Common use of Public Sales Clause in Contracts

Public Sales. If at any time any Stockholder proposes a Public Sale that is not also a Market Sale (a “Subject Public Sale”), the Company or such Stockholder, as the case may be, shall provide written notice (the “Offering Notice”) of the Subject Public Sale to the holders of Preferred Securities at least twenty (20) Business Days prior to the proposed effective date of the Subject Public Sale (the “Offering Date”), setting forth the anticipated terms and conditions of the Subject Public Sale. Upon receipt of an Offering Notice, each holder of Preferred Securities may elect to request that the Company redeem a portion of its Preferred Securities equal to the product of (i) the number of Preferred Securities then held by such Stockholder and (ii) a fraction (A) the numerator of which shall be the number of Common Securities to be sold by the Stockholder proposing such Public Sale (a “Public Sale Selling Stockholder”), and (B) the denominator of which shall be the total number of Common Securities held by the Public Sale Selling Stockholder and holders of Preferred Securities participating in such Sale as of the date of this Agreement (as adjusted for stock splits, combinations and the like and as reduced by any Sales previously made by the Public Sale Selling Stockholder and such holders of Preferred Securities). The redemption rights provided in this Section 3(c) must be exercised by such holder of Preferred Securities within ten (10) Business Days of the delivery of the Offering Notice by delivering a written notice (an “Offering Redemption Notice”) to the Company, with a copy to the Public Sale Selling Stockholder, stating the number and series of Preferred Securities requested to be redeemed pursuant thereto. The Preferred Securities requested to be redeemed shall be in the same proportion of Shares and Warrants as the Common Securities proposed to be sold in the Subject Public Sale. The redemption price per share in the case of (a) the Series A Securities shall be equal to one hundred (100) times the price per share of Common Stock received in the Public Sale by the Public Sale Selling Stockholder, before underwriter discounts or commissions (subject to equitable adjustment for stock splits, combinations and the like that are made with respect to the Series A Preferred Stock, where no corresponding adjustment is made to the Common Stock), (b) the Series C Preferred Stock shall be equal to (X) the Conversion Shares (as defined in the Series C Certificate of Designation) divided by the number of shares of Series C Preferred Stock issued and outstanding as of the Series C Original Issue Date (as defined in the Series C Certificate of Designation) times (Y) the price per share of Common Stock received in the Public Sale by the Public Sale Selling Stockholder, before underwriter discounts or commissions (subject to equitable adjustment for stock splits, combinations and the like that are made with respect to the Series C Preferred Stock, where no corresponding adjustment is made to the Common Stock) and (c) the Series E Securities shall be equal to Series E Conversion Rate, Series E-1 Conversion Rate or Series E-2 Conversion Rate, as applicable (as such terms are defined in the Series E Certificate of Designation) times the price per share of Common Stock received in the Public Sale by the Public Sale Selling Stockholder, before underwriter discounts or commissions (subject to equitable adjustment for stock splits, combinations and the like that are made with respect to the Series E Preferred Stock, Series E-1 Preferred Stock or Series E-2 Preferred Stock, where no corresponding adjustment is made to the Common Stock) (the respective “Offering Redemption Price”). Upon receiving an Offering Redemption Notice pursuant to this Section 3(c), the Company shall have two (2) Business Days to notify the holders of Preferred Securities and the Public Sale Selling Stockholder whether it will, at its sole option, redeem the Securities requested in the Offering Redemption Notice. If it agrees to redeem such Securities, it shall also within such time frame set a date for redemption (the respective “Redemption Date”), which date shall be no later than five (5) Business Days prior to the Offering Date. If the Company does not agree to redeem any Preferred Securities subject to an Offering Redemption, then the Selling Stockholder may elect to purchase such Preferred Securities at a price per share equal to the Offering Redemption Price. If (A) the Company does not agree to redeem any Preferred Securities subject to an Offering Redemption and (B) the Public Sale Selling Stockholder does not elect to purchase such Preferred Securities, or if after having so agreed, the Company fails to redeem or the Public Sale Selling Stockholder fails to purchase, any Preferred Securities subject to an Offering Redemption Notice pursuant to this Section 3(c), the Public Sale Selling Stockholder(s) may not consummate the Subject Public Sale. Any notice given by a Stockholder in which it elects to exercise its offering redemption rights provided in this Section 3(c) shall be irrevocable and shall constitute a binding agreement to submit for redemption or sell to the Public Sale Selling Stockholder such Preferred Securities as are included therein on the terms and conditions applicable to such redemption or sale.

