Common use of Failure to File Registration Statement Clause in Contracts

Failure to File Registration Statement. If a Registration Event occurs, then the Company will make payments to each Purchaser (a "Qualified Purchaser"), as partial liquidated damages for the minimum amount of damages to the Qualified Purchaser by reason thereof, and not as a penalty, at a rate equal to 1% of the Purchase Price per share of Registrable Securities then held by a Qualified Purchaser monthly, for each calendar month of the Registration Default Period (pro rated for any period less than 30 days); provided, however, if a Registration Event occurs (or is continuing) on a date more than one-year after the Qualified Purchaser acquired the Registrable Securities (and thus the one-year holding period under Rule 144(d) has elapsed), liquidated damages shall be paid only with respect to that portion of the Qualified Purchaser's Registrable Securities that cannot then be immediately resold in reliance on Rule 144. Each such payment shall be due and payable within five days after the end of each calendar month of the Registration Default Period until the termination of the Registration Default Period and within five days after such termination. Such payments shall be in partial compensation to the Qualified Purchaser, and shall not constitute the Qualified Purchaser's exclusive remedy for such events. The Registration Default Period shall terminate upon (i) the filing of the Registration Statement in the case of clause (a) of the definition of Registration Event, (ii) the SEC Effective Date in the case of clause (b) of the definition of Registration Event, (iii) the ability of the Qualified Purchaser to effect sales pursuant to the Registration Statement in the case of clause (c) of the definition of Registration Event, (iv) the listing or inclusion and/or trading of the Common Stock on an Approved Market, as the case may be, in the case of clause (d) of the definition of Registration Event, and (v) in the case of the events described in clauses (b) and (c) of the definition of Registration Event, the earlier termination of the Registration Default Period. The amounts payable as partial liquidated damages pursuant to this paragraph shall be payable in lawful money of the United States. Amounts payable as partial liquidated damages to each Qualified Purchaser hereunder with respect to each share of Registrable Securities shall cease when the Qualified Purchaser no longer holds such shares of Registrable Securities or such shares of Registrable Securities can be immediately sold by the Qualified Purchaser in reliance on Rule 144.

Failure to File Registration Statement. If a Registration Event occurs, then the Company will make payments to each Purchaser and SMH (a to the extent that it has exercised the Warrant)(a "Qualified QUALIFIED Purchaser"), as partial liquidated damages for the minimum amount of damages to the Qualified Purchaser by reason thereof, and not as a penalty, at a rate equal to one percent (1% %) of the Purchase Offering Price per share of Registrable Securities then Preferred Stock or, with respect to SMH, one tenth of one percent (0.1%) of the Offering Price for each share of Common Stock acquired upon exercise of the Warrant, held by a such Qualified Purchaser monthlyper month, for each calendar month of the Registration Default Period (pro rated for any period less than 30 days); provided, however, if a Registration Event occurs (or is continuing) on a date more than one-year after the Qualified Purchaser acquired the Registrable Securities (and thus the one-year holding period under Rule 144(d) has elapsed), liquidated damages shall be paid only with respect to that portion of the a Qualified Purchaser's Registrable Securities that cannot then be immediately resold in reliance on Rule 144. Each such payment shall be due and payable within five days after the end of each calendar month of the Registration Default Period until the termination of the Registration Default Period and within five days after such termination. Such payments shall be in partial compensation to the Qualified Purchaser, and shall not constitute the Qualified Purchaser's exclusive remedy for such events. The Registration Default Period shall terminate upon (i) the filing of the Registration Statement in the case of clause (a) of the definition of "Registration Event, (ii) the SEC Effective Date in the case of clause (b) of the definition of Registration Event, (iii) the ability of the Qualified Purchaser to effect sales pursuant to the Registration Statement in the case of clause (c) of the definition of Registration Event, (iv) the listing or inclusion and/or trading of the Common Stock on an Approved Market, as the case may be, in the case of clause (d) of the definition of Registration Event, and (v) in the case of the events described in clauses (b) and (c) of the definition of Registration Event, the earlier termination of the Registration Default Period. The amounts payable as partial liquidated damages pursuant to this paragraph shall be payable in lawful money of the United States. Amounts payable as partial liquidated damages to each Qualified Purchaser hereunder with respect to each share of Registrable Securities shall cease when the Qualified Purchaser no longer holds such shares of Registrable Securities or such shares of Registrable Securities can be immediately sold by the Qualified Purchaser in reliance on Rule 144.,"

