation’s failure to timely deliver certificates representing shares of Common Stock upon conversion of the Series A Preferred Stock as applicablerequired pursuant to the terms hereof.

Cash Damages. If (x) (I) within three (3) Trading Days after the Company’s 's receipt of the facsimile copy of a duly completed Conversion Notice or (II) on any Company Delivery Date, the Company shall fail to credit a Holder’s 's balance account with DTC, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program and the Conversion Shares are eligible for immediate resale by such Holder, or issue and deliver a certificate to such Holder Holder, if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, in each case for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s 's conversion or the Company’s conversion, as applicable, of Preferred Shares (subject to the resolution of any bona fide dispute pursuant to Section 2(c)(iii) above solely as to any disputed shares) or (y) within three (3) Trading Days of the Company’s 's receipt of a Preferred Stock Certificate the Company shall fail to issue and deliver a new Preferred Stock Certificate representing the number of Preferred Shares to which such Holder is entitled pursuant to Section 2(d)(ii2(c)(ii), then due in addition to all other available remedies which such holder may pursue hereunder and under the uncertainty and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due Securities Purchase Agreement (including indemnification pursuant to the delay and not as a penaltySection 9(k) thereof), the Company shall pay additional damages to such Holder for each day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.5%) of the product of (I) the sum of the number of shares of Common Stock not issued to the Holder on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in and the event the Company has failed to deliver a Preferred Stock terms of this Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date Designations and (II) the Closing Sale Price of the Common Stock on the Share Delivery Date or Company Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A2(c)(v)(A) within five (5) Trading Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery DateNotice. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder Holder, if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, or credit such Holder’s 's balance account with DTC, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program and the Conversion Shares are eligible for immediate resale by such Holder, in each case for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s 's conversion or the Company’s 's Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “"Buy-In”"), then the Company shall, within three (3) Trading Days after the Holder’s 's request and in the Holder’s 's discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s 's total purchase price (including brokerage commissions and out-of-pocket expenses, if any) for the shares of Common Stock so purchased (the “"Buy-In Price”"), at which point the Company’s 's obligation to deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date Date. Nothing herein shall limit a 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 Delivery Date, Company's failure to timely deliver certificates representing shares of Common Stock upon conversion of the Preferred Shares as applicablerequired pursuant to the terms hereof.

Cash Damages. If (x) (I) within three (3) Trading Days after the Company’s 's receipt of the facsimile copy of a Conversion Notice or (II) on any Company Delivery Date, the Company shall fail to credit a Holder’s 's balance account with DTC or issue and deliver a certificate to such Holder for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s 's conversion or the Company’s 's conversion, as applicable, of Preferred Shares or (y) within three (3) Trading Days of the Company’s 's receipt of a Preferred Stock Certificate the Company shall fail to issue and deliver a new Preferred Stock Certificate representing the number of Preferred Shares to which such Holder is entitled pursuant to Section 2(d)(ii), then due to the uncertainty and difficulty of estimating a Holder’s 's damages for such delay and as a reasonable estimate of such Holder’s 's actual loss due to the delay and not as a penalty, the Company shall pay additional damages to such Holder for each day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.5%) of the product of (I) the sum of the number of shares of Common Stock not issued to the Holder on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (II) the Closing Sale Price of the Common Stock on the Share Delivery Date or Company Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A) within five (5) Trading Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s 's balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s 's conversion or the Company’s 's Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “"Buy-In”"), then the Company shall, within three (3) Trading Days after the Holder’s 's request and in the Holder’s 's discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s 's total purchase price (including brokerage commissions and out-of-pocket expenses, if any) for the shares of Common Stock so purchased (the “"Buy-In Price”"), at which point the Company’s 's obligation to deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicable.

Cash Damages. If (x) (I) within three five (35) Trading Business Days after the Company’s 's receipt of the facsimile copy of a Conversion Notice or (II) on any Company Delivery Date, the Company shall fail to credit a Holder’s balance account with DTC or issue and deliver a certificate to a holder or credit such Holder holder's balance account with DTC for the number of shares of Common Stock to which such Holder holder is entitled upon such Holder’s holder's conversion or the Company’s conversion, as applicable, of Preferred Shares or (yII) within three five (35) Trading Business Days of the Company’s 's receipt of a Preferred Stock Certificate the Company shall fail to issue and deliver a new Preferred Stock Certificate representing the number of Preferred Shares to which such Holder holder is entitled pursuant to Section 2(d)(ii), then due in addition to all other available remedies which such holder may pursue hereunder and under the uncertainty Second Redemption and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due Exchange Agreement (including indemnification pursuant to the delay and not as a penaltySection 8 thereof), the Company shall pay additional damages to such Holder holder for each day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.5%) 0.5% of the product of (I) the sum of the number of shares of Common Stock not issued to the Holder holder on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such Holder holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate to the Holder holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (II) the Closing Sale Price of the Common Stock on the Share Delivery Date or Company Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A) within five (5) Trading Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicable.

Cash Damages. If (x) (I) within three (3) Trading Days after by the Company’s receipt of the facsimile copy of a Conversion Notice or (II) on any Company Share Delivery Date, the Company shall fail to issue the Conversion Shares and deliver a certificate to the Holder for, or credit a the Holder’s or its designee’s balance account with DTC or issue and deliver a certificate to such Holder for with, the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s conversionConversion Shares, as applicable, (free of Preferred Shares or (y) within three (3) Trading Days any restrictive legend, provided any of the Company’s receipt of Unrestricted Conditions is satisfied) (a Preferred Stock Certificate the Company shall fail to issue and deliver a new Preferred Stock Certificate representing the number of Preferred Shares to which such Holder is entitled pursuant to Section 2(d)(ii“Delivery Failure”), then due then, in addition to all other available remedies that the uncertainty Holder may pursue hereunder and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to under the delay and not as a penaltyMerger Agreement, the Company shall pay ​ additional damages to such the Holder for each day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half two percent (1.52%) of the product of (I) the sum of the number of shares of Common Stock Conversion Shares not issued to the Holder or its designee on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such the Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (II) the Closing Sale Volume Weighted Average Price of the Common Stock on the Share Delivery Date (such product is referred to herein as the “Share Product Amount”). Alternatively in lieu of the foregoing damages, subject to Section 3(c)(iii), at the written election of the Holder made in the Holder’s sole discretion, if, on or after the applicable Conversion Date, the Holder purchases (in an open market transaction or otherwise) Shares to deliver in satisfaction of a sale by such Holder of Conversion Shares that such Holder anticipated receiving from the Company (such purchased Shares, “Buy-In Shares”), the Company shall be obligated to promptly pay to such Holder (in addition to all other available remedies that the Holder may otherwise have), 110% of the amount by which (A) such Holder’s total purchase price (including brokerage commissions, if any) for such Buy-In Shares exceeds (B) the net proceeds received by such Holder from the sale of the number of Conversion Shares such Holder was entitled to receive but had not received on the Share Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A3(c)(v)(A) within five (5) Trading Business Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock Shares equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice Notice. Amounts payable pursuant to this Section 3(c)(v) shall be paid on or before the fifth (5th) Business Day of each month following a month in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicablepayment accrued.

Cash Damages. If (x) (I) within three (3) Trading Days after by the Company’s receipt of the facsimile copy of a Conversion Notice or (II) on any Company Share Delivery Date, the Company Borrower shall fail to credit a Holderthe Lender’s or its designee’s balance account with DTC or issue and deliver a certificate to such Holder for with the number of shares Conversion Shares (free of Common Stock to which such Holder any restrictive legend, provided the Unrestricted Condition is entitled upon such Holder’s conversion or the Company’s conversion, as applicable, of Preferred Shares or (y) within three (3) Trading Days of the Company’s receipt of a Preferred Stock Certificate the Company shall fail to issue and deliver a new Preferred Stock Certificate representing the number of Preferred Shares to which such Holder is entitled pursuant to Section 2(d)(iisatisfied), then due then, in addition to all other available remedies that the uncertainty Lender may pursue hereunder and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to under the delay and not as a penaltyFacility Agreement, the Company Borrower shall pay additional damages to such Holder the Lender for each day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one one-half percent (1.5%) of the product of (I) the sum of the number of shares of Common Stock Conversion Shares not issued to the Holder Lender or its designee on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such Holder the Lender is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (II) the Closing Sale Volume Weighted Average Price of the Common Stock on the Share Delivery Date Date. Alternatively in lieu of the foregoing damages, subject to Section 2(c)(iii), at the written election of the Lender made in the Lender’s sole discretion, if, on or Company after the applicable Conversion Date, the Lender purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Lender of Conversion Shares that such Lender anticipated receiving from the Borrower (such purchased shares, “Buy-In Shares”), the Borrower shall be obligated to promptly pay to such Lender (in addition to all other available remedies that the Lender may otherwise have), 110% of the amount by which (A) such Lender’s total purchase price (including brokerage commissions, if any) for such Buy-In Shares exceeds (B) the net proceeds received by such Lender from the sale of a number of shares equal to up to the number of Conversion Shares such Lender was entitled to receive but had not received on the Share Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company Borrower fails to pay the additional damages set forth in this Section 2(d)(v)(A2(c)(v)(A) within five (5) Trading Business Days of the date incurred, then the Holder Lender entitled to such payments shall have the right at any time, so long as the Company Borrower continues to fail to make such payments, to require the CompanyBorrower, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder Lender in the Conversion Notice or in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicableNotice.

Cash Damages. If (x) (I) within three (3) Trading Days after the Company’s receipt of the facsimile copy of a Conversion Notice or (II) on any Company Delivery Date, the Company shall fail on or prior to the Share Delivery Date to credit a Holder’s balance account with DTC, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, or issue and deliver a certificate to such Holder Holder, if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, in each case for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s conversion, as applicable, of Series B Preferred Shares or (y) within three (3) Trading Days of the Company’s receipt of a Series B Preferred Stock Certificate the Company shall fail to issue and deliver a new Series B Preferred Stock Certificate representing the number of Series B Preferred Shares to which such Holder is entitled pursuant to Section 2(d)(ii3(c)(ii), then due in addition to all other available remedies which such holder may pursue hereunder and under the uncertainty and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due Securities Purchase Agreement (including indemnification pursuant to the delay and not as a penaltySection 9(k) thereof), the Company shall pay additional damages to such Holder for each day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Series B Preferred Stock Delivery Date that such Series B Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.51.0%) of the product of (I) the sum of the number of shares of Common Stock not issued to the such Holder on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice andand the terms of this Certificate of Designations, in the event the Company has failed to deliver a new Series B Preferred Stock Certificate to the such Holder on or prior to the Series B Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Series B Preferred Shares represented by such Series B Preferred Stock Certificate as of the Series B Preferred Stock Delivery Date and (II) the Closing Sale Price of the Common Stock on the Share Delivery Date or Company Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Series B Preferred Stock Delivery Date, in the case of failure to deliver a Series B Preferred Stock Certificate. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A3(c)(iv)(A) within five (5) Trading Days of the date incurred, then the such Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the such Holder in the Conversion Notice or in effect on the Company Delivery DateNotice. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, or credit such Holder’s balance account with DTC, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, in each case for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion of Series B Preferred Shares or on any date of the Company’s Conversion, obligation to deliver shares of Common Stock as applicable, of Preferred Sharescontemplated pursuant to clause (ii) below, and if on or after such Trading Day the such Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the such Holder of the shares of Common Stock issuable upon such conversion that the such Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the such Holder’s request and in the such Holder’s discretion, either (i) pay cash to the such Holder in an amount equal to the such Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the such Holder a certificate or certificates representing such Common Stock and pay cash to the such 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 Stock, times (B) the Closing Sale Price on the Conversion Date Date. Nothing herein shall limit a 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 upon conversion of the Series B Preferred Shares as required pursuant to the terms hereof. Notwithstanding anything to the contrary contained herein, the Company Delivery Date, as applicableshall not be required to make any cash payments under this Section 3(c)(iv)(A) with respect to any Conversion Notices delivered prior to the consummation of the Merger.

