Common use of Corporation’s Failure to Timely Convert Clause in Contracts

Corporation’s Failure to Timely Convert. If the Corporation shall fail, for any reason or for no reason, to issue to the Holder within ten (10) Trading Days after the Corporation’s receipt of a Conversion Notice (whether via facsimile or otherwise), a certificate for the number of shares of Common Stock to which the Holder is entitled and register such shares of Common Stock on the Corporation’s share register or to credit the Holder’s or its designee’s balance account with DTC for such number of shares of Common Stock to which the Holder is entitled upon the Holder’s conversion of any Conversion Amount (as the case may be) (a “Conversion Failure”), then, in addition to all other remedies available to the Holder, (1) the Corporation shall pay in cash to the Holder on each day after such tenth (10th) Trading Day that the issuance of such shares of Common Stock is not timely effected an amount equal to 0.5% of the product of (A) the sum of the number of shares of Common Stock not issued to the Holder on a timely basis and to which the Holder is entitled multiplied by (B) the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the last possible date which the Corporation could have issued such shares of Common Stock to the Holder without violating Section 4(c)(ii) and (2) the Holder, upon written notice to the Corporation, may void its Conversion Notice with respect to, and retain or have returned (as the case may be) any portion of this Note that has not been converted pursuant to such Conversion Notice, provided that the voiding of a Conversion Notice shall not affect the Corporation’s obligations to make any payments which have accrued prior to the date of such notice pursuant to this Section 4(d)(iii) or otherwise. The Holder agrees, however, that the maximum aggregate damages payable to a Holder hereunder for a Conversion Failure shall be 2% of the amount determined pursuant to the formula set forth in the immediately preceding sentence. In addition to the foregoing, if within ten (10) Trading Days after the Corporation’s receipt of a Conversion Notice (whether via facsimile or otherwise), the Corporation shall fail to issue and deliver a certificate to the Holder and register such shares of Common Stock on the Corporation’s share register or credit the Holder’s or its designee’s balance account with DTC for the number of shares of Common Stock to which the Holder is entitled upon the Holder’s conversion hereunder (as the case may be), and if on or after such tenth (10th) 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 shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Corporation, then, in addition to all other remedies available to the Holder, the Corporation shall, within ten (10) 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 other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (the “Buy-In Price”), at which point the Corporation’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 or credit the Holder’s balance account with DTC for the number of shares of Common Stock to which the Holder is entitled upon the Holder’s conversion hereunder (as the case may be) 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 multiplied by (B) the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the Conversion Date.

Corporation’s Failure to Timely Convert. If the Corporation shall fail, for any reason or for no reason, to issue to the a Holder within ten three (103) Trading Days after the Corporation’s receipt of a Conversion Notice (whether via facsimile or otherwise), a certificate for the number of shares of Common Stock to which the such Holder is entitled and register such shares of Common Stock on the Corporation’s share register or to credit the such Holder’s or its designee’s balance account with DTC for such number of shares of Common Stock to which the such Holder is entitled upon the such Holder’s conversion of any Conversion Amount shares of Series E Preferred Stock (as the case may be) (a “Conversion Failure”), then, in addition to all other remedies available to the such Holder, (1) the Corporation shall pay in cash to the Holder on each day after such tenth (10th) Trading Day that the issuance of such shares of Common Stock is not timely effected an amount equal to 0.5% of the product of (A) the sum of the number of shares of Common Stock not issued to the Holder on a timely basis and to which the Holder is entitled multiplied by (B) the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the last possible date which the Corporation could have issued such shares of Common Stock to the Holder without violating Section 4(c)(ii) and (2) the Holder, upon written notice to the Corporation, may void its Conversion Notice with respect to, and retain or have returned (as the case may be) any portion shares of this Note Series E Preferred Stock that has have not been converted pursuant to such Holder’s Conversion Notice, provided that the voiding of a Conversion Notice shall not affect the Corporation’s obligations to make any payments which have accrued prior to the date of such notice pursuant to the terms of this Section 4(d)(iii) Certificate of Designations or otherwise. The Holder agrees; provided that prior to (but not following) the Corporation’s 2011 annual stockholders meeting, however, that the maximum aggregate damages payable to a Holder hereunder for a Conversion Failure shall not be 2% deemed to have occurred if the Corporation has failed to convert shares of the amount determined pursuant Series E Preferred Stock to the formula set forth in extent, and only with respect to the immediately preceding sentenceshares of Series E Preferred Stock which cannot be converted as a result of, the Corporation does not have sufficient authorized and unissued shares of Common Stock. In addition to the foregoing, if within ten three (103) Trading Days after the Corporation’s receipt of a Conversion Notice (whether via facsimile or otherwise), the Corporation shall fail to issue and deliver a certificate to the such Holder and register such shares of Common Stock on the Corporation’s share register or credit the such Holder’s or its designee’s balance account with DTC for the number of shares of Common Stock to which the such Holder is entitled upon the such Holder’s conversion hereunder (as the case may be), and if on or after such tenth third (10th3rd) 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 shares of Common Stock issuable upon such conversion that the such Holder anticipated receiving from the Corporation, then, in addition to all other rights and remedies available to the such Holder, the Corporation shall, within ten three (103) Business 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 Corporation’s obligation to deliver such certificate or credit such balance account (as the case may be) (and to issue such shares of Common 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 such Holder’s balance account with DTC for the number of shares of Common Stock to which the such Holder is entitled upon the such Holder’s conversion hereunder (as the case may be) and pay cash to the such Holder in an amount equal to the excess (if any) of the Buy-In Price over less the product of (A) such number of shares of Common Stock multiplied by (B) the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the Conversion Date.