Failure to File Registration Statement. If a The Company and the Investor agree that the Investor will suffer damages if the Registration Event occursStatement described in Section 13(a) (the “Registration Statement”) is not filed within 60 days following consummation of the Mergers referenced in the Term Sheet (the “Target Filing Date”). The Company and the Investor further agree that it would not be feasible to ascertain the extent of such damages with precision. Accordingly, then if the Investor gives notice of an intention to participate in the registration within the time frame specified in Section 13(a) above and the Registration Statement is not filed on or prior to the Target Filing Date, the Company will make payments to each Purchaser shall pay in cash or in shares of Common Stock (a "Qualified Purchaser"), at the Investor’s option) as partial liquidated damages for the minimum amount of damages to the Qualified Purchaser by reason thereof, such failure and not as a penalty, at a rate penalty to the Investor an amount equal to 1% two percent (2%) of the purchase price the Investor paid for the Units purchased by such Investor (the ”Purchase Price per share of Registrable Securities then held by a Qualified Purchaser monthly, Price”) for each calendar month of 30-day period following the Target Filing Date until the Registration Default Period (Statement has been filed with the Commission, which shall be pro rated for any period such periods less than 30 daysdays (the “Late Filing Damages”); provided, however, if a Registration Event occurs (or is continuing. Payments to be made to the Investor pursuant to this Section 13(f) on a date more than one-year after the Qualified Purchaser acquired the Registrable Securities (and thus the one-year holding period under Rule 144(d) has elapsed), liquidated damages shall be paid only with respect to that portion of the Qualified Purchaser's Registrable Securities that cannot then be immediately resold in reliance on Rule 144. Each such payment shall be due and payable within five (5) business days after of any written demand therefor by the end of each calendar month Investor, but in no event more than once during any 30-day period. The parties agree that the Late Filing Damages represent a reasonable estimate on the part of the Registration Default Period until the termination parties, as of the date of this Agreement, of the amount of damages that may be incurred by the Investor if the Registration Default Period and within five days after Statement is not filed on or prior to the Target Filing Date. If Investor elects to be paid the Late Filing Damages in shares of Common Stock, such termination. Such payments shares of Common Stock shall be in partial compensation valued at the average closing price of a share of Common Stock on the applicable trading market for the Common Stock for the 5-trading-day period immediately preceding the date of demand of such Late Filing Damages. Notwithstanding anything to the Qualified Purchasercontrary contained in this Agreement, and shall not constitute the Qualified Purchaser's exclusive remedy for such events. The Registration Default Period shall terminate upon (i) nothing herein shall entitle the filing of Investor to any fees or damages in the event the Company is unable to cause the Registration Statement in to be declared effective by the case of clause (a) of the definition of Registration EventCommission or any applicable state securities law authority, and (ii) the SEC Effective Date in the case of clause (b) of the definition of Registration Event, (iii) the ability of the Qualified Purchaser Investor shall not be entitled to effect sales pursuant to the Registration Statement in the case of clause (c) of the definition of Registration Event, (iv) the listing or inclusion and/or trading of the Common Stock on an Approved Market, as the case may be, in the case of clause (d) of the definition of Registration Event, and (v) in the case of the events described in clauses (b) and (c) of the definition of Registration Event, the earlier termination of the Registration Default Period. The amounts payable as partial liquidated damages pursuant to this paragraph shall be payable in lawful money of the United States. Amounts payable as partial liquidated damages to each Qualified Purchaser hereunder receive any Late Filing Damages with respect to each share of Registrable Securities shall cease when any Shares for which the Qualified Purchaser no longer holds such shares of Registrable Securities or such shares of Registrable Securities can be immediately sold by the Qualified Purchaser in reliance on Rule 144Investor gives an Exclusion Request.

Failure to File Registration Statement. If a Registration Event occurs, then the Company will make payments to each Purchaser and SMH (a to the extent that it has exercised the Agent's Warrant)(a "Qualified PurchaserQUALIFIED PURCHASER"), as partial liquidated damages for the minimum amount of damages to the Qualified Purchaser by reason thereof, and not as a penalty, at a rate equal to 1% of the Purchase Price $0.0365 per share of Registrable Securities Common Stock that may then held be acquired by a such Qualified Purchaser monthlyupon conversion of the principal amount of the Notes and Common Stock that already has been acquired by such Qualified Purchaser upon exercise of the Warrants or the Agent's Warrants or upon conversion of principal or accrued interest on the Notes (the "DEFAULT SHARES"), per month, for each calendar month of the Registration Default Period (pro rated for any period less than 30 days); provided, however, if a Registration Event occurs (or is continuing) on a date more than one-year after the Qualified Purchaser acquired the Registrable Securities (and thus the one-year holding period under Rule 144(d) has elapsed), liquidated damages shall be paid only with respect to that portion of the a Qualified Purchaser's Registrable Securities Default Shares that cannot then be immediately resold in reliance on Rule 144. Each such payment shall be due and payable within five days after the end of each calendar month of the Registration Default Period until the termination of the Registration Default Period and within five days after such termination. Such payments shall be in partial compensation to the Qualified Purchaser, and shall not constitute the Qualified Purchaser's exclusive remedy for such events. The Registration Default Period shall terminate upon (i) the filing of the Registration Statement in the case of clause (a) of the definition of "Registration Event, (ii) the SEC Effective Date in the case of clause (b) of the definition of Registration Event, (iii) the ability of the Qualified Purchaser to effect sales pursuant to the Registration Statement in the case of clause (c) of the definition of Registration Event, (iv) the listing or inclusion and/or trading of the Common Stock on an Approved Market, as the case may be, in the case of clause (d) of the definition of Registration Event, and (v) in the case of the events described in clauses (b) and (c) of the definition of Registration Event, the earlier termination of the Registration Default Period. The amounts payable as partial liquidated damages pursuant to this paragraph shall be payable in lawful money of the United States. Amounts payable as partial liquidated damages to each Qualified Purchaser hereunder with respect to each share of Registrable Securities shall cease when the Qualified Purchaser no longer holds such shares of Registrable Securities or such shares of Registrable Securities can be immediately sold by the Qualified Purchaser in reliance on Rule 144.,"

