Common use of Cash Damages Clause in Contracts

Cash Damages. If by the Conversion Share Delivery Date, (A)(x)the Company shall fail to issue and deliver a certificate to the Holder of a Note being converted for, or, (y) if as required by Section 14.02(b) hereof the Transfer Agent shall fail to credit such Holder’s or its designee’s balance account with DTC with, the applicable number of Conversion Shares (free of any restrictive legend, provided, in the case of a conversion other than a Redemption Period Conversion (as to which the last sentence of Section 14.02(h)(ii) applies), that any Unrestricted Condition is satisfied) and (B) in each case of the preceding clause (A)(x) or (A)(y) above, if such failure continues for an additional three (3) Business Days, then, in addition to all other available remedies that such Holder may pursue hereunder, the Company shall pay additional damages to such Holder, in cash, for each 30-day period after the Conversion Share Delivery Date such conversion is not timely effected and/or each 30-day period after the date the Company is obligated to deliver a Physical Note hereunder such Note is not delivered in an amount equal to (prorated for any partial period) (x) in the case of a failure to deliver Conversion Shares, one percent (1.0%) of the product of (I) the number of Conversion Shares not issued and delivered to such Holder or its designee (free of any restrictive legend, provided, in the case of a conversion other than a Redemption Period Conversion (as to which the last sentence of Section 14.02(h)(ii) applies), that any Unrestricted Condition is satisfied) on or prior to the Conversion Share Delivery Date and to which such Holder is entitled and (II) the Volume Weighted Average Price of a share of Common Stock on the Conversion Share Delivery Date and (y) in the case of a failure to deliver a new Note, one percent (1.0%) of the outstanding balance of the new Note; provided that such Holder shall have no right to any such additional damages hereunder to the extent the failure of the Company to deliver such Conversion Shares is caused by such Xxxxxx’s failure to provide complete information required to be provided by such Holder to the Conversion Agent hereunder or the inaccuracy of any such information; provided, however, that the Conversion Agent, on behalf of the Company, shall notify a Holder as promptly as practicable after the Company becomes aware of the fact that information provided by such Holder to the Conversion Agent is inaccurate or incomplete and as promptly practicable so notifies the Conversion Agent. Alternatively, in lieu of the foregoing additional damages, subject to Section 14.02(d)), at the written election of such Holder made in such Holder’s sole discretion, if, on or after the applicable Conversion Date, such 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 (I) be obligated to promptly pay to such Holder (in addition to all other available remedies that such Holder may otherwise have), 105% 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 a number of shares equal to up to the number of Conversion Shares such Holder was entitled to receive but had not received on the Conversion Share Delivery Date and (II) at the option of such Holder, by notice to the Company made via email prior to receipt by such Holder of the Conversion Shares, either reinstate the portion of the Note to which such failure relates and equivalent number of Conversion Shares, as applicable, for which such conversion was not honored or deliver to such Holder the number of shares of Common Stock that would have been issued had the Company timely complied with its conversion and delivery obligations hereunder; provided that such Holder shall have no right to any such payment under clause (I) to the extent the failure of the Company to deliver such Conversion Shares is caused by such Holder’s failure to provide complete information required to be provided by such Holder to the Conversion Agent hereunder or the inaccuracy of any such information; provided, however, that the Conversion Agent, on behalf of the Company, shall notify a Holder as promptly as practicable after the Company becomes aware of the fact that information provided by such Holder to the Conversion Agent is inaccurate or incomplete and as promptly practicable so notifies the Conversion Agent. Nothing herein shall limit a Xxxxxx’s right to pursue any other remedies available to it hereunder, at law or in equity including a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver Conversion Shares upon conversion of a Note (in whole or in part) as required pursuant to the terms hereof. For the avoidance of doubt, in the event that the Company shall fail to timely pay any Cash Settlement Amount (or portion thereof), such unpaid amount shall accrue interest as a “Defaulted Amount” as provided in Section 2.03.

