Common use of Public Information Failure Clause in Contracts

Public Information Failure. At any time during the period commencing from the twelve (12) month anniversary of the date the Company becomes current in its Exchange Act filing obligations and ending at such time that all of the Shares may be sold without the requirement for the Company to be in compliance with Rule 144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144, if the Company (i) shall fail for any reason to satisfy the current public information requirement under Rule 144(c) or (ii) has ever been an issuer described in Rule 144(i)(1)(i) or becomes an issuer in the future, and the Company shall fail to satisfy any condition set forth in Rule 144(i)(2) (a “Public Information Failure”) then, in addition to such Purchaser’s other available remedies, the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, by reason of any such delay in or reduction of its ability to sell the Shares, an amount in cash equal to one percent (1.0%) of the aggregate Subscription Amount of such Purchaser’s Shares then held by the Purchaser on the day of a Public Information Failure and on every thirtieth (30th) day (pro-rated for periods totaling less than thirty days) thereafter until the earlier of (a) the date such Public Information Failure is cured up to a maximum of five (5) 30-day periods and (b) such time that such public information is no longer required for the Purchasers to transfer the Shares pursuant to Rule 144. The payments to which a Purchaser shall be entitled pursuant to this Section 4.2(b) are referred to herein as “Public Information Failure Payments.” Public Information Failure Payments shall be paid on the earlier of (i) the last day of the calendar month during which such Public Information Failure Payments are incurred and (ii) the third (3rd) Business Day after the event or failure giving rise to the Public Information Failure Payments is cured. In the event the Company fails to make Public Information Failure Payments in a timely manner, such Public Information Failure Payments shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Public Information Failure, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief.

Public Information Failure. At any time during the period commencing from the twelve six (126) month anniversary of the date the Company becomes current in its Exchange Act filing obligations hereof and ending at such time that all of the Shares Securities may be sold without the requirement for the Company to be in compliance with Rule 144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144, if the Company (i) shall fail for any reason to satisfy the current public information requirement under Rule 144(c) or (ii) has ever been an issuer described in Rule 144(i)(1)(i144 (i)(1)(i) or becomes an issuer in the future, and the Company shall fail to satisfy any condition set forth in Rule 144(i)(2) (a “Public Information Failure”) then, in addition to such Purchaser’s other available remedies, the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, by reason of any such delay in or reduction of its ability to sell the SharesSecurities, an amount in cash equal to one two percent (1.02.0%) of the aggregate Subscription Amount of such Purchaser’s Shares then held by the Purchaser Securities on the day of a Public Information Failure and on every thirtieth (30th) day (pro-pro rated for periods totaling less than thirty days) thereafter until the earlier of (a) the date such Public Information Failure is cured up to a maximum of five (5) 30-day periods and (b) such time that such public information is no longer required for the Purchasers to transfer the Underlying Shares pursuant to Rule 144. The payments to which a Purchaser shall be entitled pursuant to this Section 4.2(b) 4.12 are referred to herein as “Public Information Failure Payments.” Public Information Failure Payments shall be paid on the earlier of (i) the last day of the calendar month during which such Public Information Failure Payments are incurred and (ii) the third (3rd) Business Day after the event or failure giving rise to the Public Information Failure Payments is cured. In the event the Company fails to make Public Information Failure Payments in a timely manner, such Public Information Failure Payments shall bear interest at the rate of 1.01.5% per month (prorated for partial months) until paid in full. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Public Information Failure, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief.

Public Information Failure. At any time during the period commencing from the twelve (12) month anniversary of 30 days following the date the Company becomes current in its Exchange Act filing obligations hereof and ending at such time that all of the Exchange Shares and shares of Common Stock issuable upon exercise of the New Warrant Shares (the “New Warrant Shares”) may be sold without the requirement for the Company to be in compliance with Rule 144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144, if the Company (i) shall fail for any reason to satisfy the current public information requirement under Rule 144(c) or (ii) has ever been an issuer described in Rule 144(i)(1)(i) or becomes an issuer in the future, and the Company shall fail to satisfy any condition set forth in Rule 144(i)(2) (a “Public Information Failure”) then, in addition to such Purchaserthe Holder’s other available remedies, the Company shall pay to a Purchaserthe Holder, in cash, as partial liquidated damages and not as a penalty, by reason of any such delay in or reduction of its ability to sell the Exchange Shares and New Warrant Shares, an amount in cash equal to one two percent (1.02.0%) of the aggregate Subscription Amount value of such Purchaser’s the Exchange Shares then held and New Warrant Shares issued and issuable to the Holder that have not been sold or otherwise disposed of by the Purchaser Holder (value based on the average of the VWAPs during the 22 trading days immediately prior to the date in question less, as to the New Warrant Shares, the then Exercise Price) on the day of a Public Information Failure and on every thirtieth (30th) day (pro-rated for periods totaling less than thirty days) thereafter until the earlier of (a) the date such Public Information Failure is cured up to a maximum of five (5) 30-day periods and cured, (b) such time that such public information is no longer required for the Purchasers Holders to transfer the Exchange Shares and New Warrant Shares pursuant to Rule 144144 and (c) such time as the Exchange Shares and New Warrant Shares are sold or otherwise disposed of by the Holder. The payments to which a Purchaser Holder shall be entitled pursuant to this Section 4.2(b) 11 are referred to herein as “Public Information Failure Payments.” Public Information Failure Payments shall be paid on the earlier of (i) the last day of the calendar month during which such Public Information Failure Payments are incurred and (ii) the third (3rd) Business Day after the event or failure giving rise to the Public Information Failure Payments is cured. In the event the Company fails to make Public Information Failure Payments in a timely manner, such Public Information Failure Payments shall bear interest at the rate of 1.01.5% per month (prorated for partial months) until paid in full. Nothing herein shall limit such PurchaserXxxxxx’s right to pursue actual damages for the Public Information Failure, and such Purchaser Holder shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief.

