Common use of Failure to File Registration Statement Clause in Contracts

Failure to File Registration Statement. The Company and the Purchasers agree that the Holders will suffer damages if the Registration Statement is not filed on or prior to the Filing Date and not declared effective by the Commission on or prior to the Effectiveness Date and maintained in the manner contemplated herein during the Effectiveness Time or if certain other events occur. The Company and the Holders further agree that it would not be feasible to ascertain the extent of such damages with precision. Accordingly, if (A) the Registration Statement is not filed on or prior to the Filing Date, or is not declared effective by the Commission on or prior to the Effectiveness Date (or in the event an additional Registration Statement is required to be filed because the actual number of shares of Common Stock into which the Debentures are convertible and the Warrants are exercisable exceeds the number of shares of Common Stock initially registered is not filed and declared effective with the time periods set forth in Section 2), or (B) the Company fails to file with the Commission a request for acceleration in accordance with Rule 12dl-2 promulgated under the Exchange Act within five (5) Business Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that a Registration Statement will not be "reviewed," or not subject to further review, or (C) the Registration Statement is filed with and declared effective by the Commission but thereafter ceases to be effective as to all Registrable Securities at any time prior to the expiration of the Effectiveness Period, without being succeeded immediately by a subsequent Registration Statement filed with and declared effective by the Commission, or (D) trading in the Common Stock shall be suspended or if the Common Stock is delisted for any reason for more than three Business Days in the aggregate, or (E) the rights of the Holders to convert the Debentures or exercise the warrants are unavailable for any reason except if the right to convert the Debenture is unavailable as a result of Section 5(a)(ii) of the Debentures, or (F) the Company breaches in a material respect any covenant or other material term or condition to this Agreement, the Debentures, the Securities Purchase Agreement (other than a representation or 15 warranty contained therein) or any other agreement, document, certificate or other instrument delivered in connection with the transactions contemplated hereby and thereby, and such breach continues for a period of thirty days after written notice thereof to the Company, or (G) the Company fails to convene a meeting of shareholders within the time period specified in Section 3.13 of the Securities Purchase Agreement or does so convene a meeting of shareholders within such time period but fails to obtain Shareholder Approval at such meeting, or the Company fails to reserve sufficient shares to cover the exercise of the Warrants or the conversion of the Debentures, or (H) the Company has breached Section 3(n) hereof (any such failure or breach being referred to as an "Event," and for purposes of clauses (A), (E), (G) and (H) the date on which such Event occurs, or for purposes of clause (B) the date on which such five day period is exceeded, or for purposes of clause (C) after more than fifteen Business Days, or for purposes of clause (D) the date on which such three Business Day period is exceeded, or for clause (F) the date on which such thirty day period is exceeded, being referred to as "Event Date"), the Company shall pay in cash as liquidated damages to each Holder an amount equal to 2.0% of the aggregate principal amount of Debentures purchased by such Holder and the aggregate amount of the exercise price of the Warrants purchased by such Holder, whether or not exercised, for each 30 day period, or portion hereof, commencing on the Event Date until the applicable Event is cured. Payments to be made pursuant to this Section 7(e) shall be due and payable immediately upon demand in immediately available funds.

Failure to File Registration Statement. The Company Corporation and the Purchasers Placement Agent agree that the Holders will suffer damages if the Registration Statement is not filed on or prior to the Filing Date and not declared effective by the Commission on or prior to the Effectiveness Date and maintained in the manner contemplated herein during the Effectiveness Time or if certain other events occur. The Company Corporation and the Holders further agree that it would not be feasible to ascertain the extent of such damages with precision. Accordingly, if (A) the Registration Statement is not filed on or prior to the Filing Date, or is not declared effective by the Commission on or prior to the Effectiveness Date (or in the event an additional Registration Statement is required to be filed because the actual number of shares of Common Stock into which the Debentures are convertible and the Warrants are exercisable exceeds the number of shares of Common Stock initially registered is not filed and declared effective with the time periods set forth in Section 2)Date, or (B) the Company Corporation fails to file with the Commission a request for acceleration in accordance with Rule 12dl-2 promulgated under the Exchange Act within five (5) Business Days of the date that the Company Corporation is notified (orally or in writing, whichever is earlier) by the Commission that a Registration Statement will not be "reviewed," or not subject to further review, or (C) the Registration Statement is filed with and declared effective by the Commission but thereafter ceases to be effective as to all Registrable Securities at any time prior to the expiration of the Effectiveness Period, without being succeeded immediately by a subsequent Registration Statement filed with and declared effective by the Commission, or (D) trading in the Common Stock shall be suspended or if the Common Stock is delisted from The OTC Market for any reason for more than three (3) Business Days in the aggregate, or (E) the rights of the Holders to convert the Debentures or exercise the warrants are unavailable for any reason except if the right to convert the Debenture is unavailable as a result of Section 5(a)(ii) of the Debentures, or (F) the Company Corporation breaches in a material respect any covenant or other material term or condition to this Agreement, the Debentures, the Securities Purchase Agreement (other than a representation or 15 warranty contained therein) or any other agreement, document, certificate or other instrument delivered in connection with the transactions contemplated hereby and thereby, and such breach continues for a period of thirty (30) days after written notice thereof to the CompanyCorporation, or (GF) the Company fails to convene a meeting of shareholders