Common use of Failure of Registration Statement to Become Effective Clause in Contracts

Failure of Registration Statement to Become Effective. The Issuer and the Purchasers agree that the Purchasers will suffer damages if the Registration Statement is not declared effective on or prior to the Effectiveness Date. The Issuer and the Purchasers further agree that it would not be feasible to ascertain the extent of such damages with precision. Accordingly, if the Registration Statement is not declared effective on or prior to the Effectiveness Date, the Issuer shall pay as liquidated damages, and not as a penalty, 1% of (i) the Purchase Price multiplied by (ii) the number of Registrable Securities then held by such Purchaser (such product being the “Liquidated Damages Amount”) per 30-day period (which shall be pro rated for such periods less than thirty (30) days) until the Registration Statement is declared effective. The Liquidated Damages Amount will be paid in cash, unless the Issuer certifies that such cash payment would result in a breach under its credit facility or other documents evidencing indebtedness, then the Issuer may pay the Liquidated Damages Amount in kind in the form of additional Common Stock. The determination of the number of shares of Common Stock to be issued as the Liquidated Damages Amount shall be equal to the Liquidated Damages Amount divided by the lesser of (i) the Purchase Price per share; and (ii) the closing price of the Issuer’s Common Stock on the AMEX on the date on which the Liquidated Damages payment is due. In no event shall the Issuer be required to issue fractional shares pursuant to the terms of this Section 9.2 and all fractional shares shall be rounded down to the next lowest number of whole shares. The parties agree that the amounts set forth in this Section 9.2 represent a reasonable estimate on the part of the parties, as of the date of this Agreement, of the amount of damages that will be incurred by the Purchasers if the Registration Statement is not declared effective on or prior to the Effectiveness Date. Notwithstanding anything to the contrary set forth in this Agreement, in no event shall the total number of shares of Common Stock that the Issuer shall be required to issue pursuant to this Agreement exceed the maximum number of shares of Common Stock that the Issuer can issue without stockholder approval pursuant to any rule of the American Stock Exchange, or any other national exchange on which the Issuer’s Common Stock is then traded including, without limitation, Section 713 of the American Stock Exchange Listing Standards, Policies and Requirements, subject to equitable adjustments from time to time for stock-splits, stock dividends, combinations, capital reorganizations and similar events relating to the Common Stock occurring after the date of this Agreement.

Failure of Registration Statement to Become Effective. The Issuer Company and the Purchasers Holders agree that the Purchasers Holders will suffer damages if the Registration Statement is not declared effective on or prior to the Effectiveness ninetieth (90th) day following the Closing Date. The Issuer Company and the Purchasers Holders further agree that it would not be feasible to ascertain the extent of such damages with precision. Accordingly, if the Registration Statement is not declared effective on or prior to within one-hundred and twenty (120) days after the Effectiveness Closing Date, the Issuer Company shall pay in cash as liquidated damages, damages for such failure and not as a penalty, 1% of penalty to each Holder an amount equal to (i) two percent (2%) of such Holder’s pro rata share of the purchase price paid by all Holders for Preferred Stock purchased and then outstanding pursuant to the Purchase Price multiplied by Agreement and (ii) one percent (1%) of such Holder’s pro rata share of the number of Registrable Securities purchase price paid by all Holders for Preferred Stock purchased and then held by such Purchaser outstanding pursuant to the Purchase Agreement for each subsequent thirty (such product being the “Liquidated Damages Amount”30) per 30-day period (which shall be pro rated for such periods less than thirty (30) days) until either (x) the Registration Statement is declared effective. The Liquidated Damages Amount will be paid in cash, unless effective or (y) the Issuer certifies twelfth (12th) month after the Closing Date has ended; provided that such cash payment would result in a breach under its credit facility or other documents evidencing indebtedness, then the Issuer may pay the Liquidated Damages Amount in kind in the form of additional Common Stock. The determination aggregate amount so payable to each Holder pursuant to this Section 7(f) shall not exceed 10% of the number of purchase price paid for all shares of Common Preferred Stock held by such Holder. Payments to be issued as the Liquidated Damages Amount made pursuant to this Section 7(f) shall be equal to the Liquidated Damages Amount divided by the lesser of (i) the