Corporation’s Failure to Timely Convert. If the Corporation shall fail, for any reason or for no reason, to issue satisfy the applicable Conversion Procedures on or prior to the Holder within ten (10) Trading Days after the Corporation’s receipt of a Conversion Notice (whether via facsimile or otherwise), a certificate for the number of shares of Common Stock to which the Holder is entitled and register such shares of Common Stock on the Corporation’s share register or to credit the Holder’s or its designee’s balance account with DTC for such number of shares of Common Stock to which the Holder is entitled upon the Holder’s conversion of any Conversion Amount (as the case may be) applicable Share Delivery Deadline (a “Conversion Failure”), then, in addition to all other remedies available to the Holdersuch holder, (1X) the Corporation shall pay in cash to the Holder such holder on each day after such tenth (10th) Trading Day the Share Delivery Deadline that the issuance of such shares of Common Stock Conversion Shares is not timely effected an amount equal to 0.51% of the product of (A) the sum of the number of shares of Common Stock Conversion Shares not issued to such holder (or its designee) on or prior to the Holder on a timely basis Share Delivery Deadline and to which the Holder such holder is entitled entitled, multiplied by (B) the Closing Sale Price any trading price of the Class A Common Stock selected by such holder in writing as in effect at any time during the period beginning on the Trading Day immediately preceding applicable Conversion Date and ending on the last possible date which the Corporation could have issued such shares of Common Stock to the Holder without violating Section 4(c)(ii) applicable Share Delivery Deadline, and (2Y) the Holdersuch holder, upon written notice to the Corporation, may void its Conversion Notice with respect toto all, and retain or have returned (as the case may be) any portion portion, of this Note such Preferred Shares that has not been converted pursuant to such Conversion Notice, ; provided that the voiding of a Conversion Notice shall not affect the Corporation’s obligations to make any payments which have accrued prior to the date of such notice pursuant to this Section 4(d)(iii8(c)(ii) or otherwise. The Holder agrees, however, that the maximum aggregate damages payable to a Holder hereunder for a Conversion Failure shall be 2% of the amount determined pursuant to the formula set forth in the immediately preceding sentence. In addition to the foregoing, if within ten (10) Trading Days after the Corporation’s receipt of there is a Conversion Notice (whether via facsimile or otherwise), the Corporation shall fail to issue and deliver a certificate to the Holder and register such shares of Common Stock on the Corporation’s share register or credit the Holder’s or its designee’s balance account with DTC for the number of shares of Common Stock to which the Holder is entitled upon the Holder’s conversion hereunder (as the case may be), Failure and if on or after the applicable Share Delivery Deadline such tenth (10th) Trading Day the Holder purchases holder acquires (in an open market transaction transaction, stock loan or otherwise) shares of Class A Common Stock corresponding to deliver in satisfaction all or any portion of a sale by the Holder number of shares of Common Stock Conversion Shares issuable upon such conversion that the Holder anticipated receiving such holder is entitled to receive from the CorporationCorporation but has not received from the Corporation in connection with such Conversion Failure (a “Buy-In”), then, in addition to all other remedies available to the Holdersuch holder, the Corporation shall, within ten (10) Business Days two business days after the Holderreceipt of such holder’s request and in the Holdersuch holder’s discretion, either either: (iI) pay cash to the Holder such holder in an amount equal to the Holdersuch holder’s total purchase price (including brokerage commissions commissions, stock loan costs and other reasonable, actual, documented out-of-pocket expenses, if any) for the shares of Class A Common Stock so purchased acquired (including, without limitation, by any other person in respect, or on behalf, of such holder) (the “Buy-In PriceCost”), at which point the Corporation’s obligation to (A) so register such Conversion Shares on the Corporation’s share register and deliver evidence of the same to the holder (or its designee) or credit to the balance account of such certificate holder (or its designee) with DTC for the number of Conversion Shares to which such holder is entitled upon such xxxxxx’s conversion hereunder (as the case may be) and (B) to issue such shares of Common Stock) Conversion Shares solely pursuant to the Conversion Notice with which the Conversion Failure is in connection shall terminate, or (iiII) promptly honor its obligation to so register such Conversion Shares on the Corporation’s share register and deliver evidence of the same to the Holder a certificate holder (or certificates representing such shares of Common Stock its designee) or credit to the Holder’s balance account of such holder (or its designee) with DTC for the number of shares of Common Stock Conversion Shares to which the Holder such holder is entitled upon the Holdersuch holder’s conversion hereunder (as the case may be) and pay cash to the Holder such holder in an amount equal to the excess (if any) of the Buy-In Price Cost over the product of (Ax) such number of shares of Class A Common Stock multiplied by (By) the lowest Closing Sale Price of the Class A Common Stock on the any Trading Day immediately preceding during the period commencing on the date of the applicable Conversion DateNotice and ending on the date of such issuance and payment under this clause (II) (the “Buy-In Top-Up Amount”). 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 decree of specific performance and/or injunctive relief with respect to the Corporation’s failure to timely satisfy the applicable Conversion Procedures upon the conversion of the Preferred Shares as required pursuant to the terms hereof.

