Common use of Default Shares Clause in Contracts

Default Shares. (a) If any Purchaser (a "Defaulting Purchaser") fails or refuses to purchase and pay for the number of Additional Shares agreed to be purchased by such Purchaser at any Additional Closing, the Company shall immediately give notice thereof to the Purchasers other than the Defaulting Purchaser (the "Non-Defaulting Purchasers"). (b) Wall▇▇-▇▇▇▇▇▇ ▇▇▇ll have the option, which must be exercised by written notification to the Company and the other Non-Defaulting Purchasers within ten (10) Business Days of receipt of the notice set forth in Section 2.3(a) hereof (the "Option Period"), to purchase all or any portion of the Additional Shares which the Defaulting Purchaser failed or refused to purchase (the "Default Shares"). If Wall▇▇-▇▇▇▇▇▇ ▇▇▇ls to notify the Company and the other Non-Defaulting Purchasers of its intent to exercise such option, or if such option is exercised by Wall▇▇-▇▇▇▇▇▇ ▇▇▇ fewer than all of the Default Shares, then the Company shall so notify all of the other Non-Defaulting Purchasers no later than two (2) Business Days after the expiration of the Option Period, and the remaining Non-Defaulting Purchasers shall have the option, which must be exercised by written notification to the Company and all other Non-Defaulting Purchasers within five (5) Business Days after the date of the aforesaid notice from the Company, to purchase the remaining Default Shares in the same proportions as their purchases of the Initial Shares, or in such proportions as such Non-Defaulting Purchasers may otherwise agree, all upon the price, terms and conditions set forth herein. (c) If the Non-Defaulting Purchasers (or any of them) elect to exercise their option to purchase some or all of the Default Shares, the issuance and purchase of such Default Shares shall take place at a closing (the "Default Shares Closing") to be held at the principal executive offices of the Company at 10:00 a.m., local time, within twenty (20) Business Days following the expiration of the Option Period (the "Default Shares Closing Date"). At each Default Shares Closing, the Company shall deliver to the Non-Defaulting Purchasers the Default Shares to be purchased at such Default Shares Closing against delivery by the Non-Defaulting Purchasers to the Company of the purchase price therefor, payable by wire transfer of immediately available funds to an account or accounts of the Company designated in writing by the Company. (d) In addition to and not in limitation of the right of the Non-Defaulting Purchasers to purchase Default Shares pursuant to this Section 2.3, each Non-Defaulting Purchaser shall have the option, which must be exercised by written notification to the Company, the Defaulting Purchaser and the other Non-Defaulting Purchasers not later than 90 days after expiration of the Option Period, to purchase from the Defaulting Purchaser a portion of the Shares, Investor Warrants and Investor Warrant Shares then owned or held by the Defaulting Purchaser (or, in the case of Investor Warrants and Investor Warrant Shares, by any transferee of the Defaulting Purchaser), such portion to be equal to a fraction, the numerator of which is the Purchaser Share Commitment of the applicable Non-Defaulting Purchaser and the denominator of which is the aggregate Purchaser Share Commitment of all Non-Defaulting Purchasers, or in such other proportions as the Non-Defaulting Purchasers so electing may otherwise agree, at a price equal to $2.50 times the number of shares being purchased by the Non-Defaulting Purchaser. If the Non- Defaulting Purchasers (or any of them) elect to exercise their option to purchase the Shares, Investor Warrants and Investor Warrant Shares of a Defaulting Purchaser or transferee pursuant to this Section 2.3(d), the sale and purchase of such Shares, Investor Warrants and Investor Warrant Shares shall take place at a closing to be held at the principal executive offices of the Company at 10:00 a.m., local time, on the tenth (10th) Business Day following expiration of the 90-day period referred to above in this Section 2.3(d). At each such closing, the Defaulting Purchaser shall deliver or cause to be delivered to the Non- Defaulting Purchasers who shall have exercised the purchase option provided for herein, the Shares, Investor Warrants and Investor Warrant Shares to be purchased by such Non-Defaulting Purchasers against delivery by such Non-Defaulting Purchasers of the purchase price therefor, payable by wire transfer of immediately available funds to an account or accounts designated in writing by the Defaulting Purchaser. (e) Notwithstanding anything to the contrary contained in this Agreement, following any default by a Defaulting Purchaser hereunder, such Defaulting Purchaser shall not be relieved of its obligation to purchase Additional Shares up to its full Purchaser Share Commitment; provided, however, that such Defaulting Purchaser shall have no right following such a default to require the Company to sell any Additional Shares to such Defaulting Purchaser. In the event an Additional Closing pursuant to this Article 2 shall be scheduled to take place following a default by a Defaulting Purchaser, the Company shall so notify the Non-Defaulting Purchasers, which notice shall specify the number of Shares that the Defaulting Purchaser is obligated to purchase at such Additional Closing. Upon receipt of any such notice, Wall▇▇- ▇▇▇▇▇▇ ▇▇▇ll have the option (which must be exercised by written notification to the Company and the other Non-Defaulting Purchasers within ten (10) Business Days of receipt of the notice referred to in this Section 2.3(e) hereof (the "Additional Option Period"), to purchase all or any portion of the Additional Shares to be purchased by the Defaulting Purchaser (the "Additional Default Shares"). If Wall▇▇-▇▇▇▇▇▇ ▇▇▇ls to notify the Company and the other Non-Defaulting Purchasers of its intent to exercise such option, or if such option is exercised by Wall▇▇-▇▇▇▇▇▇ ▇▇▇ fewer than all of the Additional Default Shares, then the Company shall so notify all of the other Non-Defaulting Purchasers no later than three (3) Business Days after the date of the aforesaid notice from the Company, and the remaining Non-Defaulting Purchasers shall have the option, which must be exercised by written notification to the Company and all other Non-Defaulting Purchasers within five (5) Business Days after the date of the aforesaid notice from the Company, to purchase the remaining Additional Default Shares in the same proportions as their purchases of the Initial Shares, or in such proportions as such Non-Defaulting Purchasers may otherwise agree, all upon the price, terms and conditions set forth herein.