Public Information Failure. At any time during commencing six months after the period commencing from the twelve (12) month anniversary of the date the Company becomes current in its Exchange Act filing obligations Closing Date and ending at such time that all of the Shares Securities may be sold without the requirement for the Company to be in compliance with Rule 144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144, if the Company (i) shall fail for any reason to satisfy the current public information requirement under Rule 144(c) or (ii) has ever been an issuer described in Rule 144(i)(1)(i) or becomes an issuer in the future, and the Company shall fail Underlying Shares are not then subject to satisfy any condition set forth in Rule 144(i)(2) unrestricted public resale pursuant to an effective Registration Statement (a “Public Information Failure”) then, in addition to such PurchaserSubscriber’s other available remedies, the Company shall pay to a PurchaserSubscriber, in cash, as partial liquidated damages and not as a penalty, by reason of any such delay in or reduction of its ability to sell the SharesSecurities, an amount in cash equal to one percent (1.0%) of the aggregate Subscription Amount value of such Purchaser’s Shares then the Preferred Stock (based on the price per share paid by the Subscribers) held by the Purchaser such Subscriber on the day of a Public Information Failure and on every thirtieth (30th) day (pro-rated for periods totaling less than thirty days) thereafter until the earlier of (a) the date such Public Information Failure is cured up to a maximum of five (5) 30-day periods and (b) such time that such public information is no longer required for the Purchasers to transfer the Underlying Shares pursuant to Rule 144. The payments to which a Purchaser Subscriber shall be entitled pursuant to this Section 4.2(b) 5.3 are referred to herein as “Public Information Failure Payments.” Public Information Failure Payments shall be paid on the earlier of (i) the last day of the calendar month during which such Public Information Failure Payments are incurred and (ii) the third (3rd) Business Day after the event or failure giving rise to the Public Information Failure Payments is cured. In the event the Company fails to make Public Information Failure Payments in a timely manner, such Public Information Failure Payments shall bear interest at the rate of 1.01.5% per month (prorated for partial months) until paid in full. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Public Information Failure, and such Purchaser Subscriber shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief.

Public Information Failure. At any time during the period commencing from the twelve (12) month anniversary of the date the Company becomes current in its Exchange Act filing obligations hereof and ending at such time that all of the Exchange Note and Underlying Shares may be sold without the requirement for the Company to be in compliance with Rule 144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144, if the Company (i) shall fail for any reason to satisfy the current public information requirement under Rule 144(c) or (ii) has ever been an issuer described in Rule 144(i)(1)(i) or becomes an issuer in the future, and the Company shall fail to satisfy any condition set forth in Rule 144(i)(2) (a “Public Information Failure”) then, in addition to such Purchaserthe Holder’s other available remedies, the Company shall pay to a PurchaserHolder, in cash, as partial liquidated damages and not as a penalty, by reason of any such delay in or reduction of its ability to sell the Underlying Shares, an amount in cash equal to one two percent (1.02.0%) of the aggregate Subscription Amount principal amount of such PurchaserExchange Note of the Holder’s Shares then held by the Purchaser Exchange Note on the day of a Public Information Failure and on every thirtieth (30th) day (pro-pro rated for periods totaling less than thirty days) thereafter until the earlier of (a) the date such Public Information Failure is cured up to a maximum of five (5) 30-day periods and (b) such time that such public information is no longer required for the Purchasers Holder to transfer the Underlying Shares pursuant to Rule 144. The payments to which a Purchaser Holder shall be entitled pursuant to this Section 4.2(b4.3(b) are referred to herein as “Public Information Failure Payments.” Public Information Failure Payments shall be paid on the earlier of (i) the last day of the calendar month during which such Public Information Failure Payments are incurred and (ii) the third (3rd) Business Day business day after the event or failure giving rise to the Public Information Failure Payments is cured. In the event that the Company fails to make Public Information Failure Payments in a timely manner, such Public Information Failure Payments shall bear interest at the rate of 1.01.5% per month (prorated for partial months) until paid in full. Nothing herein shall limit such Purchaserthe Holder’s right to pursue actual damages for the Public Information Failure, and such Purchaser the Holder shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief.