Cash Damages. If (x) (I) within three (3) Trading Days after by the Company’s receipt of the facsimile copy of a Conversion Notice or (II) on any Company Share Delivery Date, the Company shall fail to credit a Holder’s balance account with DTC or issue and deliver a certificate to such Holder for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s conversion, as applicable, of Preferred Shares or (y) within three (3) Trading Days of the Company’s receipt of a Preferred Stock Certificate the Company Corporation shall fail to issue and deliver a new Preferred Stock Certificate representing certificate to a Converting Holder for, or credit such Converting Holder’s or its designee’s balance account with DTC with, the number of Preferred Conversion Shares to which such Converting Holder is entitled pursuant to this Section 2(d)(ii7 (provided any Unrestricted Condition is satisfied, free of any restrictive legend), then due then, such Converting Holder shall reasonably promptly provide written notice to the uncertainty and difficulty Corporation that such Converting Holder was not issued the number of estimating a Holder’s damages for Conversion Shares to which such delay and as a reasonable estimate of Converting Holder is entitled pursuant to this Section 7, and, in addition to all other available remedies that such Holder’s actual loss due to the delay and not as a penaltyConverting Holder may pursue hereunder, the Company Corporation shall pay additional damages to such Converting Holder for each day after the Share Delivery Date or the Company Delivery Date, as applicable, date such written notice is delivered that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.51%) of the product of (I) the sum of the number of shares of Common Stock Conversion Shares not issued to the Converting Holder or its designee on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such the Converting Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (II) the Closing Sale Volume Weighted Average Price of the Common Stock on the Share Delivery Date Date. Alternatively, in lieu of the foregoing damages, if applicable, at the written election of the applicable Converting Holder made in such Converting Holder’s sole discretion, if, on or Company after the applicable Share Delivery Date, as applicablesuch Converting Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Converting Holder of Conversion Shares that such Converting Holder anticipated receiving from the Corporation (such purchased shares, “Buy-In Shares”), the Corporation shall be obligated to promptly pay to such Converting Holder (in addition to all other available remedies that the case Converting Holder may otherwise have), 105% of the failure amount by which (A) such Converting Holder’s total purchase price (including brokerage commissions, if any) for such Buy-In Shares exceeds (B) the net proceeds received by such Converting Holder from the sale of the number of shares equal to deliver Common Stock, or up to the Preferred Stock number of Conversion Shares such Converting Holder was entitled to receive but had not received on the Share Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company Corporation fails to pay the additional damages set forth in this Section 2(d)(v)(A7(f)(i) within five (5) Trading Business Days of the date incurred, then the Converting Holder entitled to such payments shall have the right at any time, so long as the Company Corporation continues to fail to make such payments, to require the CompanyCorporation, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicable.

Cash Damages. If (x) (I) within three (3) Trading Days after the Company’s 's receipt of the facsimile copy of a Conversion Notice or (II) on any Company Delivery Date, the Company shall fail to credit a Holder’s 's balance account with DTC or issue and deliver a certificate to such Holder for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s 's conversion or the Company’s conversion, as applicable, of Preferred Shares or (y) within three (3) Trading Days of the Company’s 's receipt of a Preferred Stock Certificate the Company shall fail to issue and deliver a new Preferred Stock Certificate representing the number of Preferred Shares to which such Holder is entitled pursuant to Section 2(d)(ii3(c)(ii), then due to the uncertainty and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to the delay and not as a penalty, the Company shall pay additional damages to such Holder for each day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.51.0%) of the product of (I) the sum of the number of shares of Common Stock not issued to the Holder on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a new Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (II) the Closing Sale Price of the Common Stock on the Share Delivery Date or Company Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company fails to pay the additional any such cash damages set forth described above are not paid when due in this Section 2(d)(v)(A) within five (5) Trading Days of the date incurredcash, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu amount of such cash damagesdamages shall (unless the Required Holders shall have given notice to the Company otherwise) automatically accrue and be added to the Liquidation Preference as of such due date. Nothing herein shall limit a 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 number of Company's failure to timely deliver certificates representing shares of Common Stock equal upon conversion of the Preferred Shares as required pursuant to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicableterms hereof.

Cash Damages. If (x) (I) within three (3) Trading Days after by the Company’s receipt of the facsimile copy of a Conversion Notice or (II) on any Company Share Delivery Date, the Company shall fail to issue the Conversion Shares and deliver a certificate to the Holder for, or credit a the Holder’s or its designee’s balance account with DTC or issue and deliver a certificate to such Holder for with, the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s conversionConversion Shares, as applicable, (free of Preferred Shares or (y) within three (3) Trading Days any restrictive legend, provided any of the Company’s receipt of Unrestricted Conditions is satisfied) (a Preferred Stock Certificate the Company shall fail to issue and deliver a new Preferred Stock Certificate representing the number of Preferred Shares to which such Holder is entitled pursuant to Section 2(d)(ii“Delivery Failure”), then due then, in addition to all other available remedies that the uncertainty Holder may pursue hereunder and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to under the delay and not as a penaltyMerger Agreement, the Company shall pay additional damages to such the Holder for each day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half two percent (1.52%) of the product of (I) the sum of the number of shares of Common Stock Conversion Shares not issued to the Holder or its designee on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such the Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (II) the Closing Sale Volume Weighted Average Price of the Common Stock on the Share Delivery Date (such product is referred to herein as the “Share Product Amount”). Alternatively in lieu of the foregoing damages, subject to Section 3(c)(iii), at the written election of the Holder made in the Holder’s sole discretion, if, on or after the applicable Conversion Date, the Holder purchases (in an open market transaction or otherwise) Shares to deliver in satisfaction of a sale by such Holder of Conversion Shares that such Holder anticipated receiving from the Company (such purchased Shares, “Buy-In Shares”), the Company shall be obligated to promptly pay to such Holder (in addition to all other available remedies that the Holder may otherwise have), 110% of the amount by which (A) such Holder’s total purchase price (including brokerage commissions, if any) for such Buy-In Shares exceeds (B) the net proceeds received by such Holder from the sale of the number of Conversion Shares such Holder was entitled to receive but had not received on the Share Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A3(c)(v)(A) within five (5) Trading Business Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock Shares equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice Notice. Amounts payable pursuant to this Section 3(c)(v) shall be paid on or before the fifth (5th) Business Day of each month following a month in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicablepayment accrued.

Cash Damages. If (x) (I) within three (3) Trading Business Days after the Company’s 's receipt of the facsimile copy of a Conversion Notice or (II) on any Company Delivery Date, the Company shall fail to credit a Holder’s 's balance account with DTC or issue and deliver a certificate to such Holder for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s 's conversion or the Company’s conversion, as applicable, of Preferred Shares or (yII) within three (3) Trading Business Days of the Company’s 's receipt of a Preferred Stock Certificate the Company shall fail to issue and deliver a new Preferred Stock Certificate representing the number of Preferred Shares to which such Holder is entitled pursuant to Section 2(d)(ii), then due in addition to all other available remedies which such Holder may pursue hereunder and under the uncertainty and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to the delay and not as a penaltySecurities Purchase Agreement, the Company shall pay additional damages in cash to such the Holder for on each day after such third Business Day that the Share Delivery Date or the Company Delivery Date, as applicable, that issuance of such conversion shares of Common Stock is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.5%) % of the product of (IA) the sum of the number of shares of Common Stock not issued to the Holder on or prior to the Share Delivery Date or Company Delivery Date, as applicable, a timely basis and to which such the Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (IIB) the Closing Sale Price of the shares of Common Stock on the Share Delivery Date or Company Delivery Date, as applicable, in Trading Day immediately preceding the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If last possible date which the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A) within five (5) Trading Days of the date incurred, then the Holder entitled to could have issued such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery Datewithout violating Section 2(d)(ii). In addition to the foregoing, if within three (i3) on Trading Days after the Share Delivery Date or (ii) on any Company Delivery Date, Company's receipt of the facsimile copy of a Conversion Notice the Company shall fail to issue and deliver a certificate to a the Holder and register such shares of Common Stock on the Company's share register or credit such the Holder’s 's balance account with DTC for the number of shares of Common Stock to which such the Holder is entitled upon such Holder’s 's conversion or the Company’s Conversion, as applicable, of Preferred SharesShares hereunder, and if on or after such the third Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy"BUY-In”IN"), then the Company shall, within three (3) Trading Business Days after the Holder’s 's request and in the Holder’s 's discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s 's total purchase price (including brokerage commissions and out-of-pocket expensescommissions, if any) for the shares of Common Stock so purchased (the “Buy"BUY-In Price”IN PRICE"), at which point the Company’s 's obligation to deliver such certificate (and to issue such shares of Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such shares of Common Stock and pay cash to 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 Stock, times multiplied by (B) the 8 Closing Sale Bid Price on the Conversion Date Date, provided that, so long as the Senior Credit Facility (as defined in the Securities Purchase Agreement) remains outstanding, each of the Holders hereby acknowledges, covenants and agrees that such Holder will not demand or accept, and the Company Delivery Datewill not be obligated to make, any payment (each a "DELAY FEE") (whether in whole or in part) required to be made pursuant to this SECTION 2(D)(V), SECTION 1(C) of the Warrants (regarding the Company's obligation to make payments in the event of its failure to timely deliver securities upon exercise of the Warrants) and SECTION 2(F) of the Registration Rights Agreement (regarding the Company's obligation to make Registration Delay Payments, as applicabledefined in the Registration Rights Agreement), which would, in the aggregate of all of the aforementioned payments made to all Holders, exceed $250,000 in the aggregate in any calendar year (the "DELAY FEE CAP"). Each Holder agrees that, so long as the Senior Credit Facility (as defined in the Securities Purchase Agreement) is outstanding, (i) such Holder does not have any rights to, and shall not accept or demand any, Delay Fees in excess of its pro rata share of the Delay Fee Cap and (ii) to the extent any amounts are received with respect to the Delay Fees by such Holder from the Company in excess of such Holder's pro rata share of the Delay Fee Cap, such Holder shall promptly forward an amount equal to such excess in immediately available funds to the Administrative Agent (as defined in the Senior Credit Facility) at such account as the Administrative Agent shall designate from time to time.