Default Shares. (ai) If any Purchaser (a "Defaulting Purchaser") fails or refuses to purchase and pay for In the number of Additional Shares agreed event that the registration statement required to be purchased filed pursuant to Section 4(b) relating to the Shares and the Warrant Shares underlying the Warrants delivered at the First Closing shall not be declared effective by such Purchaser at any Additional the SEC within 90 days from the date of the First Closing, the Company shall immediately give notice thereof issue and deliver, free of charge and without cost, to the Purchasers other than (i) within 10 days of such ninetieth day, certificates representing a number of fully paid, non-assessable shares of Common Stock equal to the Defaulting Purchaser aggregate of 2% of the Shares and the Warrant Shares issued or issuable with respect to the First Closing (with additional shares issued pursuant to this Section 4(h) referred to as "DEFAULT SHARES") and (ii) within 10 days of the "Nonlast date of each additional 30-Defaulting Purchasers").day period in which such registration statement shall not have been declared effective by the SEC, additional certificates representing a number of fully paid, non-assessable shares of Common Stock equal to the aggregate of 2% of such Shares and Warrant Shares and any issued Default Shares; (bii) Wall▇▇-▇▇▇▇▇▇ ▇▇▇ll have In the option, which must event that the registration statement required to be exercised by written notification filed pursuant to Section 4(b) relating to the Company Shares and the other Non-Defaulting Purchasers Warrant Shares underlying the Warrants delivered at the Second Closing shall not be declared effective by the SEC within ten (10) Business Days of receipt of the notice set forth in Section 2.3(a) hereof (the "Option Period"), to purchase all or any portion of the Additional Shares which the Defaulting Purchaser failed or refused to purchase (the "Default Shares"). If Wall▇▇-▇▇▇▇▇▇ ▇▇▇ls to notify the Company and the other Non-Defaulting Purchasers of its intent to exercise such option, or if such option is exercised by Wall▇▇-▇▇▇▇▇▇ ▇▇▇ fewer than all of the Default Shares, then the Company shall so notify all of the other Non-Defaulting Purchasers no later than two (2) Business Days after the expiration of the Option Period, and the remaining Non-Defaulting Purchasers shall have the option, which must be exercised by written notification to the Company and all other Non-Defaulting Purchasers within five (5) Business Days after 90 days from the date of the aforesaid notice from the Company, to purchase the remaining Default Shares in the same proportions as their purchases of the Initial Shares, or in such proportions as such Non-Defaulting Purchasers may otherwise agree, all upon the price, terms and conditions set forth herein. (c) If the Non-Defaulting Purchasers (or any of them) elect to exercise their option to purchase some or all of the Default Shares, the issuance and purchase of such Default Shares shall take place at a closing (the "Default Shares Closing") to be held at the principal executive offices of the Company at 10:00 a.m., local time, within twenty (20) Business Days following the expiration of the Option Period (the "Default Shares Closing Date"). At each Default Shares Second Closing, the Company shall deliver issue and deliver, free of charge and without cost, to the NonPurchasers (i) within 10 days of such ninetieth day, certificates representing a number of fully paid, non- assessable shares of Common Stock equal to the aggregate of 2% of the Shares and the Warrant Shares issued or issuable with respect to the Second Closing and (ii) within 10 days of the last date of each additional 30-Defaulting Purchasers the Default Shares to be purchased at day period in which such Default Shares Closing against delivery registration statement shall not have been declared effective by the NonSEC, additional certificates representing a number of fully paid, non-Defaulting Purchasers assessable shares of Common Stock equal to the Company aggregate of the purchase price therefor, payable by wire transfer 2% of immediately available funds to an account or accounts such Shares and Warrant Shares and any issued Default Shares. The obligation of the Company designated to issue shares of Common Stock under this Section 4(h)(ii) is separate and distinct from its obligation under Section 4(h)(i) and shall be cumulative and in writing by the Companyaddition to its obligation under Section 4(h)(i). (diii) In addition to and not in limitation of the right of the Non-Defaulting Purchasers to