Failure to File Registration Statement. If a Registration Event occurs, then the Company will make payments to each Purchaser and SMH (a to the extent that it has exercised the Warrant)(a "Qualified PurchaserQUALIFIED PURCHASER"), as partial liquidated damages for the minimum amount of damages to the Qualified Purchaser by reason thereof, and not as a penalty, at a rate equal to 1% one and one-half percent (1.5%) of the Purchase Offering Price per Unit or, with respect to SMH, one-tenth of one and one-half percent (0.15%) of the Offering Price for each share of Registrable Securities then Common Stock acquired upon exercise of the Warrant, held by a such Qualified Purchaser monthlyper month, for each calendar month of the Registration Default Period (pro rated for any period less than 30 days); provided, however, if a Registration Event occurs (or is continuing) on a date more than one-year after the Qualified Purchaser acquired the Registrable Securities (and thus the one-year holding period under Rule 144(d) has elapsed), liquidated damages shall be paid only with respect to that portion of the Qualified Purchaser's Registrable Securities that cannot then be immediately resold in reliance on Rule 144. Each such payment shall be due and payable within five days after the end of each calendar month of the Registration Default Period until the termination of the Registration Default Period and within five days after such termination. Such payments shall be in partial compensation to the Qualified Purchaser, and shall not constitute the Qualified Purchaser's exclusive remedy for such events. The Registration Default Period shall terminate upon (i) the filing of the Registration Statement SEC Effective Date in the case of clause (a) of the definition of "Registration Event, ," (ii) the SEC Effective Date in the case of clause (b) of the definition of Registration Event, (iii) the ability of the Qualified Purchaser to effect sales pursuant to the Registration Statement in the case of clause (c) of the definition of "Registration Event, ," and (iviii) the listing or inclusion and/or trading of the Common Stock on an Approved Market, as the case may be, in the case of clause (d) of the definition of Registration Event, and (v) in the case of the events described in clauses (b) and (c) of the definition of "Registration Event, the earlier termination of the Registration Default Period. ." The amounts payable as partial liquidated damages pursuant to this paragraph shall be payable in lawful money of the United States. Amounts payable as partial liquidated damages to each Qualified Purchaser hereunder with respect to each share of Registrable Securities shall cease when the Qualified Purchaser no longer holds such shares share of Registrable Securities or such shares of Securities. SMH acknowledges and agrees that the partial liquidated damages provided for in this Section 3(f) shall apply to Registrable Securities can be immediately sold by of SMH only to the Qualified Purchaser in reliance on Rule 144extent SMH has exercised the Warrant.

Failure to File Registration Statement. If a Registration Event occurs, then the Company will make payments to each Purchaser and the Placement Agent (to the extent it has exercised the Placement Agent Warrant) (a "Qualified Purchaser"), as partial liquidated damages for the minimum amount of damages to the Qualified Purchaser by reason thereof, and not as a penalty, at a rate equal to 1% one percent of the Purchase Offering Price per share of Registrable Securities then Common Stock held by a such Qualified Purchaser monthlyper month, for each calendar month of the Registration Default Period (pro rated for any period less than 30 days); provided, however, if a Registration Event occurs (or is continuing) on a date more than one-year after the Qualified Purchaser acquired the Registrable Securities (and thus the one-year holding period under Rule 144(d) has elapsed), liquidated damages shall be paid only with respect to that portion of the a Qualified Purchaser's Registrable Securities that cannot then be immediately resold in reliance on Rule 144. Each such payment shall be due and payable within five days after the end of each calendar month of the Registration Default Period until the termination of the Registration Default Period and within five days after such termination. Such payments shall be in partial compensation to the Qualified Purchaser, and shall not constitute the Qualified Purchaser's exclusive remedy for such events. The Registration Default Period shall terminate upon (i) the filing of the Registration Statement in the case of clause (a) of the definition of "Registration Event, (ii) the SEC Effective Date in the case of clause (b) of the definition of Registration Event, (iii) the ability of the Qualified Purchaser to effect sales pursuant to the Registration Statement in the case of clause (c) of the definition of Registration Event, (iv) the listing or inclusion and/or trading of the Common Stock on an Approved Market, as the case may be, in the case of clause (d) of the definition of Registration Event, and (v) in the case of the events described in clauses (b) and (c) of the definition of Registration Event, the earlier termination of the Registration Default Period. The amounts payable as partial liquidated damages pursuant to this paragraph shall be payable in lawful money of the United States. Amounts payable as partial liquidated damages to each Qualified Purchaser hereunder with respect to each share of Registrable Securities shall cease when the Qualified Purchaser no longer holds such shares of Registrable Securities or such shares of Registrable Securities can be immediately sold by the Qualified Purchaser in reliance on Rule 144.,"

