Common use of Conversion of the Notes Clause in Contracts

Conversion of the Notes. (a) The Series A Notes shall be convertible, in whole or in part, at any time after the first anniversary of Closing Date, at the option of the holder of record thereof, into the number of fully paid and nonassessable shares of Common Stock equal to (x) the outstanding principal amount of such Series A Notes being converted divided by (y) the Conversion Price (as defined below). The Series B Notes shall be convertible, in whole or in part, at any time after the latest to occur of (i) the date that the Amendment becomes effective, (ii) the date that the Requisite Stockholder Approval is obtained and (iii) the first anniversary of the Closing Date, at the option of the holder of record thereof, into the number of fully paid and nonassessable shares of Common Stock equal to (x) the outstanding principal amount of such Series B Notes being converted divided by (y) the Conversion Price (as defined below). (b) Upon conversion of a Note, or any portion thereof, the holder of such Note shall receive a payment in cash equal to the accrued and unpaid interest on the Note or the portion so converted as of the date of conversion. No fractional shares of Common Stock shall be issued upon conversion of the Notes. All shares of Common Stock (including fractions thereof) issuable upon conversion of Notes by a holder thereof shall be aggregated for purposes of determining whether the conversion would result in the issuance of any fractional share. If, after the aforementioned aggregation, the conversion would result in the issuance of any fractional share, the Company shall, in lieu of issuing any fractional share, pay cash equal to the product of such fraction multiplied by the Market Price on the date of conversion. (c) As used herein, "Market Price" for any day means, with respect to the shares of Common Stock, the volume weighted average price as reported by Bloomberg (or if such information is not available from Bloomberg, from another nationally recognized independent pricing source) over the ten (10) Trading Days immediately prior to the date of calculation; provided, that, for the purposes of Section 9.04, "Market Price" shall mean the volume weighted average price over the five (5) Trading Days prior to the date of calculation and the five (5) Trading Days from and after the date of calculation. If there is no publicly traded market for the shares of Common Stock, pricing information will be obtained directly from broker/dealers and active market makers such as banks and securities firms. In instances where there is no readily available pricing information, the Board shall determine in good faith the fair value of the Common Stock, which determination shall be set forth in a certificate by the Secretary of the Company.

Conversion of the Notes. (a) The Series A Notes Notwithstanding the terms of the Notes, the Subscription Agreement and the Warrants and notwithstanding that conditions to the occurrence of the Conversion Date have not yet occurred, the Company and each Holder hereby agree that as of the Effective Date, any and all principal and accrued and unpaid interest due and owing by the Company to such Holder (the “Outstanding Balance”) under that certain Note shall be convertible, in whole or in part, at any time after the first anniversary of Closing Date, at the option of the holder of record thereof, converted into the number of fully paid and nonassessable shares of Common Stock equal to (xthe “Conversion Shares”) based upon the outstanding principal amount Outstanding Balance divided by $1.80. If conversion of such Series A Notes being converted divided by (y) Holder’s Note would create a fractional share or a right to acquire a fractional share, the Conversion Price (as defined below). The Series B Notes Company shall be convertible, in round to the nearest whole or in part, at any time after the latest to occur of (i) the date that the Amendment becomes effective, (ii) the date that the Requisite Stockholder Approval is obtained and (iii) the first anniversary of the Closing Date, at the option of the holder of record thereof, into the number of fully paid and nonassessable shares of Common Stock equal to (x) the outstanding principal amount of such Series B Notes being converted divided by (y) the Conversion Price (as defined below)number. (b) Upon conversion The Company hereby agrees to issue to and in the name of a Note, or any portion thereof, each Holder and cause such issuance to be recorded on the holder books and records of the Company the number of Conversion Shares set forth opposite the name of such Note shall receive a payment Holder on Schedule I hereto in cash equal to the accrued and unpaid interest on the Note or the portion so converted as of the date of conversion. No fractional shares of Common Stock shall be issued upon conversion of the Notes. All shares of Common Stock (including fractions thereof) issuable upon conversion of Notes by a holder thereof shall be aggregated consideration for purposes of determining whether the conversion would result in the issuance of any fractional share. If, after the aforementioned aggregation, the conversion would result in the issuance of any fractional share, the Company shall, in lieu of issuing any fractional share, pay cash equal to the product and cancellation of such fraction multiplied by the Market Price on the date of conversionHolder’s Note. (c) As used hereinUpon issuance of the Conversion Shares to each Holder, "Market Price" such Holder’s Note shall be deemed cancelled and extinguished, without need for surrender to the Company of the Note or any day meansother further action by any of the parties to this Agreement, and such Note shall thereupon be null and void and have no further force or effect. Each such Holder agrees that, as of the Effective Date, except for the right of such Holder to receive Amended and Restated Warrants and Payment Warrants pursuant to Section 3 of this Agreement, all rights and obligations of such Holder with respect to the shares Note or of Common Stock, the volume weighted average price as reported by Bloomberg (or if such information is not available from Bloomberg, from another nationally recognized independent pricing source) over the ten (10) Trading Days immediately prior Company with respect to the date of calculation; providedNote (including the obligations to (a) pay or cause to be paid all amounts due under the Note or (b) issue conversion shares upon the conversion date, that, for the purposes of Section 9.04, "Market Price" shall mean the volume weighted average price over the five (5) Trading Days prior to the date of calculation and the five (5) Trading Days from and after the date of calculation. If there is no publicly traded market for the shares of Common Stock, pricing information will be obtained directly from broker/dealers and active market makers such as banks and securities firms. In instances where there is no readily available pricing information, the Board shall determine in good faith the fair value of the Common Stock, which determination shall be set forth in a certificate by the Secretary Section 5.1 of the CompanyNote), the Subscription Agreement and any related agreement of such Holder, including, without limitation, any related document entered into with respect to such Note, shall terminate. The termination of the rights and obligations of such Holder with respect to the Note as set forth in this section shall not affect the rights and obligations of such Holder as provided in the Amended and Restated Warrants. Each such Holder agrees to execute such documents and other papers and take such further actions as may be reasonably required or desired to evidence cancellation of such Holder’s Note. The Effective Date shall constitute the Conversion Date under each Note, and each Note shall hereafter be cancelled on the books and records of the Company and shall represent the right to receive the number of Conversion Shares set forth opposite such Holder’s name on Schedule I hereto.