Public Sales. If at any time any Selling Stockholder proposes a Public Sale that is not also a Market Sale (a “Subject Public Sale”), the Company or such the Selling Stockholder, as the case may be, shall provide written notice (the “Offering Notice”) of the Subject Public Sale to the holders of Preferred Securities UBS at least twenty (20) Business Days prior to the proposed effective date of the Subject Public Sale (the “Offering Date”), setting forth the anticipated terms and conditions of the Subject Public Sale. Upon receipt of an Offering Notice, each holder of Preferred Securities UBS may elect to request that the Company redeem a portion of its Preferred Securities equal to the product of (i) the number of Preferred Securities then held by such Stockholder UBS and (ii) a fraction (A) the numerator of which shall be the number of Common Securities to be sold by the Stockholder proposing such Public Sale (a “Public Sale Selling Stockholder”Stockholder(s), and (B) the denominator of which shall be the total number of Common Securities held by the Public Sale Selling Stockholder and holders of Preferred Securities Stockholder(s) participating in such Sale as of the date of this Agreement (as adjusted for stock splits, combinations and the like and as reduced by any Sales previously made by the Public Sale such Selling Stockholder and such holders of Preferred SecuritiesStockholder(s)). The redemption rights provided in this Section 3(c2(c) must be exercised by such holder of Preferred Securities UBS within ten (10) Business Days of the delivery of the Offering Notice by delivering a written notice (an “Offering Redemption Notice”) to the Company, with a copy to the Public Sale Selling Stockholder, stating the number and series of Preferred Securities requested to be redeemed pursuant thereto. The Preferred Securities requested to be redeemed shall be in the same proportion of Shares and Warrants as the Common Securities proposed to be sold in the Subject Public Sale. The redemption price per share in the case of (a) the Series A Securities shall be equal to one hundred (100) times the price per share of Common Stock received in the Public Sale by the Public Sale Selling StockholderStockholder(s), before underwriter discounts or commissions (subject to equitable adjustment for stock splits, combinations and the like that are made with respect to the Series A Preferred Stock, where no corresponding adjustment is made to the Common Stock), (b) the Series C Preferred Stock shall be equal to (X) the Conversion Shares (as defined in the Series C Certificate of Designation) divided by the number of shares of Series C Preferred Stock issued and outstanding as of the Series C Original Issue Date (as defined in the Series C Certificate of Designation) times (Y) the price per share of Common Stock received in the Public Sale by the Public Sale Selling Stockholder, before underwriter discounts or commissions (subject to equitable adjustment for stock splits, combinations and the like that are made with respect to the Series C Preferred Stock, where no corresponding adjustment is made to the Common Stock) and (c) the Series E Securities shall be equal to Series E Conversion Rate, Series E-1 Conversion Rate or Series E-2 Conversion Rate, as applicable (as such terms are defined in the Series E Certificate of Designation) times the price per share of Common Stock received in the Public Sale by the Public Sale Selling Stockholder, before underwriter discounts or commissions (subject to equitable adjustment for stock splits, combinations and the like that are made with respect to the Series E Preferred Stock, Series E-1 Preferred Stock or Series E-2 Preferred Stock, where no corresponding adjustment is made to the Common Stock) (the respective “Offering Redemption Price”). Upon receiving an Offering Redemption Notice pursuant to this Section 3(c2(c), the Company shall have two (2) Business Days to notify the holders of Preferred Securities UBS and the Public Sale Selling Stockholder whether it will, at its sole option, redeem the Securities requested in the Offering Redemption Notice. If it agrees to redeem such Securities, it shall also within such time frame set a date for redemption (the respective “Redemption Date”), which date shall be no later than five (5) Business Days prior to the Offering Date. If the Company does not agree to redeem any Preferred Securities subject to an Offering Redemption, then the Selling Stockholder may elect to purchase such Preferred Securities at a price per share equal to the Offering Redemption Price. If (A) the Company does not agree to redeem any Preferred Securities subject to an Offering Redemption and (B) the Public Sale Selling Stockholder does not elect to purchase such Preferred Securities, or if after having so agreed, the Company fails to redeem or the Public Sale Selling Stockholder fails to purchase, any Preferred Securities subject to an Offering Redemption Notice pursuant to this Section 3(c2(c), the Public Sale Selling Stockholder(s) may not consummate the Subject Public Sale. Any notice given by a Stockholder UBS in which it elects to exercise its offering redemption rights provided in this Section 3(c2(c) shall be irrevocable and shall constitute a binding agreement to submit for redemption or sell to the Public Sale Selling Stockholder such Preferred Securities as are included therein on the terms and conditions applicable to such redemption or sale.