Failure to File Registration Statement. If a Registration Event occurs, then the Company will make payments to each Purchaser (a "Qualified Purchaser"), as partial liquidated damages for the minimum amount of damages to the Qualified Purchaser by reason thereof, and not as a penalty, at a rate equal to one percent (1% %) of the Purchase Offering Price per share of Registrable Securities then Preferred Stock or, one tenth of one percent (0.1%) of the Offering Price for each share of Common Stock acquired upon exercise of a Warrant, held by a Qualified such Purchaser monthlyper month, for each calendar month of the Registration Default Period (pro rated for any period less than 30 days); provided, however, if a Registration Event occurs (or is continuing) on a date more than one-year after the Qualified Purchaser acquired the Registrable Securities (and thus the one-year holding period under Rule 144(d) has elapsed), liquidated damages shall be paid only with respect to that portion of the Qualified a Purchaser's ’s Registrable Securities that cannot then be immediately resold in reliance on Rule 144. Each such payment shall be due and payable within five days after the end of each calendar month of the Registration Default Period until the termination of the Registration Default Period and within five days after such termination. Such payments shall be in partial compensation to the Qualified Purchaser, and shall not constitute the Qualified Purchaser's ’s exclusive remedy for such events. The Registration Default Period shall terminate upon (i) the filing of the Registration Statement in the case of clause (a) of the definition of “Registration Event, ,” (ii) the SEC Effective Date in the case of clause (b) of the definition of “Registration Event, ,” (iii) the ability of the Qualified Purchaser to effect sales pursuant to the Registration Statement in the case of clause (c) of the definition Definition of “Registration Event, ,” and (iv) the listing or inclusion and/or trading of the Common Stock on an Approved Market, as the case may be, in the case of clause (d) of the definition of Registration Event, and (v) in the case of the events described in clauses (b) and (c) of the definition of “Registration Event, ,” the earlier termination of the Registration Default Period. The amounts payable as partial liquidated damages pursuant to this paragraph shall be payable in lawful money of the United States. Amounts payable as partial liquidated damages to each Qualified Purchaser hereunder with respect to each share of Registrable Securities shall cease when the Qualified Purchaser no longer holds such shares share of Registrable Securities or such shares share of Registrable Securities can be immediately sold by the Qualified Purchaser in reliance on Rule 144.

Failure to File Registration Statement. If a Registration Event occurs, then the Company will make payments to each Purchaser (a "“Qualified Purchaser"”), as partial liquidated damages for the minimum amount of damages to the Qualified Purchaser by reason thereof, and not as a penalty, at a rate equal to 1% of the Purchase Price per share of Registrable Securities then held by a Qualified Purchaser monthly, for each calendar month of the Registration Default Period (pro rated for any period less than 30 days); provided, however, if a Registration Event occurs (or is continuing) on a date more than one-year after the Qualified Purchaser acquired the Registrable Securities (and thus the one-year holding period under Rule 144(d) has elapsed), liquidated damages shall be paid only with respect to that portion of the Qualified Purchaser's ’s Registrable Securities that cannot then be immediately resold in reliance on Rule 144. Each such payment shall be due and payable within five days after the end of each calendar month of the Registration Default Period until the termination of the Registration Default Period and within five days after such termination. Such payments shall be in partial compensation to the Qualified Purchaser, and shall not constitute the Qualified Purchaser's ’s exclusive remedy for such events. The Registration Default Period shall terminate upon (i) the filing of the Registration Statement in the case of clause (a) of the definition of Registration Event, (ii) the SEC Effective Date in the case of clause (b) of the definition of Registration Event, (iii) the ability of the Qualified Purchaser to effect sales pursuant to the Registration Statement in the case of clause (c) of the definition of Registration Event, (iv) the listing or inclusion and/or trading of the Common Stock on an Approved Market, as the case may be, in the case of clause (d) of the definition of Registration Event, and (v) in the case of the events described in clauses (b) and (c) of the definition of Registration Event, the earlier termination of the Registration Default Period. The amounts payable as partial liquidated damages pursuant to this paragraph shall be payable in lawful money of the United States. Amounts payable as partial liquidated damages to each Qualified Purchaser hereunder with respect to each share of Registrable Securities shall cease when the Qualified Purchaser no longer holds such shares of Registrable Securities or such shares of Registrable Securities can be immediately sold by the Qualified Purchaser in reliance on Rule 144.