Cash Damages. If by the Conversion Share Delivery Date, (A)(x)the the Company shall fail to issue and deliver a certificate to the Holder of a Note being converted for, or, (y) if as required by the Section 14.02(b2(c)(ii) hereof the Transfer Agent shall fail to credit such the Holder’s or its designee’s balance account with DTC with, the applicable number of Conversion Shares (free of any restrictive legend, provided, in the case of a conversion other than a Redemption Period Conversion (as to which the last sentence of Section 14.02(h)(ii) applies), that provided any Unrestricted Condition is satisfied) and (B) in each case of the preceding clause (A)(x) or (A)(y) above, if such failure continues for an additional three (3) Business Days), then, in addition to all other available remedies that such the Holder may pursue hereunderhereunder and under the Facility Agreement, the Company shall pay additional damages to such Holder, in cash, the Holder for each 30-day period after the Conversion Share Delivery Date such conversion is not timely effected and/or each 30-day period after the date the Company is obligated to deliver a Physical Note hereunder Delivery Date such Note is not delivered in an amount equal to (prorated for any partial period) (x) in the case of a failure to deliver a certificate for the Conversion SharesShares or, if as required by the Section 2(c)(ii) hereof the Transfer Agent shall fail to credit the Holder’s or its designee’s balance account with DTC with, the applicable number of Conversion Shares (free of any restrictive legend, provided any Unrestricted Condition is satisfied), one percent (1.0%) of the product of (I) the number of Conversion Shares not issued and delivered to such Holder Amount or its designee (free of any restrictive legend, provided, in the case of a conversion other than a Redemption Period Conversion (as to which the last sentence of Section 14.02(h)(ii) applies), that any Unrestricted Condition is satisfied) on or prior to the Conversion Share Delivery Date and to which such Holder is entitled and (II) the Volume Weighted Average Price of a share of Common Stock on the Conversion Share Delivery Date and (y) in the case of a failure to deliver a new Note, one percent (1.0%) of the outstanding balance of the new Note; provided that such Holder shall have no right to any such additional damages hereunder to the extent the failure of the Company to deliver such Conversion Shares is caused by such Xxxxxx’s failure to provide complete information required to be provided by such Holder to the Conversion Agent hereunder or the inaccuracy of any such information; provided, however, that the Conversion Agent, on behalf of the Company, shall notify a Holder as promptly as practicable after the Company becomes aware of the fact that information provided by such Holder to the Conversion Agent is inaccurate or incomplete and as promptly practicable so notifies the Conversion Agent. Alternatively, Alternatively in lieu of the foregoing additional damages, subject to Section 14.02(d)2(c)(iii), at the written election of such the Holder made in such the Holder’s sole discretion, if, on or after the applicable Conversion Date, such the Holder purchases (in an open market transaction or otherwise) shares of Common Stock Shares to deliver in satisfaction of a sale by such the Holder of Conversion Shares (or Common Shares issuable upon conversion of Conversion Shares) that such Holder anticipated receiving from the Company (such purchased shares, “Buy-In Shares”), the Company shall (I) be obligated to promptly pay to such the Holder (in addition to all other available remedies that such the Holder may otherwise have), 105100% of the amount by which (A) such the Holder’s total purchase price (including brokerage commissions, if any) for such Buy-In Shares exceeds (B) the net proceeds received by such the Holder from the sale of a number of shares equal to up to the number of Conversion Shares (or Common Shares issuable upon conversion of the Conversion Shares, without giving effect to any limitations on conversion thereof) such Holder was entitled to receive but had not received on the Conversion Share Delivery Date and (II) at the option of such the Holder, by notice to the Company made via email prior to receipt by such the Holder of the Conversion Shares, either reinstate the portion of the this Note to which such failure relates and equivalent number of Conversion Shares, as applicable, Shares for which such conversion was not honored or deliver to such the Holder the number of shares of Common Stock Shares that would have been issued had the Company timely complied with its conversion and delivery obligations hereunder; provided that . If the Company fails to pay the additional damages set forth in this Section 2(c)(v)(A) within five (5) Business Days of the date incurred, then the Holder entitled to such Holder payments shall have no the right to at any such payment under clause (I) to the extent the failure of time, so long as the Company continues to deliver fail to make such Conversion Shares is caused by such Holder’s failure payments, to provide complete information required to be provided by such Holder to the Conversion Agent hereunder or the inaccuracy of any such information; provided, however, that the Conversion Agent, on behalf of require the Company, shall notify a Holder as promptly as practicable after upon written notice, to immediately issue, in lieu of such cash damages, the Company becomes aware number of Common Shares equal to the quotient of (X) the aggregate amount of the fact that information provided damages payments described herein divided by such Holder (Y) the Conversion Price applicable to the Conversion Agent is inaccurate or incomplete and as promptly practicable so notifies conversion to which the Conversion Agentadditional damages relate. Nothing herein shall limit a Xxxxxxthe Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver Conversion Common Shares upon conversion of a this Note (in whole or in part) as required pursuant to the terms hereof. For the avoidance of doubt, in the event that the Company shall fail to timely pay any Cash Settlement Amount (or portion thereof), such unpaid amount shall accrue interest as a “Defaulted Amount” as provided in Section 2.03.