Cash Damages. If (x) (I) within three (3) Trading Business Days after the Company’s receipt of the facsimile or electronic mail copy of a Conversion Notice or (II) on any Company Delivery Date, the Company shall fail to credit a Holder’s balance account with DTC or issue and deliver a certificate to such Holder for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s conversion, as applicable, of Preferred Shares or (y) within three (3) Trading Days of the Company’s deemed receipt of a Preferred Stock Certificate Conversion Notice the Company shall fail to issue and deliver a new Preferred Stock Certificate representing certificate to the Holder for, or credit the Holder’s or its designee’s balance account with DTC with, the number of Preferred Conversion Shares (free of any restrictive legend if the Unrestricted Conditions (as defined below) are met) to which such the Holder is entitled pursuant to Section 2(d)(ii)upon the Holder’s conversion of any Conversion Amount, then due in addition to all other available remedies that the uncertainty Holder may pursue hereunder and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to under the delay and not as a penaltyFacility Agreement, the Company shall pay additional damages to such the Holder for each 30-day period (prorated for any partial period) after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one one-half percent (1.5%) of of, the product of (I) the sum of the number of shares of Common Stock Conversion Shares not issued to the Holder or its designee on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such the Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (II) the Closing Sale Volume Weighted Average Price of the an Common Stock Share on the Share Delivery Date or (such product is referred to herein as the “Share Product Amount. Alternatively, subject to Section 2(c)(iii), at the election of the Holder made in the Holder’s sole discretion, the Company Delivery Date, as applicableshall pay to the Holder, in the case lieu of the failure additional damages referred to deliver Common Stock, or the Preferred Stock Delivery Date, in the case preceding sentence (but in addition to all other available remedies that the Holder may pursue hereunder and under the Facility Agreement), 105% of failure the amount by which (A) the Holder’s total purchase price (including brokerage commissions, if any) for the Shares purchased to deliver make delivery in satisfaction of a Preferred Stock Certificatesale by the Holder of the Conversion Shares to which the Holder is entitled but has not received upon a conversion exceeds (B) the net proceeds received by the Holder from the sale of the Shares to which the Holder is entitled but has not received upon such conversion. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A2(c)(v)(A) within five (5) Trading Business Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock Shares equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicableNotice.

Cash Damages. If within five (x5) (I) within three (3) Trading Business Days after the Company’s Transfer Agent's receipt of the facsimile Preferred Stock Certificates to be converted and a copy of a the Conversion Notice or (IIthe "Share Delivery Period") on any Company Delivery Date, the Company Transfer Agent shall fail to issue a certificate to a Holder or credit a such Holder’s 's balance account with DTC or issue and deliver a certificate to such Holder The Depository Trust Company for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s 's conversion or the Company’s conversion, as applicable, of Preferred Shares or (y) within three (3) Trading Days of the Company’s receipt of a Preferred Stock Certificate the Company shall fail to issue and deliver a new Preferred Stock Certificate representing the number of Preferred Shares to which such Holder is entitled pursuant to Section 2(d)(ii2(e)(ii) (a "Conversion Failure"), then due in addition to all other available remedies which such Holder may pursue hereunder and under the Securities Purchase Agreement (including indemnification pursuant to the uncertainty and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to the delay and not as a penaltyprovisions thereof), the Company shall pay additional damages to such Holder for on each day date after the Share Delivery Date or the Company Delivery Date, as applicable, that such third (3rd) Business Day such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.5%) 1.0% of the product of (I) the sum of the number of shares of Common Stock not issued to the Holder on or prior a timely basis pursuant to the Share Delivery Date or Company Delivery Date, as applicable, Section 2(e)(ii) and to which such Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate to the Holder on or prior a timely basis pursuant to the Preferred Stock Delivery DateSection 2(e)(ii), the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate Certificate, as of the last possible date which the Company could have issued such Preferred Stock Delivery Date Certificate to such Holder without violating Section 2(e)(ii) and (II) the Closing Sale Price of the Common Stock on the Share Delivery Date last possible date which the Company could have issued such Common Stock or Company Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a such Preferred Stock Certificate, as the case may be, to such Holder without violating Section 2(e)(ii). If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A2(e)(v) within five (5) Trading Business Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash shall be considered Registrable Securities pursuant to the Holder in an amount equal to Registration Rights Agreements and shall have the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicablerespective registration rights thereunder.

Cash Damages. If (x) (I) within three (3) Trading Business Days after the Company’s receipt of the facsimile or electronic mail copy of a Conversion Notice or (II) on any Company Delivery Date, the Company shall fail to credit a Holder’s balance account with DTC or issue and deliver a certificate to such Holder for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s conversion, as applicable, of Preferred Shares or (y) within three (3) Trading Days of the Company’s deemed receipt of a Preferred Stock Certificate Conversion Notice the Company shall fail to issue and deliver a new Preferred Stock Certificate representing certificate to the Holder for, or credit the Holder’s or its designee’s balance account with DTC with, the number of Preferred Conversion Shares (free of any restrictive legend if the Unrestricted Conditions (as defined below) are met) to which such the Holder is entitled pursuant to Section 2(d)(ii), then due to upon the uncertainty and difficulty of estimating a Holder’s damages for such delay conversion of any Conversion Amount (a “Delivery Failure”) then in addition to all other available remedies that the Holder may pursue hereunder and as a reasonable estimate of such Holder’s actual loss due to under the delay and not as a penaltyFacility Agreement, the Company shall pay additional damages to such the Holder for each day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.51%) of the product of (I) the sum of the number of shares of Common Stock Conversion Shares not issued to the Holder or its designee on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such the Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (II) the Closing Sale Volume Weighted Average Price of the Common Stock on the Share Delivery Date (such product is referred to herein as the “Share Product Amount”) Alternatively in lieu of the foregoing damages, subject to Section 2(c)(iii), at the written election of the Holder made in the Holder’s sole discretion, if, on or after the applicable Conversion Date, the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Holder of Conversion Shares that such Holder anticipated receiving from the Company (such purchased shares, “Buy-In Shares”), the Company shall be obligated to promptly pay to such Holder (in addition to all other available remedies that the Holder may otherwise have), 107.5% of the amount by which (A) such Holder’s total purchase price (including brokerage commissions, if any) for such Buy-In Shares exceeds (B) the net proceeds received by such Holder from the sale of the number of shares equal to up to the number of Conversion Shares such Holder was entitled to receive but had not received on such Share Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A2(c)(v)(A) within five (5) Trading Business Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock Shares equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicableNotice.

Cash Damages. If (x) (I) within three (3) Trading Days after by the Company’s receipt of the facsimile copy of a Conversion Notice or (II) on any Company Share Delivery Date, the Company shall fail to credit a Holder’s balance account with DTC or issue and deliver to an Eligible Transferee or a certificate to such Holder for Holder, as applicable, (i) the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s conversionSeries C Preferred Stock, as applicable, to which such Eligible Transferee or Holder is entitled hereunder upon such Eligible Transferee’s or Holder’s conversion of the Series E Preferred Shares Stock or (yii) within three (3) Trading Days of the Company’s receipt of a Preferred Stock Certificate the Company shall fail to issue and deliver a new Preferred Stock Certificate certificate representing the number of shares of Series E Preferred Shares Stock that are not being converted, in addition to all other available remedies to which such Eligible Transferee or Holder is entitled pursuant to Section 2(d)(ii), then due to may pursue hereunder and under the uncertainty and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to the delay and not as a penaltyTransaction Documents, the Company shall pay additional damages to such Eligible Transferee or Holder for on each day Business Day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.5%) 0.5% of the product of (IA) the sum of the number of shares of Common Stock (in the case of a conversion into Common Stock) or the number of Common Stock issuable upon conversion of the shares of Series C Preferred Stock (in the case of a conversion into Series C Preferred Stock), as applicable, not issued to the such Eligible Transferee or Holder on or prior to by the Share Delivery Date or Company Delivery Date, as applicable, and to which such Eligible Transferee or Holder is entitled as set forth (or in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed case of failure to deliver a new certificate representing shares of Series E Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Datenot being converted, the number of shares of Common Stock issuable upon conversion of the such shares of Series E Preferred Shares Stock (assuming that a Permitted Transfer was made to an Eligible Transferee) that would be represented by such Preferred Stock Certificate certificate as of the Preferred Stock Share Delivery Date and Date), multiplied by (IIB) the Closing Sale Price of the Common Stock on the Share Delivery Date or Company Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A6(f) within five (5) Trading Business Days of the date incurred, then the Holder entitled to such payments shall have bear interest at the rate of 1.5% per month (pro rated for partial months) until such payments are made. Nothing herein shall limit an Eligible Transferee’s or a Holder’s right to pursue any other remedies available to it hereunder, at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice law or in effect on the Company Delivery Date. In addition equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock failure to timely deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) Series C Preferred Stock and/or a certificate representing the Closing Sale Price on the Conversion Date or the Company Delivery Dateremaining shares of Series E Preferred Stock, as applicable, upon conversion of the Series E Preferred Stock in accordance with the terms hereof.