Failure to File Registration Statement. If a Registration Event occurs, then the Company will make payments to each Purchaser (a "“Qualified Purchaser"”), as partial liquidated damages for the minimum amount of damages to the Qualified Purchaser by reason thereof, and not as a penalty, at a rate equal to one percent (1% %) of the Purchase Offering Price per share of Registrable Securities then Preferred Stock held by a such Qualified Purchaser monthlyper month, for each calendar month of the Registration Default Period (pro rated for any period less than 30 days); provided, however, if a Registration Event occurs (or is continuing) on a date more than one-year after the Qualified Purchaser acquired the Registrable Securities (and thus the one-year holding period under Rule 144(d) has elapsed), liquidated damages shall be paid only with respect to that portion of the a Qualified Purchaser's ’s Registrable Securities that cannot then be immediately resold in reliance on Rule 144. Each such payment shall be due and payable within five days after the end of each calendar month of the Registration Default Period until the termination of the Registration Default Period and within five days after such termination. Such payments shall be in partial compensation to the Qualified Purchaser, and shall not constitute the Qualified Purchaser's ’s exclusive remedy for such events. The Registration Default Period shall terminate upon (i) the filing of the Registration Statement in the case of clause (a) of the definition of “Registration Event, ,” (ii) the SEC Effective Date in the case of clause (b) of the definition of “Registration Event, ,” (iii) the ability of the Qualified Purchaser to effect sales pursuant to the Registration Statement in the case of clause (c) of the definition of “Registration Event, ,” (iv) the listing or inclusion and/or trading of the Common Stock on an Approved Market, as the case may be, in the case of clause (d) of the definition of “Registration Event, ,” and (v) in the case of the events described in clauses (b) and (c) of the definition of “Registration Event, ,” the earlier termination of the Registration Default Period. The amounts payable as partial liquidated damages pursuant to this paragraph shall be payable in lawful money of the United States. Amounts payable as partial liquidated damages to each Qualified Purchaser hereunder with respect to each share of Registrable Securities shall cease when the Qualified Purchaser no longer holds such shares share of Registrable Securities or such shares share of Registrable Securities can be immediately sold by the Qualified Purchaser in reliance on Rule 144.

Failure to File Registration Statement. If a Registration Event occurs, then the Company will make payments to each Purchaser (a "Qualified Purchaser"“Registration Default Payments”), as partial liquidated damages for the minimum amount of damages to the Qualified Purchaser by reason thereof, and not as a penalty, at a rate equal to 1% two percent (2%) of the Purchase Price per share purchase price of Registrable Securities then the Shares held by a Qualified such Purchaser monthlyper month, for each calendar month of the Registration Default Period (pro rated for any period less than 30 days), subject to a cumulative maximum value of 14% (the “Registration Default Payment Cap”); provided, however, if a Registration Event occurs (or is continuing) on a date more than one-one year after the Qualified Purchaser acquired the Registrable Securities (and thus the one-one year holding period under Rule 144(d) has elapsed), the partial liquidated damages shall be paid only with respect to that portion of the Qualified a Purchaser's ’s Registrable Securities that cannot then be immediately resold in reliance on Rule 144; provided a legal opinion with respect to the availability of Rule 144 for the resale of Registrable Securities received upon conversion of the Preferred Shares has been rendered by a law firm acceptable to both the Company and the Holder as evidence that Rule 144 is available for such Registrable Securities. Each such payment shall be due and payable within five Business days after the end of each calendar month of the Registration Default Period until the termination of the Registration Default Period and within five Business days after such termination. Such payment shall be made in cash. The foregoing payments shall be in partial compensation to the Qualified Purchaser, and shall not constitute the Qualified Purchaser's ’s exclusive remedy for such events. The Registration Default Period shall terminate upon (i) the filing of the Registration Statement in the case of clause (a) of the definition of “Registration Event, ,” (ii) the SEC Effective Date in the case of clause (b) of the definition of “Registration Event, ,” (iii) the ability of the Qualified Purchaser to effect sales pursuant to the Registration Statement in the case of clause (c) of the definition of “Registration Event, ,” (iv) the listing or inclusion and/or trading of the Common Stock on an Approved Market, as the case may be, in the case of clause (d) of the definition of “Registration Event, ,” and (v) in the case of the events described in clauses (b) and (c) of the definition of “Registration Event, ,” the earlier termination of the Registration Default Period. The amounts payable as partial liquidated damages pursuant to this paragraph shall be payable in lawful money of the United States. Amounts payable as partial liquidated damages to each Qualified Purchaser hereunder with respect to each share of Registrable Securities shall cease when the Qualified Purchaser no longer holds such shares share of Registrable Securities or such shares share of Registrable Securities can be immediately sold by the Qualified Purchaser in reliance on Rule 144; provided a legal opinion with respect to the availability of Rule 144 for the resale of Regisgrable Securities received upon conversion of the Preferred Shares has been rendered by a law firm acceptable to both the Company and the Holder as evidence that Rule 144 is available for such Registrable Securities.