within the time period specified in Section 3.13 of the Securities Purchase Agreement or does so convene a meeting of shareholders within such time period but fails to obtain Shareholder Approval at such meeting, or the Company fails to reserve sufficient shares to cover the exercise of the Warrants or the conversion of the Debentures, or (H) the Company Corporation has breached Section 3(n) hereof (any such failure or breach being referred to as an "EventEVENT," and for purposes of clauses clause (A), (E), (G) and (H) the date on which such Event occurs, or for purposes of clause (B) the date on which such five day period is exceeded, or for purposes of clause (C) after more than fifteen (15) Business Days, or for purposes of clause (D) the date on which such three Business Day period is exceeded, or for clause (FE) the date on which such thirty day period is exceeded, being referred to as "Event DateEVENT DATE"), the Company Corporation shall pay in cash as liquidated damages to each Holder an amount equal to (i) 2.0% of the aggregate principal amount stated value of Debentures purchased the outstanding Shares held by such Holder and plus the aggregate amount stated value of any Shares that have been converted to the extent any of the exercise price of the Warrants purchased by Underlying Shares issued upon such Holder, whether or conversion have not exercisedbeen sold, for each 30 the 30-day period, or portion hereofthereof, commencing on the Event Date; and (ii) 3.0% of the stated value of the outstanding Shares held by such Holder plus the stated value of any Shares that have been converted to the extent any of the Underlying Shares issued upon such conversion have not been sold, for each subsequent 30-day period, or portion thereof, commencing on the 31st day after the Event Date until the applicable Event is cured, but not to exceed a total of 30%. Payments to be made pursuant to this Section 7(e) shall be due and payable immediately upon demand in immediately available funds.

Failure to File Registration Statement. The Company Corporation and the Purchasers agree that the Holders will suffer damages if the Registration Statement is not filed on or prior to the Filing Date and not declared effective by the Commission on or prior to the Effectiveness Date and maintained in the manner contemplated herein during the Effectiveness Time or if certain other events occur. The Company Corporation and the Holders further agree that it would not be feasible to ascertain the extent of such damages with precision. Accordingly, if (A) the Registration Statement is not filed on or prior to the Filing Date, or is not declared effective by the Commission on or prior to the Effectiveness Date (or in the event an additional Registration Statement is required to be filed because the actual number of shares of Common Stock into which the Debentures Securities are convertible and the Warrants are exercisable exceeds the number of shares of Common Stock initially registered is not filed and declared effective with the time periods set forth in Section 2), or (B) the Company Corporation fails to file with the Commission a request for acceleration in accordance with Rule 12dl-2 promulgated under the Exchange Act within five (5) Business Days of the date that the Company Corporation is notified (orally or in writing, whichever is earlier) by the Commission that a Registration Statement will not be "reviewed," or not subject to further review, or (C) the Registration Statement is filed with and declared effective by the Commission but thereafter ceases to be effective as to all Registrable Securities at any time prior to the expiration of the Effectiveness Period, without being succeeded immediately by a subsequent Registration Statement filed with and declared effective by the Commission, or (D) trading in the Common Stock shall be suspended or if the Common Stock is delisted from The OTC Market for any reason for more than three (3) Business Days in the aggregate, or (E) the conversion rights of the Holders to convert the Debentures or exercise the warrants are unavailable suspended for any reason except if under the right to convert the Debenture is unavailable as a result Certificate of Section 5(a)(ii) of the DebenturesDesignation, or (F) the Company Corporation breaches in a material respect any covenant or other material term or condition to this Agreement, the Debentures, Certificate of Designation or the Securities Purchase Agreement (other than a representation or 15 warranty contained therein) or any other agreement, document, certificate or other instrument delivered in connection with the transactions contemplated hereby and thereby, and such breach continues for a period of thirty (30) days after written notice thereof to the CompanyCorporation, or (G) the Company fails to convene a meeting of shareholders within the time period specified in Section 3.13 of the Securities Purchase Agreement or does so convene a meeting of shareholders within such time period but fails to obtain Shareholder Approval at such meeting, or the Company fails to reserve sufficient shares to cover the exercise of the Warrants or the conversion of the Debentures, or (H) the Company Corporation has breached Section 3(n) hereof (any such failure or breach being referred to as an "EventEVENT," and for purposes of clauses (A), (E), (G) and (HE) the date on which such Event occurs, or for purposes of clause (B) the date on which such five day period is exceeded, or for purposes of clause (C) after more than fifteen (15) Business Days, or for purposes of clause (D) the date on which such three Business Day period is exceeded, or for clause (F) the date on which such thirty day period is exceeded, being referred to as "Event DateEVENT DATE"), the Company Corporation shall pay in cash as liquidated damages to each Holder an amount equal to (i) 2.0% of the aggregate principal amount stated value of Debentures purchased the outstanding Shares held by such Holder and plus the aggregate amount stated value of any Shares that have been converted to the extent any of the exercise price of the Warrants purchased by Underlying Shares issued upon such Holder, whether or conversion have not exercisedbeen sold, for each 30 the 30-day period, or portion hereofthereof, commencing on the Event Date; and (ii) 3.0% of the stated value of the outstanding Shares held by such Holder plus the stated value of any Shares that have been converted to the extent any of the Underlying Shares issued upon such conversion have not been sold, for each subsequent 30-day period, or portion thereof, commencing on the 31st day after the Event Date until the applicable Event is cured, but not to exceed a total of 30%. Payments to be made pursuant to this Section 7(e) shall be due and payable immediately upon demand in immediately available funds.