Purchase Price per share; due and (ii) the closing price of the Issuer’s Common Stock on the AMEX on the date on which the Liquidated Damages payment is due. In no event shall the Issuer be required to issue fractional shares pursuant to the terms of this Section 9.2 and all fractional shares shall be rounded down to the next lowest number of whole sharespayable immediately upon demand in immediately available cash funds. The parties agree that the amounts set forth in this Section 9.2 7(f) represent a reasonable estimate on the part of the parties, as of the date of this Agreement, of the amount of damages that will may be incurred by the Purchasers Holders if the Registration Statement is not declared effective on or prior to the Effectiveness ninetieth (90th) day following the Closing Date. Notwithstanding anything At any time that amounts continue to accrue pursuant to Section 7(e), such amounts shall be credited against any amounts that simultaneously accrue pursuant to this Section 7(f) such that the contrary set forth in this Agreement, Company shall in no event shall the total number of shares of Common Stock that the Issuer shall be required obligated to issue pursuant to make any payments under this Agreement exceed the maximum number of shares of Common Stock that the Issuer can issue without stockholder approval pursuant Section 7(f) with respect to any rule of period for which it is obligated to pay the American Stock ExchangePeriodic Amount under Section 7(e). Notwithstanding the foregoing, or the Company shall remain obligated to cause the Registration Statement to become effective, and the Holder shall have the right to take any other national exchange on which the Issuer’s Common Stock is then traded including, without limitation, Section 713 of the American Stock Exchange Listing Standards, Policies and Requirements, subject action necessary to equitable adjustments from time to time for stock-splits, stock dividends, combinations, capital reorganizations and similar events relating to the Common Stock occurring after the date of enforce this Agreementobligation.

Failure of Registration Statement to Become Effective. The Issuer Parent and the Purchasers agree that the Purchasers will suffer damages if the Registration Statement is not declared effective on or prior to the Effectiveness Date. The Issuer Parent and the Purchasers further agree that it would not be feasible to ascertain the extent of such damages with precision. Accordingly, if the Registration Statement is not declared effective on or prior to the Effectiveness Date, the Issuer Parent shall pay as liquidated damagesLiquidated Damages, and not as a penalty, 1% of (i) the Purchase Price multiplied by (ii) the number of Registrable Securities then Exchange Shares held by such Purchaser (such product being the “"Liquidated Damages Amount”") per thirty (30-) day period (which shall be pro rated for such periods less than thirty (30) days) until the Registration Statement is declared effective. The Liquidated Damages Amount will be paid in cash, unless the Issuer Parent certifies that such cash payment would result in a breach under its credit facility or other documents evidencing indebtedness, then the Issuer Parent may pay the Liquidated Damages Amount in kind in the form of additional Common Stock. The determination of the number of shares of Common Stock to be issued as the Liquidated Damages Amount shall be equal to the Liquidated Damages Amount divided by the lesser of (i) the Purchase Price per share; and (ii) the closing price of the Issuer’s Parent's Common Stock on the AMEX on the date on which the Liquidated Damages payment is due. In no event shall the Issuer Parent be required to issue fractional shares pursuant to the terms of this Section 9.2 7.2 and all fractional shares shall be rounded down to the next lowest number of whole shares. The parties agree that the amounts set forth in this Section 9.2 7.2 represent a reasonable estimate on the part of the parties, as of the date of this Agreement, of the amount of damages that will be incurred by the Purchasers if the Registration Statement is not declared effective on or prior to the Effectiveness Date. Notwithstanding anything to the contrary set forth in this Agreement, in no event shall the total number of shares of Common Stock Exchange Shares that the Issuer Parent shall be required to issue pursuant to this Agreement exceed the maximum number of shares of Common Stock that the Issuer Parent can issue without stockholder approval Stockholder Approval pursuant to any rule of the American Stock ExchangeAMEX, or any other national exchange on which the Issuer’s Parent's Common Stock is then traded including, without limitation, Section 713 of the American Stock Exchange AMEX Listing Standards, Policies and Requirements, subject to equitable adjustments from time to time for stock-splits, stock dividends, combinations, capital reorganizations and similar events relating to the Common Stock occurring after the date of this Agreement.