Failure to File Registration Statement. If a Registration Event occurs, then the Company will make payments to each Purchaser (a "Qualified Purchaser"), as partial liquidated damages for the minimum amount of damages to the Qualified Purchaser by reason thereof, and not as a penalty, at a rate equal to 1% one-hundredth of one percent (0.01%) of the Purchase Offering Price per share of Registrable Securities then held by a Qualified Purchaser monthly, Preferred Stock for each calendar month of the Registration Default Period (pro rated for any period less than 30 days); provided, however, if a Registration Event occurs (or is continuing) on a date more than one-year after the Qualified Purchaser acquired the Registrable Securities (and thus the one-year holding period under Rule 144(d) has elapsed), liquidated damages shall be paid only with respect to that portion of the Qualified a Purchaser's ’s Registrable Securities that cannot then be immediately resold in reliance on Rule 144. Each such payment shall be due and payable within five days after the end of each calendar month of the Registration Default Period until the termination of the Registration Default Period and within five days after such termination. Such payments shall be in partial compensation to the Qualified Purchaser, and shall not constitute the Qualified Purchaser's ’s exclusive remedy for such events. The Registration Default Period shall terminate upon (i) the filing of the Registration Statement in the case of clause (a) of the definition of “Registration Event, ,” (ii) the SEC Effective Date in the case of clause (b) of the definition of “Registration Event, ,” (iii) the ability of the Qualified Purchaser to effect sales pursuant to the Registration Statement in the case of clause (c) of the definition of “Registration Event, ,” and (iv) the listing or inclusion and/or trading of the Common Stock on an Approved Market, as the case may be, in the case of clause (d) of the definition of Registration Event, and (v) in the case of the events described in clauses (b) and (c) of the definition of “Registration Event, ,” the earlier termination of the Registration Default Period. The amounts payable as partial liquidated damages pursuant to this paragraph shall be payable in lawful money of the United States. Amounts payable as partial liquidated damages to each Qualified Purchaser hereunder with respect to each share of Registrable Securities shall cease when the Qualified Purchaser no longer holds such shares share of Registrable Securities or such shares share of Registrable Securities can be immediately sold by the Qualified Purchaser in reliance on Rule 144.

Failure to File Registration Statement. If a Registration Event occurs, then the Company will make payments to each Purchaser (a "“Qualified Purchaser"”), as partial liquidated damages for the minimum amount of damages to the Qualified Purchaser by reason thereof, and not as a penalty, at a rate equal to 1% of the Purchase Price per share of Registrable Securities then held by a Qualified Purchaser monthly, for each calendar month of the Registration Default Period (pro rated for any period less than 30 days); provided, however, if a Registration Event occurs (or is continuing) on a date more than one-year after the Qualified Purchaser acquired the Registrable Securities (and thus the one-year holding period under Rule 144(d) has elapsed), liquidated damages shall be paid only with respect to that portion of the Qualified Purchaser's ’s Registrable Securities that cannot then be immediately resold in reliance on Rule 144. Each such payment shall be due and payable within five days after the end of each calendar month of the Registration Default Period until the termination of the Registration Default Period and within five days after such termination. Such payments shall be in partial compensation to the Qualified Purchaser, and shall not constitute the Qualified Purchaser's ’s exclusive remedy for such events. The Registration Default Period shall terminate upon (i) the filing of the Registration Statement in the case of clause (a) of the definition of Registration Event, (ii) the SEC Effective Date in the case of clause (b) of the definition of Registration Event, (iii) the ability of the Qualified Purchaser to effect sales pursuant to the Registration Statement in the case of clause (c) of the definition of Registration Event, (iv) the listing or inclusion and/or trading of the Common Stock on an Approved Market, as the case may be, in the case of clause (d) of the definition of Registration Event, and (v) in the case of the events described in clauses (b) and (c) of the definition of Registration Event, the earlier termination of the Registration Default Period. The amounts payable as partial liquidated damages pursuant to this paragraph shall be payable in lawful money of the United States. Amounts payable as partial liquidated damages to each Qualified Purchaser hereunder with respect to each share of Registrable Securities shall cease when the Qualified Purchaser no longer holds such shares of Registrable Securities or such shares of Registrable Securities can be immediately sold by the Qualified Purchaser in reliance on Rule 144144(k).