Public Sales. If at any time any Selling Stockholder proposes a Public Sale that is not also a Market Sale (a “Subject Public Sale”), the Company or such the Selling Stockholder, as the case may be, shall provide written notice (the “Offering Notice”) of the Subject Public Sale to the holders of Preferred Securities UBS at least twenty (20) Business Days prior to the proposed effective date of the Subject Public Sale (the “Offering Date”), setting forth the anticipated terms and conditions of the Subject Public Sale. Upon receipt of an Offering Notice, each holder of Preferred Securities UBS may elect to request that the Company redeem a portion of its Preferred Securities equal to the product of (i) the number of Preferred Series A Securities then held by such Stockholder UBS and (ii) a fraction (A) the numerator of which shall be the number of Common Securities to be sold by the Stockholder proposing such Public Sale (a “Public Sale Selling Stockholder”Stockholder(s), and (B) the denominator of which shall be the total number of Common Securities held by the Public Sale Selling Stockholder and holders of Preferred Securities Stockholder(s) participating in such Sale as of the date of this Agreement (as adjusted for stock splits, combinations and the like and as reduced by any Sales previously made by the Public Sale such Selling Stockholder and such holders of Preferred SecuritiesStockholder(s)). The redemption rights provided in this Section 3(c) must be exercised by such holder of Preferred Securities UBS within ten (10) Business Days of the delivery of the Offering Notice by delivering a written notice (an “Offering Redemption Notice”) to the Company, with a copy to the Public Sale Selling Stockholder, stating the number and series of Preferred Series A Securities requested to be redeemed pursuant thereto. The Preferred Series A Securities requested to be redeemed shall be in the same proportion of Shares and Warrants as the Common Securities proposed to be sold in the Subject Public Sale. The redemption price per share in the case of (a) the Series A Securities shall be equal to one hundred (100) times the price per share of Common Stock received in the Public Sale by the Public Sale Selling StockholderStockholder(s), before underwriter discounts or commissions (subject to equitable adjustment for stock splits, combinations and the like that are made with respect to the Series A Preferred Stock, where no corresponding adjustment is made to the Common Stock), (b) the Series C Preferred Stock shall be equal to (X) the Conversion Shares (as defined in the Series C Certificate of Designation) divided by the number of shares of Series C Preferred Stock issued and outstanding as of the Series C Original Issue Date (as defined in the Series C Certificate of Designation) times (Y) the price per share of Common Stock received in the Public Sale by the Public Sale Selling Stockholder, before underwriter discounts or commissions (subject to equitable adjustment for stock splits, combinations and the like that are made with respect to the Series C Preferred Stock, where no corresponding adjustment is made to the Common Stock) and (c) the Series E Securities shall be equal to Series E Conversion Rate, Series E-1 Conversion Rate or Series E-2 Conversion Rate, as applicable (as such terms are defined in the Series E Certificate of Designation) times the price per share of Common Stock received in the Public Sale by the Public Sale Selling Stockholder, before underwriter discounts or commissions (subject to equitable adjustment for stock splits, combinations and the like that are made with respect to the Series E Preferred Stock, Series E-1 Preferred Stock or Series E-2 Preferred Stock, where no corresponding adjustment is made to the Common Stock) (the respective “Offering Redemption Price”). Upon receiving an Offering Redemption Notice pursuant to this Section 3(c), the Company shall have two (2) Business Days to notify the holders of Preferred Securities UBS and the Public Sale Selling Stockholder whether it will, at its sole option, redeem the Securities requested in the Offering Redemption Notice. If it agrees to redeem such Securities, it shall also within such time frame set a date for redemption (the respective “Redemption Date”), which date shall be no later than five (5) Business Days prior to the Offering Date. If the Company does not agree to redeem any Preferred Series A Securities subject to an Offering Redemption, then the Selling Stockholder may elect to purchase such Preferred Series A Securities at a price per share equal to the Offering Redemption Price. If (A) the Company does not agree to redeem any Preferred Series A Securities subject to an Offering Redemption and (B) the Public Sale Selling Stockholder does not elect to purchase such Preferred Series A Securities, or if after having so agreed, the Company fails to redeem or the Public Sale Selling Stockholder fails to purchase, any Preferred Series A Securities subject to an Offering Redemption Notice pursuant to this Section 3(c), the Public Sale Selling Stockholder(s) may not consummate the Subject Public Sale. Any notice given by a Stockholder UBS in which it elects to exercise its offering redemption rights provided in this Section 3(c) shall be irrevocable and shall constitute a binding agreement to submit for redemption or sell to the Public Sale Selling Stockholder such Preferred Series A Securities as are included therein on the terms and conditions applicable to such redemption or sale.

Public Sales. (a) If at any time any Stockholder proposes an Investor in good faith expects to transfer shares of Common Stock pursuant to Rule 144 or otherwise through a market transaction, including a registered public offering, other than a Registration Agreement Public Sale that is not also a Market Sale (a “Subject "Public Sale”Sales"), the Company or such Stockholder, Investor (hereinafter referred to as the case may be, "Public Selling Investor") shall provide written notice (the “Offering a "Public Notice”") of the Subject such Public Sale to the holders other Investor (the "Eligible Public Investor") as far in advance of Preferred Securities at least twenty such Public Sale as shall be reasonably practicable in light of the circumstances applicable to such Public Sale (20but in no event less than 3 business days), which Public Notice shall set forth (i) Business Days prior the number of shares of Common Stock the Public Selling Investor anticipates selling pursuant to such Public Sale, (ii) an invitation to the proposed effective date Eligible Public Investor to elect (if the Eligible Public Investor makes such an election, such Eligible Public Investor would become the "Public Tagging Investor" and, together with the Public Selling Investor, the "Public Sellers") to include in the Public Sale shares of Common Stock held by the Public Tagging Investor, (iii) the name, address and other appropriate contact information for the broker(s) (if any) with respect to such Public Sale selected by the Public Selling Investor (the "Broker") and (iv) the action or actions required (including the timing thereof) in connection with such Public Sale with respect to the Eligible Public Investor if it elects to participate in such Public Sale (including the delivery to the Broker of one or more stock certificates representing the shares of Common Stock of the Subject Eligible Public Investor to be sold in such Public Sale (the “Offering Date”"Certificates") and the delivery of such other certificates, instruments and documents as may be reasonably requested by the Broker), setting forth . If the anticipated terms and conditions of the Subject Public Sale. Upon receipt of an Offering NoticeTagging Investor elects to participate in such transfer, each holder Public Seller will be entitled to sell in the Public Sale a number of Preferred Securities may elect to request that the Company redeem a portion shares of its Preferred Securities Common Stock equal to the product of (i) the number of Preferred Securities then held by such Stockholder and (ii) a fraction (A) the numerator of which shall be quotient determined by dividing (1) the aggregate number of shares of Common Securities to be sold Stock owned by the Stockholder proposing such Public Sale Seller by (a “2) the aggregate number of shares of Common Stock owned by all of the Public Sale Selling Stockholder”)Sellers participating in such proposed transfer, and (B) the denominator of which shall be the total aggregate number of shares of Common Securities held by the Public Sale Selling Stockholder and holders of Preferred Securities