Failure of Registration Statement to Become Effective. The Issuer Company and the Purchasers Holders agree that the Purchasers Holders will suffer damages if the Registration Statement is not declared effective on or prior to the Effectiveness Effective Date. The Issuer Company and the Purchasers Holders further agree that it would not be feasible to ascertain the extent of such damages with precision. Accordingly, if the Registration Statement is not declared effective on or prior to the Effectiveness Effective Date, the Issuer Company shall pay in cash as liquidated damages, damages for such failure and not as a penalty, 1% of penalty to each Holder an amount equal to (i) one percent (1%) of such Holder's pro rata share of the purchase price paid by all Holders for Purchased Shares purchased pursuant to the Purchase Price multiplied by Agreement or the Over-Allotment Option and (ii) one percent (1%) of such Holder's pro rata share of the number of Registrable Securities then held purchase price paid by such Purchaser all Holders for Purchased Shares purchased pursuant to the Purchase Agreement or the Over-Allotment Option for each subsequent thirty (such product being the “Liquidated Damages Amount”30) per 30-day period (which shall be pro rated for such periods less than thirty (30) days) until either (x) the Registration Statement is declared effectiveeffective or (y) the twelfth (12th) month after the Closing Date has ended. The Liquidated Damages Amount will be paid in cash, unless the Issuer certifies that such cash payment would result in a breach under its credit facility or other documents evidencing indebtedness, then the Issuer may pay the Liquidated Damages Amount in kind in the form of additional Common Stock. The determination of the number of shares of Common Stock Payments to be issued as the Liquidated Damages Amount made pursuant to this Section 8(f) shall be equal to the Liquidated Damages Amount divided by the lesser of (i) the Purchase Price per share; due and (ii) the closing price of the Issuer’s Common Stock on the AMEX on the date on which the Liquidated Damages payment is due. In no event shall the Issuer be required to issue fractional shares pursuant to the terms of this Section 9.2 and all fractional shares shall be rounded down to the next lowest number of whole sharespayable immediately upon demand in immediately available cash funds. The parties agree that the amounts set forth in this Section 9.2 8(f) represent a reasonable estimate on the part of the parties, as of the date of this Agreement, of the amount of damages that will may be incurred by the Purchasers Holders if the Registration Statement is not declared effective on or prior to the Effectiveness Effective Date. Notwithstanding anything At any time that amounts continue to accrue pursuant to Section 8(e), such amounts shall be credited against any amounts that simultaneously accrue pursuant to this Section 8(f) such that the contrary set forth in this Agreement, Company shall in no event shall the total number of shares of Common Stock that the Issuer shall be required obligated to issue pursuant to make any payments under this Agreement exceed the maximum number of shares of Common Stock that the Issuer can issue without stockholder approval pursuant Section 8(f) with respect to any rule of period for which it is obligated to pay the American Stock ExchangePeriodic Amount under Section 8(e). Notwithstanding the foregoing, the Company shall remain obligated to cause the Registration Statement to become effective, and the Holders shall have the right to take any action necessary or any other national exchange on which the Issuer’s Common Stock is then traded including, without limitation, Section 713 of the American Stock Exchange Listing Standards, Policies and Requirements, subject desirable to equitable adjustments from time to time for stock-splits, stock dividends, combinations, capital reorganizations and similar events relating to the Common Stock occurring after the date of enforce this Agreementobligation.