Failure to File Registration Statement. If a Registration Event occurs, then the Company will make payments to each Purchaser and SMH (a to the extent that it has exercised the Placement Agent Warrant)(a "Qualified Purchaser"), as partial liquidated damages for the minimum amount of damages to the Qualified Purchaser by reason thereof, and not as a penalty, at a rate equal to 1% one and one-half percent (1.5%) of the Purchase Offering Price per Share or, with respect to SMH, one-tenth of one and one-half percent (0.15%) of the Offering Price for each share of Registrable Securities then Common Stock acquired upon exercise of the Warrant, held by a such Qualified Purchaser monthlyper month, for each calendar month of the Registration Default Period (pro rated for any period less than 30 days); provided, however, if a Registration Event occurs (or is continuing) on a date more than one-year after the Qualified Purchaser acquired the Registrable Securities (and thus the one-year holding period under Rule 144(d) has elapsed), liquidated damages shall be paid only with respect to that portion of the Qualified Purchaser's Registrable Securities that cannot then be immediately resold in reliance on Rule 144. Each such payment shall be due and payable within five days after the end of each calendar month of the Registration Default Period until the termination of the Registration Default Period and within five days after such termination. Such payments shall be in partial compensation to the Qualified Purchaser, and shall not constitute the Qualified Purchaser's exclusive remedy for such events. The Registration Default Period shall terminate upon (i) the filing of the Registration Statement SEC Effective Date in the case of clause (a) of the definition of "Registration Event, ," (ii) the SEC Effective Date in the case of clause (b) of the definition of Registration Event, (iii) the ability of the Qualified Purchaser to effect sales pursuant to the Registration Statement in the case of clause (cb) of the definition of "Registration Event, ," and (iviii) the listing or inclusion and/or trading of the Common Stock on an Approved Market, as the case may be, in the case of clause (d) of the definition of Registration Event, and (v) in the case of the events described in clauses (b) and (c) of the definition of "Registration Event, the earlier termination of the Registration Default Period. ." The amounts payable as partial liquidated damages pursuant to this paragraph shall be payable in lawful money of the United States. Amounts payable as partial liquidated damages to each Qualified Purchaser hereunder with respect to each share of Registrable Securities shall cease when the Qualified Purchaser no longer holds such shares share of Registrable Securities or such shares of Securities. SMH acknowledges and agrees that the partial liquidated damages provided for in this Section 3(f) shall apply to Registrable Securities can be immediately sold by of SMH only to the Qualified Purchaser in reliance on Rule 144extent SMH has exercised the Warrant.

Failure to File Registration Statement. If a Registration Event occurs, then the Company will make payments to each Purchaser and the Placement Agent (to the extent it has exercised the Placement Agent Warrant) (a "Qualified Purchaser"), as partial liquidated damages for the minimum amount of damages to the Qualified Purchaser by reason thereof, and not as a penalty, at a rate equal to 1% one percent of the Purchase Offering Price per share of Registrable Securities then Common Stock held by a such Qualified Purchaser monthlyper month, for each calendar month of the Registration Default Period (pro rated for any period less than 30 days); provided, however, if a Registration Event occurs (or is continuing) on a date more than one-year after the Qualified Purchaser acquired the Registrable Securities (and thus the one-year holding period under Rule 144(d) has elapsed), liquidated damages shall be paid only with respect to that portion of the a Qualified Purchaser's Registrable Securities that cannot then be immediately resold in reliance on Rule 144. Each such payment shall be due and payable within five days after the end of each calendar month of the Registration Default Period until the termination of the Registration Default Period and within five days after such termination. Such payments shall be in partial compensation to the Qualified Purchaser, and shall not constitute the Qualified Purchaser's exclusive remedy for such events. The Registration Default Period shall terminate upon (i) the filing of the Registration Statement in the case of clause (a) of the definition of "Registration Event, ," (ii) the SEC Effective Date in the case of clause (b) of the definition of "Registration Event, ," (iii) the ability of the Qualified Purchaser to effect sales pursuant to the Registration Statement in the case of clause (c) of the definition of "Registration Event, ," (iv) the listing or inclusion and/or trading of the Common Stock on an Approved Market, as the case may be, in the case of clause (d) of the definition of "Registration Event, ," and (v) in the case of the events described in clauses (b) and (c) of the definition of "Registration Event, ," the earlier termination of the Registration Default Period. The amounts payable as partial liquidated damages pursuant to this paragraph shall be payable in lawful money of the United States. Amounts payable as partial liquidated damages to each Qualified Purchaser hereunder with respect to each share of Registrable Securities shall cease when the Qualified Purchaser no longer holds such shares share of Registrable Securities or such shares share of Registrable Securities can be immediately sold by the Qualified Purchaser in reliance on Rule 144. The Placement Agent acknowledges and agrees that the partial liquidated damages provided for in this Section 3(e) shall apply to Registrable Securities and the Placement Agent only to the extent the Placement Agent has exercised the Placement Agent Warrant.