Cash Damages. If (x) within five (I) within three (35) Trading Days after the Company’s Parent's receipt of the by facsimile copy and electronic mail of a Conversion an Exchange Notice or (II) on any Company Delivery Date, the Company Parent shall fail to (i) credit a Holder’s an Investor's balance account with DTC, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, (ii) credit such aggregate number of shares of Common Shares to which the Investor shall be entitled to the Investor's or its designee's balance account with CDS or (iii) issue and deliver a certificate to such Holder Investor, if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program and is not CDS Eligible, in each case for the number of shares of Common Stock Shares to which such Holder Investor is entitled upon such Holder’s conversion or the Company’s conversion, as applicable, Investor's exchange of Preferred Shares or (y) within three five (35) Trading Days of the applicable Company’s 's receipt of a Preferred Stock Certificate the Company Parent shall fail to issue co-ordinate the issuance and deliver delivery of a new Preferred Stock Certificate representing the number of Preferred Shares to which such Holder Investor is entitled pursuant to Section 2(d)(ii4(s)(iii)(B), then due in addition to the uncertainty and difficulty of estimating a Holder’s damages for all other available remedies which such delay and as a reasonable estimate of such Holder’s actual loss due holder may pursue hereunder (including indemnification pursuant to the delay and not as a penaltySection 9(l) thereof), the Company Parent shall pay additional damages to such Holder Investor for each day after the Share Delivery Date or fifth Trading Day after the Company Delivery Date, as applicable, date of the Exchange Notice that such conversion exchange is not timely effected and/or each day after the Preferred Stock Delivery Date fifth Trading Day after the date of the Exchange Notice that such Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.51.0%) of the product of (I) the sum of the number of shares of Common Stock Shares not issued to the Holder Investor on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such Holder Investor is entitled as set forth in the applicable Conversion Exchange Notice or in any Company Conversion Notice andand the terms of this Agreement, and in the event the applicable Company has failed to deliver a new Preferred Stock Certificate to the Holder Investor on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock Shares issuable upon conversion exchange of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (II) the Closing Sale Price of the Common Stock Shares on the Share Delivery Date or Company Delivery Date, as applicable, in the case of the failure to deliver Common StockShares, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company Parent fails to pay the additional damages set forth in this Section 2(d)(v)(A4(s)(iii)(E)(I) within five (5) Trading Days of the date incurred, then the Holder Investor entitled to such payments shall have the right at any time, so long as the Company Parent continues to fail to make such payments, to require the CompanyParent, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock Shares equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Exchange Price in effect on such Conversion Exchange Date as specified by the Holder Investor in the Conversion Notice or in effect on the Company Delivery DateExchange Notice. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company Parent shall fail to issue and deliver a certificate to a Holder an Investor, if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, or (i) credit such Holder’s Investor's balance account with DTC, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program or (ii) credit such Investor's balance account with CDS, if the Transfer Agent is CDS Eligible, in each case for the number of shares of Common Stock Shares to which such Holder Investor is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, Investor's exchange of Preferred Shares, and if on or after such Trading Day the Holder Investor purchases (in an open market transaction or otherwise) shares of Common Stock Shares to deliver in satisfaction of a sale by the Holder Investor of the shares of Common Stock Shares issuable upon such conversion exchange that the Holder Investor anticipated receiving from the Company Parent (a “"Buy-In”"), then the Company Parent shall, within three (3) Trading Days after the Holder’s Investor's request and in the Holder’s Investor's discretion, either (i) pay cash to the Holder Investor in an amount equal to the Holder’s Investor's total purchase price (including brokerage commissions and 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 Parent's obligation to deliver such certificate (and to issue such Common StockShares) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder Investor a certificate or certificates representing such Common Stock Shares and pay cash to the Holder Investor 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 StockShares, times (B) the Closing Sale Price on the Conversion Date Exchange Date. Nothing herein shall limit an Investor'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 Delivery Date, Parent's failure to timely deliver certificates representing shares of Common Shares upon exchange of the Preferred Shares as applicablerequired pursuant to the terms hereof.

Cash Damages. If (x) (I) within three (3) Trading ten Business Days after the Company’s 's receipt of the facsimile copy of a Conversion Notice or (II) on any Company Delivery Date, the Company shall fail to issue a certificate to the Holder or its designee or credit a the Holder’s 's or its designee's balance account with DTC or issue and deliver a certificate to such Holder for the number of shares of Common Stock to which such Holder or its designee is entitled upon such Holder’s 's conversion or the Company’s conversionof this Note or, as applicablesubject to Section 2(d)(vi), of Preferred Shares or (y) within three (3) Trading Days of the Company’s receipt of a Preferred Stock Certificate the Company shall fail to issue and deliver a new Preferred Stock Certificate Note representing the number of Preferred Shares principal amount to which such Holder is entitled entitled, if any, pursuant to Section 2(d)(ii), then due in addition to all other available remedies which such Holder may pursue hereunder and under the uncertainty and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to the delay and not as a penaltyPurchase Agreement (including indemnification thereunder), the Company shall pay additional damages to such Holder for each day date after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day date after the Preferred Stock Note Delivery Date that such Preferred Stock Certificate new Note is not delivered in an amount equal to one and one half percent (1.5%) 0.5% of the product of (I) the sum of the number of shares of Common Stock not issued to the Holder or its designee on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such Holder or its designee is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate new Note to the Holder on or prior to the Preferred Stock Note Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares Conversion Amount represented by such Preferred Stock Certificate new Note, as of the Preferred Stock Note Delivery Date and (II) the Closing Sale Current Market Price of the Common Stock on the Share Delivery Date or Company Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Note Delivery Date, in the case of failure to deliver a Preferred Stock Certificatenew Note. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A2(d)(v) within five (5) Trading Business Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicableNotice.

Cash Damages. If (x) (I) within three ten (310) Trading Days calendar days after the Company’s 's receipt of the facsimile copy of a Conversion Notice or (II) on any Company Delivery Date, the Company shall fail to credit a Holder’s 's balance account with DTC or issue and deliver a certificate to such Holder for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s 's conversion or the Company’s conversion, as applicable, of Preferred Shares (a "Conversion Failure") or (yII) within three ten (310) Trading Days calendar days of the Company’s 's receipt of a Preferred Stock Share Certificate the Company shall fail to issue and deliver a new Preferred Stock Share Certificate representing the number of Preferred Shares to which such Holder is entitled pursuant to Section 2(d)(ii), then due in addition to all other available remedies which such holder may pursue hereunder and under the uncertainty and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due Securities Purchase Agreement (including indemnification pursuant to the delay and not as a penaltySection 9(k) thereof), the Company shall pay additional damages to such Holder for each day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Share Delivery Date that such Preferred Stock Share Certificate is not delivered in an amount equal to one and one half percent (1.5%) 1.0% of the product of (I) the sum of the number of shares of Common Stock not issued to the Holder on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Share Certificate to the Holder on or prior to the Preferred Stock Share Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Share Certificate as of the Preferred Stock Share Delivery Date and (II) the Closing Sale Price of the Common Stock on the Share Delivery Date or Company Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Share Delivery Date, in the case of failure to deliver a Preferred Stock Share Certificate. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A2(d)(v) within five (5) Trading Business Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery DateNotice. In addition to the foregoing, if within three (i3) on Business Days after the Share Delivery Date or (ii) on any Company Delivery Date, Company's receipt of a Conversion Notice the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s 's balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s 's conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Business Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “"Buy-In”"), then the Company shall, within three (3) Trading Business Days after the Holder’s 's request and in the Holder’s 's discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s 's total purchase price (including brokerage commissions and out-of-pocket expensescommissions, if any) for the shares of Common Stock so purchased (the “"Buy-In Price”"), at which point the Company’s 's obligation to deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, Stock times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicable.

Cash Damages. If (x) (I) within three (3) Trading Days after by the Company’s receipt of the facsimile copy of a Conversion Notice or (II) on any Company Share Delivery Date, the Company shall fail to credit a Holder’s balance account with DTC or issue and deliver to an Eligible Transferee or a certificate to such Holder for Holder, as applicable, (i) the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s conversionSeries C Preferred Stock, as applicable, to which such Eligible Transferee or Holder is entitled hereunder upon such Eligible Transferee’s or Holder’s conversion of the Series D Preferred Shares Stock or (yii) within three (3) Trading Days of the Company’s receipt of a Preferred Stock Certificate the Company shall fail to issue and deliver a new Preferred Stock Certificate certificate representing the number of shares of Series D Preferred Shares Stock that are not being converted, in addition to all other available remedies to which such Eligible Transferee or Holder is entitled pursuant to Section 2(d)(ii), then due to may pursue hereunder and under the uncertainty and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to the delay and not as a penaltyTransaction Documents, the Company shall pay additional damages to such Eligible Transferee or Holder for on each day Business Day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.5%) 0.5% of the product of (IA) the sum of the number of shares of Common Stock (in the case of a conversion into Common Stock) or the number of Common Stock issuable upon conversion of the shares of Series C Preferred Stock (in the case of a conversion into Series C Preferred Stock), as applicable, not issued to the such Eligible Transferee or Holder on or prior to by the Share Delivery Date or Company Delivery Date, as applicable, and to which such Eligible Transferee or Holder is entitled as set forth (or in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed case of failure to deliver a new certificate representing shares of Series D Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Datenot being converted, the number of shares of Common Stock issuable upon conversion of the such shares of Series D Preferred Shares Stock (assuming that a Permitted Transfer was made to an Eligible Transferee) that would be represented by such Preferred Stock Certificate certificate as of the Preferred Stock Share Delivery Date and Date), multiplied by (IIB) the Closing Sale Price of the Common Stock on the Share Delivery Date or Company Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A6(f) within five (5) Trading Business Days of the date incurred, then the Holder entitled to such payments shall have bear interest at the rate of 1.5% per month (pro rated for partial months) until such payments are made. Nothing herein shall limit an Eligible Transferee’s or a Holder’s right to pursue any other remedies available to it hereunder, at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice law or in effect on the Company Delivery Date. In addition equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock failure to timely deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) Series C Preferred Stock and/or a certificate representing the Closing Sale Price on the Conversion Date or the Company Delivery Dateremaining shares of Series D Preferred Stock, as applicable, upon conversion of the Series D Preferred Stock in accordance with the terms hereof.

Cash Damages. If (x) (I) within three (3) Trading Days after the Company’s Corporation's receipt of the facsimile copy of a Conversion Notice or (II) on any Company Delivery Date, the Company Corporation shall fail to credit a Holder’s 's balance account with DTC or issue and deliver a certificate to such Holder for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s 's conversion or the Company’s conversion, as applicable, of Preferred Shares or (y) within three (3) Trading Days of the Company’s receipt of a Series A Preferred Stock Certificate the Company shall fail to issue and deliver (a new Preferred Stock Certificate representing the number of Preferred Shares to which such Holder is entitled pursuant to Section 2(d)(ii“Conversion Failure”), then due to the uncertainty and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to the delay and not as a penalty, the Company shall pay additional damages to such Holder for each day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.5%) of the product of (I) the sum of the number of shares of Common Stock not issued to the Holder on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (II) the Closing Sale Price of the Common Stock on the Share Delivery Date or Company Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A) within five (5) Trading Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company Corporation (a “Buy-In”), then in addition to all other available remedies which such holder may pursue hereunder and under the Company other Transaction Documents, including any indemnification provisions therein), then the Corporation shall, within three (3) Trading Days after the Holder’s 's request and in the Holder’s 's discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s 's total purchase price (including brokerage commissions and out-of-pocket expenses, if any) for the shares of Common Stock so purchased (the “Buy-In Price”), at which point the Company’s Corporation's obligation to deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date Date. Nothing herein shall limit a 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 Delivery Date, Corporation's failure to timely deliver certificates representing shares of Common Stock upon conversion of the Series A Preferred Stock as applicablerequired pursuant to the terms hereof.