Failure to File Registration Statement. The Company and the Purchasers agree that the Holders will suffer damages if the Registration Statement is not filed on or prior to the Filing Date and not declared effective by the Commission on or prior to the Effectiveness Date and maintained in the manner contemplated herein during the Effectiveness Time Period or if certain other events occur. The Company and the Holders further agree that it would not be feasible to ascertain the extent of such damages with precision. Accordingly, if (Ai) the Registration Statement is not filed on or prior to the Filing Date, or is not declared effective by the Commission on or prior to the Effectiveness Date (or in the event an additional Registration Statement is required to be filed because the actual number of shares of Common Stock into which the Debentures are convertible and the Warrants are exercisable exceeds the number of shares of Common Stock initially registered and is not filed and declared effective with within the time periods set forth in Section 2), or (Bii) the Company fails to file with the Commission a request for acceleration in accordance with Rule 12dl-2 promulgated under the Exchange Act within five (5) Business Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that a Registration Statement will not be "reviewed," or not subject to further review, or (Ciii) the Registration Statement is filed with and declared effective by the Commission but thereafter ceases to be effective as to all Registrable Securities at any time prior to the expiration of the Effectiveness Period, without being succeeded immediately within thirty (30) days by a subsequent Registration Statement filed with and declared effective by the Commission, or (Div) trading in the Common Stock shall be suspended or if the Common Stock is delisted from the American Stock Exchange for any reason for more than three (3) Business Days in the aggregate, or (E) the rights of the Holders to convert the Debentures or exercise the warrants are unavailable for any reason except if the right to convert the Debenture is unavailable as a result of Section 5(a)(ii) of the Debentures, or (Fv) the Company breaches in a material respect any covenant or other material term or condition to this Agreement, the Debentures, the Securities Purchase Agreement (other than a representation or 15 warranty contained therein) or any other agreement, document, certificate or other instrument delivered in connection with the transactions contemplated hereby and thereby, and such breach continues for a period of thirty (30) days after written notice thereof to the Company, or (G) the Company fails to convene a meeting of shareholders within the time period specified in Section 3.13 of the Securities Purchase Agreement or does so convene a meeting of shareholders within such time period but fails to obtain Shareholder Approval at such meeting, or the Company fails to reserve sufficient shares to cover the exercise of the Warrants or the conversion of the Debentures, or (Hvii) the Company has breached Section 3(n) hereof of this Agreement (any such failure or breach being referred to as an "Event," and for purposes of clauses (A), (E), (G) and (H) the date on which such Event occurs, or for purposes of clause (B) the date on which such five day period is exceeded, or for purposes of clause (C) after more than fifteen Business Days, or for purposes of clause (D) the date on which such three Business Day period is exceeded, or for clause (F) the date on which such thirty day period is exceeded, being referred to as "Event Date"), the Company shall pay in cash as liquidated damages for such failure and not as a penalty to each Holder an amount equal to 2.02% of such Holder's pro rata share of the aggregate principal amount purchase price paid by all Holders for all shares of Debentures Common Stock and Warrants purchased by such Holder and then outstanding pursuant to the AWVF Purchase Agreement and the aggregate amount of Four Corners Purchase Agreement, as applicable (the exercise price of the Warrants purchased by such Holder, whether or not exercised, for each 30 day period, or portion hereof, commencing on the Event Date until the applicable Event is cured"Liquidated Damages Amount"). Payments to be made pursuant to this Section 7(e8(e) shall be due and payable in cash immediately upon demand in immediately available fundsdemand. The parties agree that the Liquidated Damages Amount represents a reasonable estimate on the part of the parties, as of the date of this Agreement, of the amount of damages that may be incurred by the Holders if the Registration Statement is not filed on or prior to the Filing Date or has not been declared effective by the Commission on or prior to the Effectiveness Date.