Cash Damages. If by If, on or before the Conversion Share Delivery Date, (A)(x)the the Company shall fail to issue and deliver a certificate to the Holder of a Note being converted for, or, (y) if as required by Section 14.02(b) hereof for the Transfer Agent shall fail to credit such Holder’s or its designee’s balance account with DTC with, the applicable number of Conversion Shares (free of any restrictive legend, provided, in legend if the case of a conversion other than a Redemption Period Conversion Unrestricted Conditions (as defined below) are met) to which the last sentence Holder is entitled upon the Holder’s conversion of any Conversion Amount, or if the Company fails to issue and deliver a new Note representing the Principal to which such Holder is entitled on or before the Note Delivery Date pursuant to Section 14.02(h)(ii) applies2(c)(ii), that any Unrestricted Condition is satisfied) and (B) in each case of the preceding clause (A)(x) or (A)(y) above, if such failure continues for an additional three (3) Business Days, then, then in addition to all other available remedies that such the Holder may pursue hereunderhereunder and under the Facility Agreement, the Company shall pay additional damages to such Holder, in cash, the Holder for each 30-day period (prorated for any partial period) after the Conversion Share Delivery Date such conversion is not timely effected and/or each 30-day period after the date the Company is obligated to deliver a Physical Note hereunder Delivery Date such Note is not delivered in an amount equal to (prorated for any partial period) (x) in the case of a failure to deliver a certificate for the Conversion Shares, one percent (1.01%) of the product of (I) the number of Conversion Shares not issued and delivered to such Holder Amount or its designee (free of any restrictive legend, provided, in the case of a conversion other than a Redemption Period Conversion (as to which the last sentence of Section 14.02(h)(ii) applies), that any Unrestricted Condition is satisfied) on or prior to the Conversion Share Delivery Date and to which such Holder is entitled and (II) the Volume Weighted Average Price of a share of Common Stock on the Conversion Share Delivery Date and (y) in the case of a failure to deliver a new Note, one percent (1.01%) of the outstanding balance of the new Note; provided that . If the Company fails to pay the additional damages set forth in this Section 2(c)(v)(A) within five (5) Business Days of the date incurred, then the Holder entitled to such Holder payments shall have no the right to at any such additional damages hereunder to the extent the failure of time, so long as the Company continues to deliver fail to make such Conversion Shares is caused by such Xxxxxx’s failure payments, to provide complete information required to be provided by such Holder to the Conversion Agent hereunder or the inaccuracy of any such information; provided, however, that the Conversion Agent, on behalf of require the Company, shall notify a Holder as promptly as practicable after the Company becomes aware of the fact that information provided by such Holder upon written notice, to the Conversion Agent is inaccurate or incomplete and as promptly practicable so notifies the Conversion Agent. Alternativelyimmediately issue, in lieu of the foregoing additional damagessuch damages payments described herein, subject to Section 14.02(d)), at the written election of such Holder made in such Holder’s sole discretion, if, on or after the applicable Conversion Date, such 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 (I) be obligated to promptly pay to such Holder (in addition to all other available remedies that such Holder may otherwise have), 105% 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 a number of shares equal to up to the number of Shares equal to the quotient of (X) the aggregate amount of the damages payments described in this Section 2(c)(v)(A) divided by (Y) the lower of (i) the Conversion Shares Price in effect on such Conversion Date as specified by the Holder was entitled to receive but had not received in the Conversion Note and (ii) the Fair Market Value Price per Conversion Share on the Conversion Share Delivery Date and (II) at the option of such Holder, by notice to the Company made via email prior to receipt by such Holder date of the Conversion Shares, either reinstate the portion of the Note to which such failure relates and equivalent number of Conversion Shares, as applicable, for which such conversion was not honored or deliver to such Holder the number of shares of Common Stock that would have been issued had the Company timely complied with its conversion and delivery obligations hereunder; provided that such Holder shall have no right to any such payment under clause (I) to the extent the failure of the Company to deliver such Conversion Shares is caused by such Holder’s failure to provide complete information required to be provided by such Holder to the Conversion Agent hereunder or the inaccuracy of any such information; provided, however, that the Conversion Agent, on behalf of the Company, shall notify a Holder as promptly as practicable after the Company becomes aware of the fact that information provided by such Holder to the Conversion Agent is inaccurate or incomplete and as promptly practicable so notifies the Conversion Agent. Nothing herein shall limit a Xxxxxx’s right to pursue any other remedies available to it hereunder, at law or in equity including a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver Conversion Shares upon conversion of a Note (in whole or in part) as required pursuant to the terms hereof. For the avoidance of doubt, in the event that the Company shall fail to timely pay any Cash Settlement Amount (or portion thereof), such unpaid amount shall accrue interest as a “Defaulted Amount” as provided in Section 2.03Notice.