Cash Damages. If within five (x5) (I) within three (3) Trading Business Days after the Company’s receipt of the facsimile or electronic mail copy of a Conversion Notice or (II) on any Company Delivery Date, the Company shall fail to credit a Holder’s balance account with DTC or issue and deliver a certificate to such Holder for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s conversion, as applicable, of Preferred Shares or (y) within three (3) Trading Days of the Company’s deemed receipt of a Preferred Stock Certificate Conversion Notice the Company shall fail to issue and deliver a new Preferred Stock Certificate representing certificate to the Holder for, or credit the Holder’s or its designee’s balance account with DTC with, the number of Preferred Conversion Shares (free of any restrictive legend if the Unrestricted Conditions (as defined below) are met) to which such the Holder is entitled pursuant upon the Holder’s conversion of any Conversion Amount (subject to Section 2(d)(ii2(c)(iii)), then due in addition to all other available remedies that the uncertainty Holder may pursue hereunder and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to under the delay and not as a penaltyFacility Agreement, the Company shall pay additional damages to such the Holder for each 30-day period (such additional damages to be prorated for any partial period) after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.51%) of the product of (I) the sum of the number of shares of Common Stock Conversion Shares not issued to the Holder or its designee on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such the Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (II) the Closing Sale Volume Weighted Average Price of the Common Stock on the Share Delivery Date or (such product is referred to herein as the “Share Product Amount”). Alternatively, subject to Section 2(c)(iii), at the election of the Holder made in the Holder’s sole discretion, the Company Delivery Date, as applicableshall pay to the Holder, in the case lieu of the failure additional damages referred to deliver Common Stock, or the Preferred Stock Delivery Date, in the case preceding sentence (but in addition to all other available remedies that the Holder may pursue hereunder and under the Facility Agreement), 105% of failure the amount by which (A) the Holder’s total purchase price (including brokerage commissions, if any) for the Shares purchased to deliver make delivery in satisfaction of a Preferred Stock Certificatesale by the Holder of the Conversion Shares to which the Holder is entitled but has not received upon a conversion exceeds (B) the net proceeds received by the Holder from the sale of the Shares to which the Holder is entitled but has not received upon such conversion. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A2(c)(v)(A) within five (5) Trading Business Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock Shares equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicableNotice.

Cash Damages. If (x) (I) within three (3) Trading Days after by the Company’s receipt of the facsimile copy of a Conversion Notice or (II) on any Company Share Delivery Date, the Company shall fail to issue the Conversion Shares and deliver a certificate to the Holder for, or credit a the Holder’s or its designee’s balance account with DTC or issue and deliver a certificate to such Holder for with, the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s conversionConversion Shares, as applicable, (free of Preferred Shares or (y) within three (3) Trading Days any restrictive legend, provided any of the Company’s receipt of Unrestricted Conditions is satisfied) (a Preferred Stock Certificate the Company shall fail to issue and deliver a new Preferred Stock Certificate representing the number of Preferred Shares to which such Holder is entitled pursuant to Section 2(d)(ii“Delivery Failure”), then due then, in addition to all other available remedies that the uncertainty Holder may pursue hereunder and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to under the delay and not as a penaltyFacility Agreement, the Company shall pay additional damages to such the Holder for each day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half two percent (1.52%) of the product of (I) the sum of the number of shares of Common Stock Conversion Shares not issued to the Holder or its designee on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such the Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (II) the Closing Sale Volume Weighted Average Price of the Common Stock on the Share Delivery Date (such product is referred to herein as the “Share Product Amount”). Alternatively in lieu of the foregoing damages, subject to Section 2(c)(iii), at the written election of the Holder made in the Holder’s sole discretion, if, on or after the applicable Conversion Date, the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Holder of Conversion Shares that such Holder anticipated receiving from the Company (such purchased shares, “Buy-In Shares”), the Company shall be obligated to promptly pay to such Holder (in addition to all other available remedies that the Holder may otherwise have), 110% of the amount by which (A) such Holder’s total purchase price (including brokerage commissions, if any) for such Buy-In Shares exceeds (B) the net proceeds received by such Holder from the sale of the number of Conversion Shares such Holder was entitled to receive but had not received on the Share Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A2(c)(v)(A) within five (5) Trading Business Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock Shares equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice Notice. Amounts payable pursuant to this Section 2(c)(v) shall be paid on or before the fifth (5th) Business Day of each month following a month in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicablepayment accrued.

Cash Damages. If (x) (I) within three (3) Trading Days after the Company’s receipt of the facsimile copy of a Conversion Notice or (II) on any Company Delivery Date, the Company shall fail to credit a Holder’s balance account with DTC or issue and deliver a certificate to such Holder for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s conversion, as applicable, of Preferred Shares or (y) within three (3) Trading Days of the Company’s receipt of a Preferred Stock Certificate the Company shall fail to issue and deliver a new Preferred Stock Certificate representing the number of Preferred Shares to which such Holder is entitled pursuant to Section 2(d)(ii3(c)(ii), then due in addition to all other available remedies which such holder may pursue hereunder and under the uncertainty and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to the delay and not as a penaltySecurities Purchase Agreement, the Company shall pay additional damages to such Holder for each day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.51.0%) of the product of (I) the sum of the number of shares of Common Stock not issued to the Holder on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a new Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (II) the Closing Sale Price of the Common Stock on the Share Delivery Date or Company Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company fails to pay the additional any such cash damages set forth described above are not paid when due in this Section 2(d)(v)(A) within five (5) Trading Days of the date incurredcash, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu amount of such cash damagesdamages shall (unless the Required Holders shall have given notice to the Company otherwise) automatically accrue and be added to the Liquidation Preference as of such due date. Nothing herein shall limit a 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 number of Company’s failure to timely deliver certificates representing shares of Common Stock equal upon conversion of the Preferred Shares as required pursuant to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicableterms hereof.

Cash Damages. If (x) (I) within three (3) Trading Days after by the Company’s receipt of the facsimile copy of a Conversion Notice or (II) on any Company Share Delivery Date, the Company shall fail to credit a the Holder’s or its designee’s balance account with DTC or issue and deliver a certificate to such Holder for with the applicable number of shares Conversion Shares (free of Common Stock to which such Holder any restrictive legend, provided the Unrestricted Condition is entitled upon such Holder’s conversion or the Company’s conversion, as applicable, of Preferred Shares or satisfied) (y) within three (3) Trading Days of the Company’s receipt of a Preferred Stock Certificate the Company shall fail to issue and deliver a new Preferred Stock Certificate representing the number of Preferred Shares to which such Holder is entitled pursuant to Section 2(d)(ii“Delivery Failure”), then due then, in addition to all other available remedies that the uncertainty Holder may pursue hereunder and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to under the delay and not as a penaltyFacility Agreement, the Company shall pay additional damages to such the Holder for each day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one one-half percent (1.5%) of the product of (I) the sum of the number of shares of Common Stock Conversion Shares not issued to the Holder or its designee on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such the Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (II) the Closing Sale Volume Weighted Average Price of the Common Stock on the Share Delivery Date or Company Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A) within five (5) Trading Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, Alternatively in lieu of such cash the foregoing damages, at the number of shares of Common Stock equal to the quotient of (X) the aggregate amount written election of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder made in the Conversion Notice or in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversionsole discretion, as applicableif, of Preferred Shares, and if on or after such Trading Day the applicable Conversion Date, the Holder purchases (in an open market transaction or otherwise) shares of Common Stock Shares to deliver in satisfaction of a sale by the such Holder of the shares of Common Stock issuable upon Conversion Shares that such conversion that the Holder anticipated receiving from the Company (a such purchased Shares, “Buy-InIn Shares”), then the Company shall, within three shall (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (iA) pay cash to the Holder in an the amount equal to the by which (I) such Holder’s total purchase price (including brokerage commissions and out-of-pocket expensescommissions, if any) for the shares of Common Stock so purchased (the “such Buy-In Price”)Shares exceeds (II) the net proceeds received by the Holder from the sale of the number of Conversion Shares the Holder was entitled to receive but had not received on the Share Delivery Date, and (B) at the option of the Holder, by notice to the Company made via electronic mail prior to receipt by Holder of the Conversion Shares, either reinstate the portion of this Note and equivalent number of Conversion Shares for which point the Company’s obligation to deliver such certificate (and to issue such Common Stock) shall terminate, conversion was not honored or (ii) promptly honor its obligation to deliver to the Holder the number of Common Shares that would have been issued had the Company timely complied with its conversion and delivery obligations hereunder. Nothing herein shall limit the Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a certificate or decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing such Common Stock and pay cash Shares upon conversion of this Note as required pursuant to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicableterms hereof.

Cash Damages. If (x) (I) within three (3) Trading Business Days after the Company’s receipt of the facsimile or electronic mail copy of a Conversion an Exchange Notice or (II) on any Company Delivery Date, the Company shall fail to credit a Holder’s balance account with DTC or issue and deliver a certificate to such Holder for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s conversion, as applicable, of Preferred Shares or (y) within three (3) Trading Days of the Company’s deemed receipt of a Preferred Stock Certificate an Exchange Notice the Company Parent shall fail to issue and deliver a new Preferred Stock Certificate representing certificate to the Holder for, or credit the Holder’s or its designee’s balance account with DTC with, the number of Preferred Exchange Shares (free of any restrictive legend if the Unrestricted Conditions (as defined below) are met), or, as applicable, the Company shall fail to deliver the Exchange Cash Settlement Amount on or prior to the Cash Settlement Date, to which such the Holder is entitled pursuant to Section 2(d)(ii)upon the Holder’s exchange of any Exchange Amount, then due in addition to all other available remedies that the uncertainty Holder may pursue hereunder and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to under the delay and not as a penaltyFacility Agreement, the Company shall pay additional damages to such the Holder for each 30-day period (prorated for any partial period) after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion exchange is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one one-half percent (1.5%) of, (1) in the case of an Exchange for which an Exchange Cash Settlement Election has not been made, the product of (I) the sum of the number of shares of Common Stock Exchange Shares not issued to the Holder or its designee on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such the Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (II) the Closing Sale Volume Weighted Average Price of the Common Stock an Ordinary Share on the Share Delivery Date or Company Delivery Date, as applicable, (2) in the case of an Exchange for which a Cash Settlement Election has been made, the failure Exchange Cash Settlement Amount that was not paid on or prior to deliver Common Stockthe Cash Settlement Date. Alternatively, or subject to Section 2(c)(iii), at the Preferred Stock Delivery Dateelection of the Holder made in the Holder’s sole discretion, the Company shall pay to the Holder, in lieu of the case additional damages referred to in the preceding sentence (but in addition to all other available remedies that the Holder may pursue hereunder and under the Facility Agreement), 105% of failure the amount by which (A) the Holder’s total purchase price (including brokerage commissions, if any) for the Shares purchased to deliver make delivery in satisfaction of a Preferred Stock Certificatesale by the Holder of the Exchange Shares to which the Holder is entitled but has not received upon an exchange exceeds (B) the net proceeds received by the Holder from the sale of the Shares to which the Holder is entitled but has not received upon such exchange. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A2(c)(v)(A) within five (5) Trading Business Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to cause the Parent to immediately issue, in lieu of such cash damages, the number of shares of Common Stock Shares equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Exchange Price in effect on such Conversion Exchange Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicableExchange Notice.