Failure of Registration Statement to Become Effective. The Issuer and the Purchasers agree that the Purchasers will suffer damages if the Registration Statement is not declared effective on or prior to the Effectiveness one hundred twentieth (120th) day following the Closing Date. The Issuer and the Purchasers further agree that it would not be feasible to ascertain the extent of such damages with precision. Accordingly, if the Registration Statement is not declared effective on or prior to within one hundred twenty (120) days after the Effectiveness Closing Date, the Issuer shall pay as liquidated damages, damages in additional shares of the Common Stock for such failure and not as a penalty, 1% penalty to each Purchaser of a number of shares equal to two percent (i2%) the of such Purchaser's Purchase Price multiplied for Common Stock purchased at the Closing and then outstanding pursuant to the Agreement divided by the 10-day average closing price of the Common Stock prior to the date that the payment is due and two percent (ii2%) of such Purchaser's Purchase Price for Common Stock purchased and then outstanding pursuant to the number Agreement divided by the prior 10-day average closing price of Registrable Securities then held by such Purchaser the Common Stock prior to the date that the payment is due for each subsequent thirty (such product being the “Liquidated Damages Amount”30) per 30-day period (which shall be pro rated for such periods less than thirty (30) days) until the Registration Statement is declared effective. The Liquidated Damages Amount will be paid in cash, unless the Issuer certifies that such cash payment would result in a breach under its credit facility or other documents evidencing indebtedness, then the Issuer may pay the Liquidated Damages Amount in kind in the form of additional Common Stock. The determination of the number of shares of Common Stock to be issued as the Liquidated Damages Amount shall be equal to the Liquidated Damages Amount divided by the lesser of (i) the Purchase Price per share; and (ii) the closing price of the Issuer’s Common Stock on the AMEX on the date on which the Liquidated Damages payment is due. In no event shall the Issuer be required to issue fractional shares pursuant to the terms of this Section 9.2 8.2 and all fractional shares shall be rounded down to the next lowest number of whole shares. The parties agree that the amounts set forth in this Section 9.2 8.2 represent a reasonable estimate on the part of the parties, as of the date of this Agreement, of the amount of damages that will be incurred by the Purchasers if the Registration Statement is not declared effective on or prior to the Effectiveness one hundred twentieth (120th) day following the Closing Date. Notwithstanding anything to the contrary set forth in this Agreement, in no event shall the total number of shares of Common Stock that the Issuer shall be required to issue pursuant to this Agreement exceed the maximum number of shares of Common Stock that the Issuer can issue without stockholder approval pursuant to any rule of the American Stock Exchange, or any other national exchange on which the Issuer’s 's Common Stock is then traded including, without limitation, Section 713 of the American Stock Exchange Listing Standards, Policies and Requirements, subject to equitable adjustments from time to time for stock-splits, stock dividends, combinations, capital reorganizations and similar events relating to the Common Stock occurring after the date of this Agreement.

Failure of Registration Statement to Become Effective. The Issuer Company and the Purchasers Holders agree that the Purchasers Holders will suffer damages if the Registration Statement is not declared effective on or prior to the Effectiveness Date. The Issuer Company and the Purchasers Holders further agree that it would not be feasible to ascertain the extent of such damages with precision. Accordingly, if the Registration Statement is not declared effective on or prior to the Effectiveness Date, the Issuer Company shall pay in cash as liquidated damages, damages for such failure and not as a penalty, 1% of penalty to each Holder an amount equal to (i) two percent (2%) of such Holder's Note Amount upon the Purchase Price multiplied by occurrence of such failure to be declared effective (the "EFFECTIVENESS FIXED AMOUNT") and (ii) the number one and one-half percent (1.5%) of Registrable Securities then held by such Purchaser Holder's Note Amount for each subsequent thirty (such product being the “Liquidated Damages Amount”30) per 30-day period (which shall be pro rated for such periods less than thirty (30) days) until the Registration Statement is declared effectiveeffective (the "EFFECTIVENESS PERIODIC AMOUNT"). The Liquidated Damages Amount will be paid in cash, unless the Issuer certifies that such cash payment would result in a breach under its credit facility or other documents evidencing indebtedness, then the Issuer may pay the Liquidated Damages Amount in kind in the form of additional Common Stock. The determination of the number of shares of Common Stock Payments to be issued as the Liquidated Damages Amount made pursuant to this Section 7(f) shall be equal to the Liquidated Damages Amount divided by the lesser of (i) the Purchase