Corporation’s Failure to Timely Convert. If the Corporation shall fail, for any reason or for no reason, on or prior to the applicable Share Delivery Deadline, to issue to the such Holder within ten (10) Trading Days after the Corporation’s receipt of a Conversion Notice (whether via facsimile or otherwise), a certificate for the number of shares of Common Stock Conversion Shares to which the such Holder is entitled and register such shares of Common Stock on the Corporation’s share register or to credit the such Holder’s or its designee’s balance account with DTC for such number of shares of Common Stock to which the such Holder is entitled upon the such Holder’s conversion of any Conversion Amount (as the case may be) (a “Conversion Failure”), then, in addition to all other remedies available to the such Holder, (1X) the Corporation shall pay in cash to the such Holder on each day after the Share Delivery Deadline and during such tenth (10th) Trading Day that the issuance of such shares of Common Stock is not timely effected Conversion Failure an amount equal to 0.51% of the product of (A) the sum of the number of shares of Common Stock not issued to the such Holder on a timely basis or prior to the Share Delivery Deadline and to which the such Holder is entitled entitled, multiplied by (B) the Closing Sale Price closing price of the Common Stock on the Trading Day immediately preceding applicable Conversion Date and ending on the last possible date which the Corporation could have issued such shares of Common Stock to the Holder without violating Section 4(c)(ii) applicable Share Delivery Deadline, and (2Y) the such Holder, upon written notice to the Corporation, may void its Conversion Notice with respect to, and retain or have returned (returned, as the case may be) , all, or any portion portion, of this Note such Preferred Shares that has not been converted pursuant to such Conversion Notice, ; provided that the voiding of a an Conversion Notice shall not affect the Corporation’s obligations to make any payments which have accrued prior to the date of such notice pursuant to this Section 4(d)(iii4(c)(ii) or otherwise. The Holder agrees, however, that the maximum aggregate damages payable to a Holder hereunder for a Conversion Failure shall be 2% of the amount determined pursuant to the formula set forth in the immediately preceding sentence. In addition to the foregoing, if within ten (10) Trading Days after on or prior to the Corporation’s receipt of a Conversion Notice (whether via facsimile or otherwise)Share Delivery Deadline the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, the Corporation shall fail to issue and deliver to such Holder (or its designee) a certificate to the Holder and register such shares of Common Stock on the Corporation’s share register or or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, the Transfer Agent shall fail to credit the balance account of such Holder or such Holder’s or its designee’s balance account designee with DTC for the number of shares of Common Stock to which the such Holder is entitled upon the such Holder’s conversion exercise hereunder or pursuant to the Corporation’s obligation pursuant to clause (as the case may be), II) below and if on or after such tenth (10th) Trading Day the Share Delivery Deadline 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 all or any portion of the Holder number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock, issuable upon such conversion that the such Holder anticipated receiving so is entitled to receive from the Corporation, then, in addition to all other remedies available to the such Holder, the Corporation shall, within ten three (103) Business Days after the receipt of such Holder’s request and in the such Holder’s discretion, either either: (iI) 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 (including by any other Person in respect, or on behalf, of such Holder) (the “Buy-In Price”), at which point the Corporation’s obligation to so issue and 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 or credit the such Holder’s balance account with DTC for the number of shares of Common Stock to which the such Holder is entitled upon such Holder’s conversion hereunder (as the case may be) (and to issue such shares of Common Stock) shall terminate, or (II) promptly honor its obligation to so issue and deliver to such Holder a certificate or certificates representing such shares of Common Stock 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 hereunder (as the case may be) 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 (Ax) such number of shares of Common Stock multiplied by (By) the lowest Closing Sale Price of the Common Stock on the any Trading Day immediately preceding during the period commencing on the date of the applicable Conversion DateNotice and ending on the date of such issuance and payment under this clause (ii).