Cash Damages. If (x) (I) within three (3) Trading Days after the Company’s receipt of the facsimile copy of a Conversion Notice or (II) on any Company Delivery Date, the Company shall fail to credit a Holder’s balance account with DTC or issue and deliver a certificate to such Holder for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s conversion, as applicable, of Preferred Shares or (y) within three (3) Trading Days of the Company’s receipt of a Preferred Stock Certificate the Company shall fail to issue and deliver a new Preferred Stock Certificate representing the number of Preferred Shares to which such Holder is entitled pursuant to Section 2(d)(ii), then due in addition to all other available remedies which such holder may pursue hereunder and under the uncertainty and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due Securities Purchase Agreement (including indemnification pursuant to the delay and not as a penaltySection 9(k) thereof), the Company shall pay additional damages to such Holder for each day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.5%) of the product of (I) the sum of the number of shares of Common Stock not issued to the Holder on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (II) the Closing Sale Price of the Common Stock on the Share Delivery Date or Company Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A) within five (5) Trading Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three five (35) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicable.

Cash Damages. If (x) (I) within three (3) Trading Days after the Company’s 's receipt of the facsimile copy of a duly completed Conversion Notice or (II) on any Company Delivery Date, the Company shall fail to credit a Holder’s 's balance account with DTC, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program and the Conversion Shares are eligible for immediate resale by such Holder, or issue and deliver a certificate to such Holder Holder, if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, in each case for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s 's conversion or the Company’s conversion, as applicable, of Preferred Shares (subject to the resolution of any bona fide dispute pursuant to Section 2(c)(iii) above solely as to any disputed shares) or (y) within three (3) Trading Days of the Company’s 's receipt of a Preferred Stock Certificate the Company shall fail to issue and deliver a new Preferred Stock Certificate representing the number of Preferred Shares to which such Holder is entitled pursuant to Section 2(d)(ii2(c)(ii), then due in addition to all other available remedies which such holder may pursue hereunder and under the uncertainty and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due Securities Purchase Agreement (including indemnification pursuant to the delay and not as a penaltySection 9(k) thereof), the Company shall pay additional damages to such Holder for each day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.5%) of the product of (I) the sum of the number of shares of Common Stock not issued to the Holder on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in and the event the Company has failed to deliver a Preferred Stock terms of this Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date Designations and (II) the Closing Sale Price of the Common Stock on the Share Delivery Date or Company Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A2(c)(v)(A) within five (5) Trading Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery DateNotice. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder Holder, if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, or credit such Holder’s 's balance account with DTC, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program and the Conversion Shares are eligible for immediate resale by such Holder, in each case for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s 's conversion or the Company’s 's Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s 's request and in the Holder’s 's discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s 's total purchase price (including brokerage commissions and out-of-pocket expenses, if any) for the shares of Common Stock so purchased (the “Buy-In Price”), at which point the Company’s 's obligation to deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date Date. Nothing herein shall limit a 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 Delivery Date, Company's failure to timely deliver certificates representing shares of Common Stock upon conversion of the Preferred Shares as applicablerequired pursuant to the terms hereof.

Cash Damages. If (x) (I) within three (3) Trading Business Days after the Company’s receipt of the facsimile or electronic mail copy of a Conversion Notice or (II) on any Company Delivery Date, the Company shall fail to credit a Holder’s balance account with DTC or issue and deliver a certificate to such Holder for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s conversion, as applicable, of Preferred Shares or (y) within three (3) Trading Days of the Company’s deemed receipt of a Preferred Stock Certificate Conversion Notice the Company shall fail to issue and deliver a new Preferred Stock Certificate representing certificate to the Holder for, or credit the Holder’s or its designee’s balance account with DTC with, the number of Preferred Conversion Shares (free of any restrictive legend if the Unrestricted Conditions (as defined below) are met) to which such the Holder is entitled pursuant upon the Holder’s conversion of any Conversion Amount (subject to Section 2(d)(ii2(c)(iii)), then due in addition to all other available remedies that the uncertainty Holder may pursue hereunder and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to under the delay and not as a penaltyNote Purchase Agreement, the Company shall pay additional damages to such the Holder for each 30-day period (such additional damages to be prorated for any partial period) after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.51%) of the product of (I) the sum of the number of shares of Common Stock Conversion Shares not issued to the Holder or its designee on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such the Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (II) the Closing Sale Volume Weighted Average Price of the Common Stock on the Share Delivery Date or (such product is referred to herein as the “Share Product Amount”). Alternatively, subject to Section 2(c)(iii), at the election of the Holder made in the Holder’s sole discretion, the Company Delivery Date, as applicableshall pay to the Holder, in the case lieu of the failure additional damages referred to deliver Common Stock, or the Preferred Stock Delivery Date, in the case preceding sentence (but in addition to all other available remedies that the Holder may pursue hereunder and under the Note Purchase Agreement), 107.5% of failure the amount by which (A) the Holder’s total purchase price (including brokerage commissions, if any) for the Shares purchased to deliver make delivery in satisfaction of a Preferred Stock Certificatesale by the Holder of the Conversion Shares to which the Holder is entitled but has not received upon a conversion exceeds (B) the net proceeds received by the Holder from the sale of the Shares to which the Holder is entitled but has not received upon such conversion. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A2(c)(v)(A) within five (5) Trading Business Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock Shares equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicableNotice.

Cash Damages. If (x) (I) within three (3) Trading Days after the Company’s receipt of the facsimile copy of a Conversion Notice or (II) on any Company Delivery Date, the Company shall fail to credit a Holder’s balance account with DTC or issue and deliver a certificate to such Holder for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s conversion, as applicable, of Preferred Shares (a “Conversion Failure”) or (yII) within three (3) Trading Days of the Company’s receipt of a Preferred Stock Share Certificate the Company shall fail to issue and deliver a new Preferred Stock Share Certificate representing the number of Preferred Shares to which such Holder is entitled pursuant to Section 2(d)(ii), then due in addition to all other available remedies which such holder may pursue hereunder and under the uncertainty and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due Securities Purchase Agreement (including indemnification pursuant to the delay and not as a penaltySection 9(k) thereof), the Company shall pay additional damages to such Holder for each day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Share Delivery Date that such Preferred Stock Share Certificate is not delivered in an amount equal to one and one half percent (1.5%) 1.0% of the product of (I) the sum of the number of shares of Common Stock not issued to the Holder on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Share Certificate to the Holder on or prior to the Preferred Stock Share Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Share Certificate as of the Preferred Stock Share Delivery Date and (II) the Closing Sale Price of the Common Stock on the Share Delivery Date or Company Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Share Delivery Date, in the case of failure to deliver a Preferred Stock Share Certificate. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A2(d)(v) within five (5) Trading Business Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery DateNotice. In addition to the foregoing, if within three (i3) on Business Days after the Share Delivery Date or (ii) on any Company Delivery Date, Company’s receipt of the facsimile copy of a Conversion Notice the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Business Day the Holder purchases (in an open market transaction or otherwisein another bona fide transaction) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Business Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and out-of-pocket expensescommissions, 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 (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicable.

Cash Damages. If within four (x4) (I) within three (3) Trading Business Days after the Company’s receipt of the facsimile copy of a Conversion Notice or (II) on any Company Delivery Date, Overnight Receipt Date the Company shall fail to issue a certificate to the Holder or credit a the Holder’s 's balance account with DTC or issue and deliver a certificate to such Holder for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s 's conversion or the Company’s conversionof this Note or, as applicablesubject to Section 2(d)(viii), of Preferred Shares or (y) within three (3) Trading Days of the Company’s receipt of a Preferred Stock Certificate the Company shall fail to issue and deliver a new Preferred Stock Certificate Note representing the number of Preferred Shares principal amount to which such Holder holder is entitled entitled, if any, pursuant to Section 2(d)(ii), then due in addition to all other available remedies which such Holder may pursue hereunder and under the uncertainty and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due Securities Purchase Agreement (including indemnification pursuant to the delay and not as a penaltySection 8 thereof), the Company shall pay additional damages to such Holder for each day date after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day date after the Preferred Stock Note Delivery Date that such Preferred Stock Certificate new Note is not delivered in an amount equal to one and one half percent (1.5%) 0.5% of the product of (I) the sum of the number of shares of Common Stock not issued to the Holder on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate new Note to the Holder on or prior to the Preferred Stock Note Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares Conversion Amount represented by such Preferred Stock Certificate the new Note, as of the Preferred Stock Note Delivery Date and (II) the Closing Sale Bid Price of the Common Stock on the Share Delivery Date or Company Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Note Delivery Date, in the case of failure to deliver a Preferred Stock Certificatenew Note. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A2(d)(v) within five (5) Trading Business Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder holder in the Conversion Notice or in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicableNotice.

Cash Damages. If (x) (I) within three (3) Trading Days after by the Company’s receipt of the facsimile copy of a Conversion Notice or (II) on any Company Share Delivery Date, the Company shall fail to credit a the Holder’s or its designee’s balance account with DTC or issue and deliver a certificate to such Holder for with the number of shares Conversion Shares (free of Common Stock to which such Holder any restrictive legend, provided the Unrestricted Condition is entitled upon such Holder’s conversion or the Company’s conversion, as applicable, of Preferred Shares or satisfied) (y) within three (3) Trading Days of the Company’s receipt of a Preferred Stock Certificate the Company shall fail to issue and deliver a new Preferred Stock Certificate representing the number of Preferred Shares to which such Holder is entitled pursuant to Section 2(d)(ii“Delivery Failure”), then due then, in addition to all other available remedies that the uncertainty Holder may pursue hereunder and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to under the delay and not as a penaltyFacility Agreement, the Company shall pay additional damages to such the Holder for each day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.51%) of the product of (I) the sum of the number of shares of Common Stock Conversion Shares not issued to the Holder or its designee on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such the Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (II) the Closing Sale Volume Weighted Average Price of the Common Stock on the Share Delivery Date (such product is referred to herein as the “Share Product Amount”). Alternatively in lieu of the foregoing damages, subject to Section 2(c)(iii), at the written election of the Holder made in the Holder’s sole discretion, if, on or after the applicable Conversion Date, the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Holder of Conversion Shares that such Holder anticipated receiving from the Company (such purchased shares, “Buy-In Shares”), the Company shall be obligated to promptly pay to such Holder (in addition to all other available remedies that the Holder may otherwise have), 107.5% of the amount by which (A) such Holder’s total purchase price (including brokerage commissions, if any) for such Buy-In Shares exceeds (B) the net proceeds received by such Holder from the sale of the number of shares equal to up to the number of Conversion Shares such Holder was entitled to receive but had not received on the Share Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A2(c)(v)(A) within five (5) Trading Business Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock Shares equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicableNotice.

Cash Damages. If (x) (I) within three (3) Trading Days after the Company’s receipt of the facsimile copy of a Conversion Notice or (II) on any Company Delivery Date, the Company shall fail to credit a Holder’s balance account with DTC or issue and deliver a certificate to such Holder for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s conversion, as applicable, of Preferred Shares or (y) within three (3) Trading Days of the Company’s receipt of a Preferred Stock Certificate the Company shall fail to issue and deliver a new Preferred Stock Certificate representing the number of Preferred Shares to which such Holder is entitled pursuant to Section 2(d)(ii3(c)(ii), then due to the uncertainty and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to the delay and not as a penalty, the Company shall pay additional damages to such Holder for each day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.51.0%) of the product of (I) the sum of the number of shares of Common Stock not issued to the Holder on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a new Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (II) the Closing Sale Price of the Common Stock on the Share Delivery Date or Company Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company fails to pay the additional any such cash damages set forth described above are not paid when due in this Section 2(d)(v)(A) within five (5) Trading Days of the date incurredcash, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu amount of such cash damagesdamages shall (unless the Required Holders shall have given notice to the Company otherwise) automatically accrue and be added to the Liquidation Preference as of such due date. Nothing herein shall limit a 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 number of Company’s failure to timely deliver certificates representing shares of Common Stock equal upon conversion of the Preferred Shares as required pursuant to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicableterms hereof.