Cash Damages. If by within three (3) Business Days after the Company’s receipt of the facsimile or electronic mail copy of a Conversion Share Delivery Date, (A)(x)the Notice or deemed receipt of a Conversion Notice the Company shall fail to issue and deliver a certificate to the Holder of a Note being converted for, or, (y) if as required by Section 14.02(b) hereof or credit the Transfer Agent shall fail to credit such Holder’s or its designee’s balance account with DTC with, the applicable number of Conversion Shares (free of any restrictive legend, provided, in legend if the case of a conversion other than a Redemption Period Conversion Unrestricted Conditions (as defined below) are met) to which the last sentence Holder is entitled upon the Holder’s conversion of Section 14.02(h)(ii) applies)any Conversion Amount, that any Unrestricted Condition is satisfied) and (B) in each case of the preceding clause (A)(x) or (A)(y) above, if such failure continues for an additional three (3) Business Days, then, then in addition to all other available remedies that such the Holder may pursue hereunderhereunder and under the Facility Agreement, the Company shall pay additional damages to such Holder, in cash, the Holder for each 30-day period (prorated for any partial period) after the Conversion Share Delivery Date such conversion is not timely effected and/or each 30-day period after the date the Company is obligated to deliver a Physical Note hereunder such Note is not delivered in an amount equal to (prorated for any partial period) (x) in the case of a failure to deliver Conversion Shares, one and one-half percent (1.01.5%) of of, the product of (I) the number of Conversion Shares not issued and delivered to such the Holder or its designee (free of any restrictive legend, provided, in the case of a conversion other than a Redemption Period Conversion (as to which the last sentence of Section 14.02(h)(ii) applies), that any Unrestricted Condition is satisfied) on or prior to the Conversion Share Delivery Date and to which such the Holder is entitled and (II) the Volume Weighted Average Price of a share of Common Stock an Ordinary Share on the Conversion Share Delivery Date and (y) 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 case of a failure to deliver a new NoteHolder’s sole discretion, one percent (1.0%) of the outstanding balance of the new Note; provided that such Holder Company shall have no right to any such additional damages hereunder pay to the extent the failure of the Company to deliver such Conversion Shares is caused by such Xxxxxx’s failure to provide complete information required to be provided by such Holder to the Conversion Agent hereunder or the inaccuracy of any such information; provided, however, that the Conversion Agent, on behalf of the Company, shall notify a Holder as promptly as practicable after the Company becomes aware of the fact that information provided by such Holder to the Conversion Agent is inaccurate or incomplete and as promptly practicable so notifies the Conversion Agent. AlternativelyHolder, in lieu of the foregoing additional damages, subject damages referred to Section 14.02(d)), at in the written election of such Holder made in such Holder’s sole discretion, if, on or after the applicable Conversion Date, such Holder purchases preceding sentence (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 (I) be obligated to promptly pay to such Holder (but in addition to all other available remedies that such the Holder may otherwise havepursue hereunder and under the Facility Agreement), 105% of the amount by which (A) such the Holder’s total purchase price (including brokerage commissions, if any) for such Buy-In the Shares purchased to make delivery in satisfaction of a sale 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 such the Holder from the sale of a number 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(c)(v)(A) within five (5) Business Days of shares equal the date incurred, then the Holder entitled to up 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 Conversion Shares such Holder was entitled equal to receive but had not received on the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Share Delivery Price in effect on such Conversion Date and (II) at as specified by the option of such Holder, by notice to the Company made via email prior to receipt by such Holder of in the Conversion Shares, either reinstate the portion of the Note to which such failure relates and equivalent number of Conversion Shares, as applicable, for which such conversion was not honored or deliver to such Holder the number of shares of Common Stock that would have been issued had the Company timely complied with its conversion and delivery obligations hereunder; provided that such Holder shall have no right to any such payment under clause (I) to the extent the failure of the Company to deliver such Conversion Shares is caused by such Holder’s failure to provide complete information required to be provided by such Holder to the Conversion Agent hereunder or the inaccuracy of any such information; provided, however, that the Conversion Agent, on behalf of the Company, shall notify a Holder as promptly as practicable after the Company becomes aware of the fact that information provided by such Holder to the Conversion Agent is inaccurate or incomplete and as promptly practicable so notifies the Conversion Agent. Nothing herein shall limit a Xxxxxx’s right to pursue any other remedies available to it hereunder, at law or in equity including a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver Conversion Shares upon conversion of a Note (in whole or in part) as required pursuant to the terms hereof. For the avoidance of doubt, in the event that the Company shall fail to timely pay any Cash Settlement Amount (or portion thereof), such unpaid amount shall accrue interest as a “Defaulted Amount” as provided in Section 2.03Notice.