purchase Any Default Shares shall be allocated pro rata among the Purchasers based on the number of Shares purchased by each under this Agreement. Any and all shares of Common Stock issued and delivered by the Company pursuant to this Section 2.3, each Non-Defaulting Purchaser 4(h) shall have the option, which must be exercised by written notification to the Company, the Defaulting Purchaser constitute "Registrable Securities," and the other Non-Defaulting Purchasers not later than 90 days after expiration Company shall be required to register them under the Securities Act in accordance with the provisions of the Option Period, to purchase from the Defaulting Purchaser a portion of the Shares, Investor Warrants and Investor Warrant Shares then owned or held by the Defaulting Purchaser this Agreement. (or, in the case of Investor Warrants and Investor Warrant Shares, by any transferee of the Defaulting Purchaser), such portion to be equal to a fraction, the numerator of which is the Purchaser Share Commitment of the applicable Non-Defaulting Purchaser and the denominator of which is the aggregate Purchaser Share Commitment of all Non-Defaulting Purchasers, or in such other proportions as the Non-Defaulting Purchasers so electing may otherwise agree, at a price equal to $2.50 times the number of shares being purchased by the Non-Defaulting Purchaser. If the Non- Defaulting Purchasers (or any of themiv) elect to exercise their option to purchase the Shares, Investor Warrants and Investor Warrant Shares of a Defaulting Purchaser or transferee pursuant to this Section 2.3(d), the sale and purchase of such Shares, Investor Warrants and Investor Warrant Shares shall take place at a closing to be held at the principal executive offices of the Company at 10:00 a.m., local time, on the tenth (10th) Business Day following expiration of the 90-day period referred to above The remedies provided for in this Section 2.3(d). At each such closing, the Defaulting Purchaser 4(h) shall deliver or cause be in addition to be delivered any other remedies available to the Non- Defaulting Purchasers who shall have exercised the purchase option provided for herein, the Shares, Investor Warrants and Investor Warrant Shares to be purchased by such Non-Defaulting Purchasers against delivery by such Non-Defaulting Purchasers of the purchase price therefor, payable by wire transfer of immediately available funds to an account or accounts designated in writing by the Defaulting Purchaser. (e) Notwithstanding anything to the contrary contained in under this Agreement, following any default by a Defaulting Purchaser hereunder, such Defaulting Purchaser shall not be relieved of its obligation to purchase Additional Shares up to its full Purchaser Share Commitment; provided, however, that such Defaulting Purchaser shall have no right following such a default to require the Company to sell any Additional Shares to such Defaulting Purchaser. In the event an Additional Closing pursuant to this Article 2 shall be scheduled to take place following a default by a Defaulting Purchaser, the Company shall so notify the Non-Defaulting Purchasers, which notice shall specify the number of Shares that the Defaulting Purchaser is obligated to purchase at such Additional Closing. Upon receipt of any such notice, Wall▇▇- ▇▇▇▇▇▇ ▇▇▇ll have the option (which must be exercised by written notification to the Company and the other Non-Defaulting Purchasers within ten (10) Business Days of receipt of the notice referred to in this Section 2.3(e) hereof (the "Additional Option Period"), to purchase all or any portion of the Additional Shares to be purchased by the Defaulting Purchaser (the "Additional Default Shares"). If Wall▇▇-▇▇▇▇▇▇ ▇▇▇ls to notify the Company and the other Non-Defaulting Purchasers of its intent to exercise such option, or if such option is exercised by Wall▇▇-▇▇▇▇▇▇ ▇▇▇ fewer than all of the Additional Default Shares, then the Company shall so notify all of the other Non-Defaulting Purchasers no later than three (3) Business Days after the date of the aforesaid notice from the Company, and the remaining Non-Defaulting Purchasers shall have the option, which must be exercised by written notification to the Company and all other Non-Defaulting Purchasers within five (5) Business Days after the date of the aforesaid notice from the Company, to purchase the remaining Additional Default Shares in the same proportions as their purchases of the Initial Shares, law or in such proportions as such Non-Defaulting Purchasers may otherwise agree, all upon the price, terms and conditions set forth hereinequity.