Cash Damages. If (x) (I) within three (3) Trading Days after by the Company’s receipt of the facsimile copy of a Conversion Notice or (II) on any Company Share Delivery Date, the Company shall fail to credit a Holder’s balance account with DTC or issue and deliver a certificate to such Holder for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s conversion, as applicable, of Preferred Shares or (y) within three (3) Trading Days of the Company’s receipt of a Preferred Stock Certificate the Company Corporation shall fail to issue and deliver a new Preferred Stock Certificate representing certificate to a Converting Holder for, or credit such Converting Holder’s or its designee’s balance account with DTC with, the number of Preferred Conversion Shares to which such Converting Holder is entitled pursuant to this Section 2(d)(ii7 (provided any Unrestricted Condition is satisfied, free of any restrictive legend), then due then, such Converting Holder shall reasonably promptly provide written notice to the uncertainty and difficulty Corporation that such Converting Holder was not issued the number of estimating a Holder’s damages for Conversion Shares to which such delay and as a reasonable estimate of Converting Holder is entitled pursuant to this Section 7, and, in addition to all other available remedies that such Holder’s actual loss due to the delay and not as a penaltyConverting Holder may pursue hereunder, the Company Corporation shall pay additional damages to such Converting Holder for each day after the Share Delivery Date or the Company Delivery Date, as applicable, date such written notice is delivered that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.51%) of the product of (I) the sum of the number of shares of Common Stock Conversion Shares not issued to the Converting Holder or its designee on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such the Series A Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (II) the Closing Sale Volume Weighted Average Price of the Common Stock on the Share Delivery Date Date. Alternatively, in lieu of the foregoing damages, if applicable, at the written election of the applicable Converting Holder made in such Converting Holder’s sole discretion, if, on or Company after the applicable Share Delivery Date, as applicablesuch Converting Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Converting Holder of Conversion Shares that such Converting Holder anticipated receiving from the Corporation (such purchased shares, “Buy-In Shares”), the Corporation shall be obligated to promptly pay to such Series A Holder (in addition to all other available remedies that the case Series A Holder may otherwise have), 105% of the failure amount by which (A) such Converting Holder’s total purchase price (including brokerage commissions, if any) for such Buy-In Shares exceeds (B) the net proceeds received by such Converting Holder from the sale of the number of shares equal to deliver Common Stock, or up to the Preferred Stock number of Conversion Shares such Converting Holder was entitled to receive but had not received on the Share Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company Corporation fails to pay the additional damages set forth in this Section 2(d)(v)(A7(f)(i) within five (5) Trading Business Days of the date incurred, then the Converting Holder entitled to such payments shall have the right at any time, so long as the Company Corporation continues to fail to make such payments, to require the CompanyCorporation, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicable.

Cash Damages. If (x) (I) within three (3) Trading Days after the Company’s Corporation's receipt of the facsimile copy of a Conversion Notice or (II) on any Company Delivery Date, the Company Corporation shall fail to credit a Holder’s 's balance account with DTC or issue and deliver a certificate to such Holder for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s 's conversion or the Company’s conversion, as applicable, of Preferred Shares or (y) within three (3) Trading Days of the Company’s receipt of a Series A Preferred Stock Certificate the Company shall fail to issue and deliver (a new Preferred Stock Certificate representing the number of Preferred Shares to which such Holder is entitled pursuant to Section 2(d)(ii"Conversion Failure"), then due to the uncertainty and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to the delay and not as a penalty, the Company shall pay additional damages to such Holder for each day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.5%) of the product of (I) the sum of the number of shares of Common Stock not issued to the Holder on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (II) the Closing Sale Price of the Common Stock on the Share Delivery Date or Company Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A) within five (5) Trading Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company Corporation (a “"Buy-In”"), then in addition to all other available remedies which such holder may pursue hereunder and under the other Transaction Documents, including any indemnification provisions therein), then the Company Corporation shall, within three (3) Trading Days after the Holder’s 's request and in the Holder’s 's discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s 's total purchase price (including brokerage commissions and out-of-pocket expenses, if any) for the shares of Common Stock so purchased (the “"Buy-In Price”"), at which point the Company’s Corporation's obligation to deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date Date. Nothing herein shall limit a 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 Delivery Date, Corporation's failure to timely deliver certificates representing shares of Common Stock upon conversion of the Series A Preferred Stock as applicablerequired pursuant to the terms hereof.

Cash Damages. If (x) (I) within three (3) Trading Days after by the Company’s receipt of the facsimile copy of a Conversion Notice or (II) on any Company Share Delivery Date, the Company Borrower shall fail to credit a Holderthe Lender’s or its designee’s balance account with DTC or issue and deliver a certificate to such Holder for with the number of shares Conversion Shares (free of Common Stock to which such Holder is entitled upon such Holder’s conversion or any restrictive legend in the Company’s conversion, as applicable, of Preferred Shares or (y) within three (3) Trading Days of the Company’s receipt case of a Preferred Stock Certificate Mandatory Conversion or Forced Conversion or, provided the Company shall fail to issue and deliver Unrestricted Condition is satisfied, in the case of a new Preferred Stock Certificate representing the number of Preferred Shares to which such Holder is entitled pursuant to Section 2(d)(iiVoluntary Conversion), then due then, in addition to all other available remedies that the uncertainty Lender may pursue hereunder and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to under the delay and not as a penaltyFacility Agreement, the Company Borrower shall pay additional damages to such Holder the Lender for each day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one one-half percent (1.5%) of the product of (I) the sum of the number of shares of Common Stock Conversion Shares not issued to the Holder Lender or its designee on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such Holder the Lender is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (II) the Closing Sale Volume Weighted Average Price of the Common Stock on the Share Delivery Date Date. Alternatively in lieu of the foregoing damages, subject to Section 2(c)(iii), at the written election of the Lender made in the Lender’s sole discretion, if, on or Company after the applicable Conversion Date, the Lender purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Lender of Conversion Shares that such Lender anticipated receiving from the Borrower (such purchased shares, “Buy-In Shares”), the Borrower shall be obligated to promptly pay to the Lender (in addition to all other available remedies that the Lender may otherwise have), 110% of the amount by which (A) the Lender’s total purchase price (including brokerage commissions, if any) for such Buy-In Shares exceeds (B) the net proceeds received by the Lender from the sale of a number of shares equal to up to the number of Conversion Shares such Lender was entitled to receive but had not received on the Share Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company Borrower fails to pay the additional damages set forth in this Section 2(d)(v)(A2(c)(v)(A) within five (5) Trading Business Days of the date incurred, then the Holder Lender entitled to such payments shall have the right at any time, so long as the Company Borrower continues to fail to make such payments, to require the CompanyBorrower, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery Date. In addition applicable to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock conversion to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicableadditional damages relate.

Cash Damages. If (x) (I) within three (3) Trading Business Days after the Company’s 's receipt of the facsimile copy of a Conversion Notice or (II) on any Company Delivery Date, the Company shall fail to issue a certificate to the holder or credit a Holder’s the holder's balance account with DTC or issue and deliver a certificate to such Holder for the number of shares of Common Stock to which such Holder holder is entitled upon such Holder’s holder's conversion or the Company’s conversionof this Note or, as applicablesubject to Section 2(d)(viii), of Preferred Shares or (y) within three (3) Trading Days of the Company’s receipt of a Preferred Stock Certificate the Company shall fail to issue and deliver a new Preferred Stock Certificate Note representing the number of Preferred Shares principal amount to which such Holder holder is entitled entitled, if any, pursuant to Section 2(d)(ii), then due in addition to all other available remedies which such holder may pursue hereunder and under the uncertainty and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to the delay and not as a penaltySecurities Purchase Agreement, the Company shall pay additional damages to such Holder holder for each day date after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day date after the Preferred Stock Note Delivery Date that such Preferred Stock Certificate new Note is not delivered in an amount equal to one and one half percent (1.5%) 0.5% of the product of (I) the sum of the number of shares of Common Stock not issued to the Holder holder on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such Holder holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate new Note to the Holder holder on or prior to the Preferred Stock Note Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares Conversion Amount represented by such Preferred Stock Certificate the new Note, as of the Preferred Stock Note Delivery Date and (II) the Closing Sale Bid Price of the Common Stock on the Share Delivery Date or Company Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Note Delivery Date, in the case of failure to deliver a Preferred Stock Certificatenew Note. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A2(d)(v) within five (5) Trading Business Days of the date incurred, then the Holder holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder holder in the Conversion Notice or in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicableNotice.

Cash Damages. If (x) (I) within three (3) Trading Days after on or prior to the Company’s receipt of the facsimile copy of a Conversion Notice or (II) on any Company applicable Share Delivery Date, Date the Company shall fail to issue to a Holder in book- entry from at the Transfer Agent or credit a such Holder’s balance account with DTC or issue and deliver a certificate to such Holder DTC, as applicable, for the number of shares of Common Stock to which such Holder is entitled upon such HolderXxxxxx’s conversion or the Company’s conversion, as applicable, of Series A Preferred Shares or the Company fails to comply with its obligation to deliver shares of Common Stock as contemplated pursuant to clause (yii) within three below (3) Trading Days unless such failure is due solely to the action or inaction of the Company’s receipt Holder or an agent of the Holder) (each, a Preferred Stock Certificate the Company shall fail to issue and deliver a new Preferred Stock Certificate representing the number of Preferred Shares to which such Holder is entitled pursuant to Section 2(d)(ii“Conversion Failure”), then due then, in addition to all other remedies available to the uncertainty and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to the delay and not as a penalty, (A) the Company shall pay additional damages to such Holder for each day after the Share Delivery Date or the Company Delivery Date, as applicable, that Trading Day of such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered Conversion Failure in an amount equal to one and one half percent (1.5%) 2.0% of the product of (I1) the sum of the number of shares of Common Stock not issued to the such Holder on or prior to the applicable Share Delivery Date or Company Delivery Date, as applicable, and to which such Holder is entitled as set forth in entitled, and (2) the applicable Conversion Notice or in any Company Conversion Notice and, in Weighted Average Price of the event the Company has failed to deliver a Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of on the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock applicable Share Delivery Date and (IIB) the Closing Sale Price of the Common Stock on the Share Delivery Date or Company Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A) within five (5) Trading Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery Date. In addition to the foregoing, if (i) on or after the applicable Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock relating to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company applicable Conversion Failure (a “Buy-In”), then the Company shall, within three two (32) Trading Days after the such Holder’s request and in the such Holder’s discretion, either (i) pay cash to the such Holder in an amount equal to the such Holder’s total purchase price (including brokerage commissions 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 issue and deliver such certificate (and to issue or credit such Holder’s balance account with DTC for such shares of Common Stock) Stock shall terminate, or (ii) promptly honor its obligation to deliver to the such Holder a certificate or certificates representing such shares of Common Stock or credit the Holder’s balance account with DTC for such shares of Common Stock, as applicable, and pay cash to the such 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 Stock, times (B) the Closing Sale Bid Price of the Common Stock on the applicable Conversion Date Date. Nothing herein shall limit a 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 Delivery DateCompany’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) upon conversion of the Series A Preferred Shares as required pursuant to the terms hereof, as applicablebut if the Holder exercises its Buy-In right, then such remedy shall be the sole and exclusive remedy for such Conversion Failure.