Corporation’s Failure to Timely Convert. If the Corporation shall fail, for any reason or for no reason, on or prior to the applicable Share Delivery Deadline, to issue to the such Holder within ten (10) Trading Days after the Corporation’s receipt of a Conversion Notice (whether via facsimile or otherwise), a certificate for the number of shares of Common Stock to which the such Holder is entitled and register such shares of Common Stock on the Corporation’s share register or to credit the such Holder’s or its designee’s balance account with DTC for such number of shares of Common Stock to which the such Holder is entitled upon the such Holder’s conversion of any Conversion Amount (as the case may be) (a “Conversion Failure”), then, in addition to all other remedies available to the such Holder, (1X) the Corporation shall pay in cash to the such Holder on each day after the Share Delivery Deadline and during such tenth (10th) Trading Day that the issuance of such shares of Common Stock is not timely effected Conversion Failure an amount equal to 0.52% of the product of (A) the sum of the number of shares of Common Stock not issued to the such Holder on a timely basis or prior to the Share Delivery Deadline and to which the such Holder is entitled entitled, multiplied by (B) the Closing Sale Price closing price of the Common Stock on the Trading Day immediately preceding applicable Conversion Date and ending on the last possible date which the Corporation could have issued such shares of Common Stock to the Holder without violating Section 4(c)(ii) applicable Share Delivery Deadline, and (2Y) the such Holder, upon written notice to the Corporation, may void its Conversion Notice with respect to, and retain or have returned (returned, as the case may be) , all, or any portion portion, of this Note such Series B that has not been converted pursuant to such Conversion Notice, ; provided that the voiding of a Conversion Notice shall not affect the Corporation’s obligations to make any payments which have accrued prior to the date of such notice pursuant to this Section 4(d)(iii5(c)(ii) or otherwise. The Holder agrees, however, that the maximum aggregate damages payable to a Holder hereunder for a Conversion Failure shall be 2% of the amount determined pursuant to the formula set forth in the immediately preceding sentence. In addition to the foregoing, if within ten (10) Trading Days after on or prior to the Corporation’s receipt of a Conversion Notice (whether via facsimile or otherwise)Share Delivery Deadline the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, the Corporation shall fail to issue and deliver to such Holder (or its designee) a certificate to the Holder and register such shares of Common Stock on the Corporation’s share register or or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, the Transfer Agent shall fail to credit the balance account of such Holder or such Holder’s or its designee’s balance account designee with DTC for the number of shares of Common Stock to which the such Holder is entitled upon the such Holder’s conversion exercise hereunder or pursuant to the Corporation’s obligation pursuant to clause (as the case may be), II) below and if on or after such tenth (10th) Trading Day the Share Delivery Deadline 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 all or any portion of the Holder number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock, issuable upon such conversion that the such Holder anticipated receiving so is entitled to receive from the Corporation, then, in addition to all other remedies available to the such Holder, the Corporation shall, within ten three (103) Business Days after the receipt of such Holder’s request and in the such Holder’s discretion, either either: (iI) 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 (including by any other Person in respect, or on behalf, of such Holder) (the “Buy-In Price”), at which point the Corporation’s obligation to so issue and 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 or credit the such Holder’s balance account with DTC for the number of shares of Common Stock to which the such Holder is entitled upon such Holder’s conversion hereunder (as the case may be) (and to issue such shares of Common Stock) shall terminate, or (II) promptly honor its obligation to so issue and deliver to such Holder a certificate or certificates representing such shares of Common Stock 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 hereunder (as the case may be) 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 (Ax) such number of shares of Common Stock multiplied by (By) the lowest Closing Sale Price of the Common Stock on the any Trading Day immediately preceding during the period commencing on the date of the applicable Conversion DateNotice and ending on the date of such issuance and payment under this clause (ii).