Price per share; due and (ii) the closing price of the Issuer’s Common Stock on the AMEX on the date on which the Liquidated Damages payment is due. In no event shall the Issuer be required to issue fractional shares pursuant to the terms of this Section 9.2 and all fractional shares shall be rounded down to the next lowest number of whole sharespayable immediately upon demand in immediately available cash funds. The parties agree that the amounts Effectiveness Fixed Amount and the Effectiveness Periodic Amount set forth in this Section 9.2 7(f) represent a reasonable estimate on the part of the parties, as of the date of this Agreement, of the amount of damages that will may be incurred by the Purchasers Holders if the Registration Statement is not declared effective on or prior to the Effectiveness Date. Notwithstanding anything At any time that amounts continue to accrue pursuant to Section 7(e), such amounts shall be credited against any amounts that simultaneously accrue pursuant to this Section 7(f) such that the contrary set forth in this Agreement, Company shall in no event be obligated to make any payments under this Section 7(f) with respect to any period for which it is obligated to pay the Periodic Amount under Section 7(e). The Company shall the total number of shares of Common Stock that the Issuer shall not be required to issue pursuant pay the Periodic Amount or the Effectiveness Periodic Amount if the Company has previously paid any such amounts with respect to a period or periods that equal eight (8) months in the aggregate. Notwithstanding the foregoing, the Company shall remain obligated to cause the Registration Statement to become effective, and the Holders shall have the right to take any action necessary or desirable to enforce this Agreement exceed the maximum number of shares of Common Stock that the Issuer can issue without stockholder approval pursuant to any rule of the American Stock Exchange, or any other national exchange on which the Issuer’s Common Stock is then traded including, without limitation, Section 713 of the American Stock Exchange Listing Standards, Policies and Requirements, subject to equitable adjustments from time to time for stock-splits, stock dividends, combinations, capital reorganizations and similar events relating to the Common Stock occurring after the date of this Agreementobligation.

Failure of Registration Statement to Become Effective. The Issuer Parent and the Purchasers agree that the Purchasers will suffer damages if the Registration Statement is not declared effective on or prior to the Effectiveness Date. The Issuer Parent and the Purchasers further agree that it would not be feasible to ascertain the extent of such damages with precision. Accordingly, if the Registration Statement is not declared effective on or prior to the Effectiveness Date, the Issuer Parent shall pay as liquidated damagesLiquidated Damages, and not as a penalty, 1% of (i) the Purchase Price multiplied by (ii) the number of Registrable Securities then Exchange Shares held by such Purchaser (such product being the “Liquidated Damages Amount”) per thirty (30-) day period (which shall be pro rated for such periods less than thirty (30) days) until the Registration Statement is declared effective. The Liquidated Damages Amount will be paid in cash, unless the Issuer Parent certifies that such cash payment would result in a breach under its credit facility or other documents evidencing indebtedness, then the Issuer Parent may pay the Liquidated Damages Amount in kind in the form of additional Common Stock. The determination of the number of shares of Common Stock to be issued as the Liquidated Damages Amount shall be equal to the Liquidated Damages Amount divided by the lesser of (i) the Purchase Price per share; and (ii) the closing price of the IssuerParent’s Common Stock on the AMEX on the date on which the Liquidated Damages payment is due. In no event shall the Issuer Parent be required to issue fractional shares pursuant to the terms of this Section 9.2 7.2 and all fractional shares shall be rounded down to the next lowest number of whole shares. The parties agree that the amounts set forth in this Section 9.2 7.2 represent a reasonable estimate on the part of the parties, as of the date of this Agreement, of the amount of damages that will be incurred by the Purchasers if the Registration Statement is not declared effective on or prior to the Effectiveness Date. Notwithstanding anything to the contrary set forth in this Agreement, in no event shall the total number of shares of Common Stock Exchange Shares that the Issuer Parent shall be required to issue pursuant to this Agreement exceed the maximum number of shares of Common Stock that the Issuer Parent can issue without stockholder approval Stockholder Approval pursuant to any rule of the American Stock ExchangeAMEX, or any other national exchange on which the IssuerParent’s Common Stock is then traded including, without limitation, Section 713 of the American Stock Exchange AMEX Listing Standards, Policies and Requirements, subject to equitable adjustments from time to time for stock-splits, stock dividends, combinations, capital reorganizations and similar events relating to the Common Stock occurring after the date of this Agreement.