Public Information Failure. At any time during from and after the period commencing from the twelve (12) month anniversary of the date the Company becomes current in its Exchange Act filing obligations Effective Time and ending at such time that all of the Shares Exchange Securities may be sold without the requirement for the Company to be in compliance with Rule 144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144, if the Company (i) shall fail for any reason to satisfy the current public information requirement under Rule 144(c) or (ii) has ever been an issuer described in Rule 144(i)(1)(i) or becomes an issuer in the future, and the Company shall fail to satisfy any condition set forth in Rule 144(i)(2) (a “Public Information Failure”) then, in addition to such Purchaserthe Investor’s other available remedies, the Company shall pay to a Purchaserthe Investor, in cash, as partial liquidated damages and not as a penalty, by reason of any such delay in or reduction of its ability to sell the Shares, an amount in cash equal to one two percent (1.02.0%) of the aggregate Subscription Amount product of such Purchaser’s (x) the largest number of Shares then held by the Purchaser on the day of a Investor during any Public Information Failure and (y) the greatest Closing Sale Price (as defined in the Warrants) of the Common stock during any Public Information Failure, and on every thirtieth (30th) day (pro-rated for periods totaling less than thirty days) thereafter until the earlier of (a) the date such Public Information Failure is cured up to a maximum of five (5) 30-day periods and (b) such time that such public information is no longer required for the Purchasers Investor to transfer the Shares pursuant to Rule 144. The payments to which a Purchaser the Investor shall be entitled pursuant to this Section 4.2(b) 6.7 are referred to herein as “Public Information Failure Payments.” Public Information Failure Payments shall be paid on the earlier of (i) the last day of the calendar month during which such Public Information Failure Payments are incurred and (ii) the third (3rd) Business Day business day after the event or failure giving rise to the Public Information Failure Payments is cured. In the event the Company fails to make Public Information Failure Payments in a timely manner, such Public Information Failure Payments shall bear interest at the rate of 1.01.5% per month (prorated for partial months) until paid in full. Nothing herein shall limit such Purchaserthe Investor’s right to pursue actual damages for the Public Information Failure, and such Purchaser the Investor shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief.

Public Information Failure. At any time during the period commencing from the twelve six (126) month anniversary of the First Closing date the Company becomes current in its Exchange Act filing obligations and ending at such time that all of the Shares shares of Common Stock issuable upon conversion of the Notes and exercise of the Warrants (hereinafter “Underlying Shares”) can be sold either pursuant to a registration statement, or if a registration statement is not available for the resale of all of such securities, may be sold without the requirement for the Company to be in compliance with Rule 144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144, if the Company (i) shall fail for any reason or no reason to satisfy the current public information requirement under Rule 144(c) or (ii) has ever been an issuer described in Rule 144(i)(1)(i) or becomes an issuer in the future, and the Company shall fail to satisfy any condition set forth in Rule 144(i)(2) (a ““ Public Information FailureFailure ”) then, in addition to such Purchaser’s other available remedies, the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, remedy for the damages to any holder of such securities by reason of any such delay in or reduction of its ability to sell the SharesUnderlying Shares (which remedy shall not be exclusive of any other remedies available), including, without limitation, specific performance), the Company shall pay to each holder of Underlying Shares who is not eligible to sell all of his, her or its Underlying Shares pursuant to Rule 144 as a result of such Public Information Failure an amount in cash cash, as liquidated damages and not as a penalty equal to one percent and one half (1.01.5%) percent of the aggregate Subscription Amount of such Purchaser’s Shares then held by the Purchaser Purchase Price on the day of a Public Information Failure and on every thirtieth (30th) day (pro-pro rated for periods totaling less than thirty (30) days) thereafter until the earlier of (ai) the date such Public Information Failure is cured up to a maximum of five (5) 30-day periods and (bii) such time that such public information is no longer required for the Purchasers to transfer the Shares pursuant to Rule 144. The payments to which a Purchaser holder shall be entitled pursuant to this Section 4.2(b) 6 are referred to herein as “Public Information Failure Payments.” Public Information Failure Payments shall be paid on the earlier of (iI) the last day of the calendar month during which such Public Information Failure Payments are incurred and (iiII) the third fifth (3rd5th) Business Day after the event or failure giving rise to the Public Information Failure Payments is cured. In Notwithstanding the event the Company fails to make Public Information Failure Payments in a timely mannerforegoing, such no Public Information Failure Payments shall bear interest at be required to be made to any such Subscriber who is an officer, director or 10% shareholder of the rate Company. _________________________ 1 A “senior foreign political figure” is defined as a senior official in the executive, legislative, administrative, military or judicial branches of 1.0% per month a foreign government (prorated for partial months) until paid in fullwhether elected or not), a senior official of a major foreign political party, or a senior executive of a foreign government-owned corporation. Nothing herein shall limit such Purchaser’s right to pursue actual damages In addition, a “senior foreign political figure” includes any corporation, business or other entity that has been formed by, or for the Public Information Failure, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitationbenefit of, a decree of specific performance and/or injunctive reliefsenior foreign political figure.