Cash Damages. If (x) (I) within three (3) Trading Days after by the Company’s receipt of the facsimile copy of a Conversion Notice or (II) on any Company Share Delivery Date, the Company shall fail to credit a Holder’s balance account with DTC or issue and deliver to a certificate to such Holder for (i) the number of shares of Common Stock to which such Holder is entitled hereunder upon such Holder’s conversion or of the Company’s conversion, as applicable, of Series C Preferred Shares Stock or (yii) within three (3) Trading Days of the Company’s receipt of a Preferred Stock Certificate the Company shall fail to issue and deliver a new Preferred Stock Certificate certificate representing the number of shares of Series C Preferred Shares Stock that are not being converted, in addition to all other available remedies to which such Holder is entitled pursuant to Section 2(d)(ii), then due to may pursue hereunder and under the uncertainty and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to the delay and not as a penaltyTransaction Documents, the Company shall pay additional damages to such Holder for on each day Business Day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.5%) 0.5% of the product of (IA) the sum of the number of shares of Common Stock not issued to the such Holder on or prior to by the Share Delivery Date or Company Delivery Date, as applicable, and to which such Holder is entitled as set forth (or in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed case of failure to deliver a new certificate representing shares of Series C Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Datenot being converted, the number of shares of Common Stock issuable upon conversion of the such shares of Series C Preferred Shares Stock that would be represented by such Preferred Stock Certificate certificate as of the Preferred Stock Share Delivery Date and Date), multiplied by (IIB) the Closing Sale Price of the Common Stock on the Share Delivery Date or Company Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A6(e) within five (5) Trading Business Days of the date incurred, then the Holder entitled to such payments shall have bear interest at the rate of 1.5% per month (pro rated for partial months) until such payments are made. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at any timelaw or in equity including, so long as the Company continues without limitation, a decree of specific performance and/or injunctive relief with respect to fail to make such payments, to require the Company, upon written notice, ’s failure to immediately issue, in lieu of such cash damages, the number of timely deliver shares of Common Stock equal to and/or a certificate representing the quotient remaining shares of (X) the aggregate amount Series C Preferred Stock upon conversion of the damages payments described herein divided by (Y) Series C Preferred Stock in accordance with the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicableterms hereof.

Cash Damages. If (x) (I) within three (3) Trading Days after If, on or before the Company’s receipt of the facsimile copy of a Conversion Notice or (II) on any Company Share Delivery Date, the Company shall fail to credit a Holder’s balance account with DTC or issue and deliver a certificate to such Holder for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s conversion, as applicable, of Preferred Shares or (y) within three (3) Trading Days of the Company’s receipt of a Preferred Stock Certificate the Company Borrower shall fail to issue and deliver a new Preferred Stock Certificate representing to the applicable Lender in accordance with Section 2(c)(ii) of this Annex I the number of Preferred Option Exchange Shares (free of any restrictive legend or stop transfer instructions) to which such Holder Lender is entitled pursuant to Section 2(d)(ii)upon its Exchange of any Exchange Amount, then due in addition to all other available remedies that such Lender may pursue hereunder, then the uncertainty and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to the delay and not as a penalty, the Company Borrower shall pay additional as partial liquidated damages to such Holder Lender for each 30-day period (prorated for any partial period) after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion Exchange is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.51%) of the product of (I) the sum of the number of shares of Common Stock not issued Exchange Amount. Notwithstanding anything to the Holder on or contrary contained herein (and in addition to the remedies set forth herein), to the extent that the Borrower shall fail to issue and deliver Option Exchange Shares to the applicable Lender prior to the applicable Share Delivery Date or Company Delivery Date, as applicable, and to which such Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion principal amount of the Preferred Notes to which such failure relates shall continue to bear interest until the date such Option Exchange Shares represented by such Preferred Stock Certificate as of are actually issued to the Preferred Stock Delivery Date and (II) the Closing Sale Price of the Common Stock on the Share Delivery Date or Company Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificateapplicable Lender. If the Company Borrower fails to pay the additional damages set forth in this Section 2(d)(v)(A2(c)(v)(A) of this Annex I or interest that accrues in accordance with the immediately preceding sentence or Section 2(c)(iv), in each case, within five (5) Trading Business Days of the date incurred, then the Holder Lender entitled to such payments shall have the right at any time, so long as the Company Borrower continues to fail to make such payments, to require the CompanyBorrower, upon written notice, to immediately issue, in lieu of such cash damagesdamages or interest payments described herein, the number of shares of Common Stock equal to the quotient of (X) the aggregate amount of the damages payments described herein in this Section 2(c)(v)(A) of this Annex I divided by (Y) the Conversion Common Stock Exchange Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery Exchange Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicable.

Cash Damages. If (x) (I) within three (3) Trading Business Days after the Company’s receipt of the facsimile copy of a Conversion Notice or (II) on any Company Delivery Date, the Company shall fail to credit a Holder’s balance account with DTC or issue and deliver a certificate to such Holder for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s conversion, as applicable, of Preferred Shares or (yII) within three (3) Trading Business Days of the Company’s receipt of a Preferred Stock Certificate the Company shall fail to issue and deliver a new Preferred Stock Certificate representing the number of Preferred Shares to which such Holder is entitled pursuant to Section 2(d)(ii3(c)(ii), then due in addition to all other available remedies which such Holder may pursue hereunder and under the uncertainty and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to the delay and not as a penaltySecurities Purchase Agreement, the Company shall pay additional damages in cash to such the Holder for on each day after such third Business Day that the Share Delivery Date or the Company Delivery Date, as applicable, that issuance of such conversion shares of Common Stock is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half percent (1.5%) % of the product of (IA) the sum of the number of shares of Common Stock not issued to the Holder on or prior to the Share Delivery Date or Company Delivery Date, as applicable, a timely basis and to which such the Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (IIB) the Closing Sale Price of the shares of Common Stock on the Share Delivery Date or Company Delivery Date, as applicable, in Trading Day immediately preceding the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If last possible date which the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A) within five (5) Trading Days of the date incurred, then the Holder entitled to could have issued such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery Datewithout violating Section 3(c)(ii). In addition to the foregoing, if within three (i3) on Trading Days after the Share Delivery Date or (ii) on any Company Delivery Date, Company’s receipt of the facsimile copy of a Conversion Notice the Company shall fail to issue and deliver a certificate to a the Holder and register such shares of Common Stock on the Company’s share register or credit such the Holder’s balance account with DTC for the number of shares of Common Stock to which such the Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred SharesShares hereunder, and if on or after such the third Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Business Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and out-of-pocket expensescommissions, 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 (and to issue such shares of Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such shares of Common Stock and pay cash to 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 Stock, times multiplied by (B) the Closing Sale Bid Price on the Conversion Date or the Company Delivery Date, as applicable.

Cash Damages. If (x) (I) within three (3) Trading Days after by the Company’s receipt of the facsimile copy of a Conversion Notice or (II) on any Company Share Delivery Date, the Company shall fail to issue the Conversion Shares and deliver a certificate to the Holder for, or credit a the Holder’s or its designee’s balance account with DTC or issue and deliver a certificate to such Holder for with, the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s conversion, as applicable, of Preferred Conversion Shares or (y) within three (3) Trading Days provided any of the Company’s receipt Unrestricted Conditions are satisfied, free of any restrictive legend) (a Preferred Stock Certificate the Company shall fail to issue and deliver a new Preferred Stock Certificate representing the number of Preferred Shares to which such Holder is entitled pursuant to Section 2(d)(ii“Delivery Failure”), then due then, in addition to all other available remedies that the uncertainty Holder may pursue hereunder and difficulty of estimating a Holder’s damages for such delay and as a reasonable estimate of such Holder’s actual loss due to under the delay and not as a penaltyFacility Agreement, the Company shall pay additional damages to such the Holder for each day after the Share Delivery Date or the Company Delivery Date, as applicable, that such conversion is not timely effected and/or each day after the Preferred Stock Delivery Date that such Preferred Stock Certificate is not delivered in an amount equal to one and one half two percent (1.52%) of the product of (I) the sum of the number of shares of Common Stock Conversion Shares not issued to the Holder or its designee on or prior to the Share Delivery Date or Company Delivery Date, as applicable, and to which such the Holder is entitled as set forth in the applicable Conversion Notice or in any Company Conversion Notice and, in the event the Company has failed to deliver a Preferred Stock Certificate to the Holder on or prior to the Preferred Stock Delivery Date, the number of shares of Common Stock issuable upon conversion of the Preferred Shares represented by such Preferred Stock Certificate as of the Preferred Stock Delivery Date and (II) the Closing Sale Volume Weighted Average Price of the Common Stock on the Share Delivery Date (such product is referred to herein as the “Share Product Amount”). Alternatively in lieu of the foregoing damages, subject to Section 2(c)(iii), at the written election of the Holder made in the Holder’s sole discretion, if, on or after the applicable Conversion Date, the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Holder of Conversion Shares that such Holder anticipated receiving from the Company (such purchased shares, “Buy-In Shares”), the Company shall be obligated to promptly pay to such Holder (in addition to all other available remedies that the Holder may otherwise have), 110% of the amount by which (A) such Holder’s total purchase price (including brokerage commissions, if any) for such Buy-In Shares exceeds (B) the net proceeds received by such Holder from the sale of the number of shares equal to up to the number of Conversion Shares such Holder was entitled to receive but had not received on the Share Delivery Date, as applicable, in the case of the failure to deliver Common Stock, or the Preferred Stock Delivery Date, in the case of failure to deliver a Preferred Stock Certificate. If the Company fails to pay the additional damages set forth in this Section 2(d)(v)(A2(c)(v)(A) within five (5) Trading Business Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of shares of Common Stock Shares equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice or in effect on the Company Delivery Date. In addition to the foregoing, if (i) on the Share Delivery Date or (ii) on any Company Delivery Date, the Company shall fail to issue and deliver a certificate to a Holder or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion or the Company’s Conversion, as applicable, of Preferred Shares, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and 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 deliver such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Stock and pay cash to 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 Stock, times (B) the Closing Sale Price on the Conversion Date or the Company Delivery Date, as applicableNotice.