participating in such Sale as of the date of this Agreement (as adjusted for stock splits, combinations and the like and as reduced by any Sales previously made by the Public Sale Selling Stockholder and such holders of Preferred Securities). The redemption rights provided in this Section 3(c) must be exercised by such holder of Preferred Securities within ten (10) Business Days of the delivery of the Offering Notice by delivering a written notice (an “Offering Redemption Notice”) to the Company, with a copy to the Public Sale Selling Stockholder, stating the number and series of Preferred Securities requested to be redeemed pursuant thereto. The Preferred Securities requested to be redeemed shall be in the same proportion of Shares and Warrants as the Common Securities proposed Stock to be sold in the Subject Public Sale. The redemption price per share in the case of (a) the Series A Securities shall be equal to one hundred (100) times the price per share of Common Stock received in the contemplated Public Sale by (such amount for each Public Seller, the "Public Sale Selling Stockholder, before underwriter discounts or commissions (subject to equitable adjustment for stock splits, combinations and the like that are made with respect to the Series A Preferred Stock, where no corresponding adjustment is made to the Common StockPercentage"), (b) the Series C Preferred Stock shall be equal to (X) the Conversion Shares (as defined in the Series C Certificate of Designation) divided by the number of shares of Series C Preferred Stock issued and outstanding as of the Series C Original Issue Date (as defined in the Series C Certificate of Designation) times (Y) the price per share of Common Stock received in the Public Sale by the Public Sale Selling Stockholder, before underwriter discounts or commissions (subject to equitable adjustment for stock splits, combinations and the like that are made with respect to the Series C Preferred Stock, where no corresponding adjustment is made to the Common Stock) and (c) the Series E Securities shall be equal to Series E Conversion Rate, Series E-1 Conversion Rate or Series E-2 Conversion Rate, as applicable (as such terms are defined in the Series E Certificate of Designation) times the price per share of Common Stock received in the Public Sale by the Public Sale Selling Stockholder, before underwriter discounts or commissions (subject to equitable adjustment for stock splits, combinations and the like that are made with respect to the Series E Preferred Stock, Series E-1 Preferred Stock or Series E-2 Preferred Stock, where no corresponding adjustment is made to the Common Stock) (the respective “Offering Redemption Price”). Upon receiving an Offering Redemption Notice pursuant to this Section 3(c), the Company shall have two (2) Business Days to notify the holders of Preferred Securities and the Public Sale Selling Stockholder whether it will, at its sole option, redeem the Securities requested in the Offering Redemption Notice. If it agrees to redeem such Securities, it shall also within such time frame set a date for redemption (the respective “Redemption Date”), which date shall be no later than five (5) Business Days prior to the Offering Date. If the Company does not agree to redeem any Preferred Securities subject to an Offering Redemption, then the Selling Stockholder may elect to purchase such Preferred Securities at a price per share equal to the Offering Redemption Price. If (A) the Company does not agree to redeem any Preferred Securities subject to an Offering Redemption and (B) the Public Sale Selling Stockholder does not elect to purchase such Preferred Securities, or if after having so agreed, the Company fails to redeem or the Public Sale Selling Stockholder fails to purchase, any Preferred Securities subject to an Offering Redemption Notice pursuant to this Section 3(c), the Public Sale Selling Stockholder(s) may not consummate the Subject Public Sale. Any notice given by a Stockholder in which it elects to exercise its offering redemption rights provided in this Section 3(c) shall be irrevocable and shall constitute a binding agreement to submit for redemption or sell to the Public Sale Selling Stockholder such Preferred Securities as are included therein on the terms and conditions applicable to such redemption or sale.