Failure to File Registration Statement. If a Registration Event occurs, then the Company will make payments to each Purchaser Purchaser, each Investor, and SMH (a to the extent that it has exercised the Warrant)(a "Qualified Purchaser"), as partial liquidated damages for the minimum amount of damages to the Qualified Purchaser by reason thereof, and not as a penalty, at a rate equal to one percent (1% %) of the Purchase Offering Price per share of Registrable Securities then Preferred Stock or, with respect to SMH, one tenth of one percent (0.1%) of the Offering Price for each share of Preferred Stock acquired upon exercise of the Warrant, held by a such Qualified Purchaser monthlyper month, for each calendar month of the Registration Default Period (pro rated for any period less than 30 days); provided, however, if a Registration Event occurs (or is continuing) on a date more than one-year after the Qualified Purchaser acquired the Registrable Securities (and thus the one-year holding period under Rule 144(d) has elapsed), liquidated damages shall be paid only with respect to that portion of the a Qualified Purchaser's Registrable Securities that cannot then be immediately resold in reliance on Rule 144. Each such payment shall be due and payable within five days after the end of each calendar month of the Registration Default Period until the termination of the Registration Default Period and within five days after such termination. Such payments shall be in partial compensation to the Qualified Purchaser, and shall not constitute the Qualified Purchaser's exclusive remedy for such events. The Registration Default Period shall terminate upon (i) the filing of the Registration Statement in the case of clause (a) of the definition of "Registration Event, (ii) the SEC Effective Date in the case of clause (b) of the definition of Registration Event, (iii) the ability of the Qualified Purchaser to effect sales pursuant to the Registration Statement in the case of clause (c) of the definition of Registration Event, (iv) the listing or inclusion and/or trading of the Common Stock on an Approved Market, as the case may be, in the case of clause (d) of the definition of Registration Event, and (v) in the case of the events described in clauses (b) and (c) of the definition of Registration Event, the earlier termination of the Registration Default Period. The amounts payable as partial liquidated damages pursuant to this paragraph shall be payable in lawful money of the United States. Amounts payable as partial liquidated damages to each Qualified Purchaser hereunder with respect to each share of Registrable Securities shall cease when the Qualified Purchaser no longer holds such shares of Registrable Securities or such shares of Registrable Securities can be immediately sold by the Qualified Purchaser in reliance on Rule 144.,"

Failure to File Registration Statement. If a Registration Event occurs, then the Company will make payments to each Purchaser (a "Qualified Purchaser"), as partial liquidated damages for the minimum amount of damages to the Qualified Purchaser by reason thereof, and not as a penalty, at a rate equal to 1% one percent (1.0%) of the Purchase Offering Price per share of Registrable Securities then Unit held by a Qualified such Purchaser monthlyper month, for each calendar month of the Registration Default Period (pro rated for any period less than 30 days); providedor portion thereof, however, if a Registration Event occurs (or is continuing) on a date more than one-year after the Qualified Purchaser acquired the Registrable Securities (and thus the one-year holding period under Rule 144(d) has elapsed), provided that partial liquidated damages shall not be paid only with respect to that portion those Registrable Securities which cannot be registered under Rule 415 solely as a result of action by the Commission. The partial liquidated damages shall not exceed an aggregate of 5.0% of the Qualified Purchaser's Registrable Securities that cannot then be immediately resold in reliance on Rule 144aggregate purchase price paid by the Purchasers pursuant to this Agreement. Each such payment shall be due and payable within five days after the end of each calendar month of the Registration Default Period until the termination of the Registration Default Period and within five days after such termination. Such payments shall be in partial compensation to the Qualified Purchaser, and shall not constitute the Qualified Purchaser's exclusive remedy for such events. The Registration Default Period shall terminate upon (i) the filing of the Registration Statement SEC Effective Date in the case of clause (a) of the definition of "Registration Event, ," (ii) the SEC Effective Date in the case of clause (b) of the definition of Registration Event, (iii) the ability of the Qualified Purchaser to effect sales pursuant to the Registration Statement in the case of clause (cb) of the definition of "Registration Event, ," and (iviii) the listing or inclusion and/or trading of the Common Stock on an Approved Market, as the case may be, in the case of clause (d) of the definition of Registration Event, and (v) in the case of the events described in clauses (b) and (c) of the definition of "Registration Event, the earlier termination of the Registration Default Period. ." The amounts payable as partial liquidated damages pursuant to this paragraph shall be payable in lawful money of the United States. Amounts payable as partial liquidated damages to each Qualified Purchaser hereunder with respect to each share of Registrable Securities shall cease when the Qualified Purchaser no longer holds such shares share of Registrable Securities or such shares of Registrable Securities can be immediately sold by the Qualified Purchaser in reliance on Rule 144Securities.