Common use of Company’s Failure to Timely Exchange Clause in Contracts

Company’s Failure to Timely Exchange. If the Shareholder shall fail to deliver a certificate to the Holder or credit the Holder's balance account with DTC, as applicable, for such number of Common Shares to which the Holder is entitled upon a Note Exchange, Warrant Exchange and/or Payment Default Exchange on or prior to the date which is three (3) Trading Days after the Exchange Date (an "Exchange Failure"), and if on or after such Exchange Failure the Holder purchases (in an open market transaction or otherwise) Common Shares to deliver in satisfaction of a sale by the Holder of Exchange Shares issuable upon such exchange that the Holder anticipated receiving from the Shareholder (an "Exchange Shares Buy-In"), then within three (3) Trading Days after the Holder's request and in the Holder's discretion, either (x) the Company shall pay cash to the Holder in an amount equal to the Holder's total purchase price (including brokerage commissions and other reasonable out-of-pocket brokerage expenses, if any) for the Common Shares so purchased (the "Exchange Shares Buy-In Price"), at which point the Shareholder's obligation to deliver a certificate to the Holder (and to deliver such Exchange Shares) or credit the Holder's balance account with DTC for such Exchange Shares shall terminate, or (y) the Shareholder shall promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Exchange Shares or credit such Holder's balance account with DTC and the Company shall pay cash to the Holder in an amount equal to the excess (if any) of the Exchange Shares Buy-In Price over the product of (I) such number of Exchange Shares, times (II) the Closing Bid Price (as defined in the Note) on the Exchange Date.