Public Sales. If at any time any Stockholder proposes a Public Sale that is not also a Market Sale (a “Subject Public Sale”), the Company or such Stockholder, as the case may be, shall provide written notice (the “Offering Notice”) of the Subject Public Sale to the holders of Preferred Securities at least twenty (20) Business Days prior to the proposed effective date of the Subject Public Sale (the “Offering Date”), setting forth the anticipated terms and conditions of the Subject Public Sale. Upon receipt of an Offering Notice, each holder of Preferred Securities may elect to request that the Company redeem a portion of its Preferred Securities equal to the product of (i) the number of Preferred Securities then held by such Stockholder and (ii) a fraction (A) the numerator of which shall be the number of Common Securities to be sold by the Stockholder proposing such Public Sale (a “Public Sale Selling Stockholder”), and (B) the denominator of which shall be the total number of Common Securities held by the Public Sale Selling Stockholder and holders of Preferred Securities participating in such Sale as of the date of this Agreement (as adjusted for stock splits, combinations and the like and as reduced by any Sales previously made by the Public Sale Selling Stockholder and such holders of Preferred Securities). The redemption rights provided in this Section 3(c) must be exercised by such holder of Preferred Securities within ten (10) Business Days of the delivery of the Offering Notice by delivering a written notice (an “Offering Redemption Notice”) to the Company, with a copy to the Public Sale Selling Stockholder, stating the number and series of Preferred Securities requested to be redeemed pursuant thereto. The Preferred Securities requested to be redeemed shall be in the same proportion of Shares and Warrants as the Common Securities proposed to be sold in the Subject Public Sale. The redemption price per share in the case of (a) the Series A Securities shall be equal to one hundred (100) times the price per share of Common Stock received in the Public Sale by the Public Sale Selling Stockholder, before underwriter discounts or commissions (subject to equitable adjustment for stock splits, combinations and the like that are made with respect to the Series A Preferred Stock, where no corresponding adjustment is made to the Common Stock), (b) the Series C Preferred Stock shall be equal to (X) the Conversion Shares (as defined in the Series C Certificate of Designation) divided by the number of shares of Series C Preferred Stock issued and outstanding as of the Series C Original Issue Date (as defined in the Series C Certificate of Designation) times (Y) the price per share of Common Stock received in the Public Sale by the Public Sale Selling Stockholder, before underwriter discounts or commissions (subject to equitable adjustment for stock splits, combinations and the like that are made with respect to the Series C Preferred Stock, where no corresponding adjustment is made to the Common Stock) and (c) the Series E D Securities shall be equal to Series E Conversion Rate, Series E-1 Conversion Rate or Series E-2 Conversion Rate, as applicable (as such terms are defined in the Series E D Certificate of Designation) times the price per share of Common Stock received in the Public Sale by the Public Sale Selling Stockholder, before underwriter discounts or commissions (subject to equitable adjustment for stock splits, combinations and the like that are made with respect to the Series E Preferred Stock, Series E-1 D Preferred Stock or Series E-2 D-1 Preferred Stock, where no corresponding adjustment is made to the Common Stock) (the respective “Offering Redemption Price”). Upon receiving an Offering Redemption Notice pursuant to this Section 3(c), the Company shall have two (2) Business Days to notify the holders of Preferred Securities and the Public Sale Selling Stockholder whether it will, at its sole option, redeem the Securities requested in the Offering Redemption Notice. If it agrees to redeem such Securities, it shall also within such time frame set a date for redemption (the respective “Redemption Date”), which date shall be no later than five (5) Business Days prior to the Offering Date. If the Company does not agree to redeem any Preferred Securities subject to an Offering Redemption, then the Selling Stockholder may elect to purchase such Preferred Securities at a price per share equal to the Offering Redemption Price. If (A) the Company does not agree to redeem any Preferred Securities subject to an Offering Redemption and (B) the Public Sale Selling Stockholder does not elect to purchase such Preferred Securities, or if after having so agreed, the Company fails to redeem or the Public Sale Selling Stockholder fails to purchase, any Preferred Securities subject to an Offering Redemption Notice pursuant to this Section 3(c), the Public Sale Selling Stockholder(s) may not consummate the Subject Public Sale. Any notice given by a Stockholder in which it elects to exercise its offering redemption rights provided in this Section 3(c) shall be irrevocable and shall constitute a binding agreement to submit for redemption or sell to the Public Sale Selling Stockholder such Preferred Securities as are included therein on the terms and conditions applicable to such redemption or sale.