Common use of Public Information Failure Clause in Contracts

Public Information Failure. At any time commencing six months after the Closing Date and ending at such time that all of the 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 shall fail for any reason to satisfy the current public information requirement under Rule 144(c) and the Underlying Shares are not then subject to unrestricted public resale pursuant to an effective Registration Statement (a “Public Information Failure”) then, in addition to such Subscriber’s other available remedies, the Company shall pay to a Subscriber, 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 Securities, an amount in cash equal to one percent (1.0%) of the aggregate value of the Preferred Stock (based on the price per share paid by the Subscribers) held by 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 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 Subscriber shall be entitled pursuant to this Section 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 1.5% 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 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 commencing six months from and after the Closing Date Effective Time and ending at such time that all of the 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 Underlying Shares are not then subject Company shall fail to unrestricted public resale pursuant to an effective Registration Statement satisfy any condition set forth in Rule 144(i)(2) (a “Public Information Failure”) then, in addition to such Subscriberthe Investor’s other available remedies, the Company shall pay to a Subscriberthe 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 SecuritiesShares, an amount in cash equal to one two percent (1.02.0%) of the aggregate value product of (x) the Preferred Stock (based on the price per share paid largest number of Shares held by the Subscribers) held by such Subscriber 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 and (b) such time that such public information is no longer required for the Purchasers Investor to transfer the Underlying Shares pursuant to Rule 144. The payments to which a Subscriber the Investor shall be entitled pursuant to this Section 5.3 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 1.5% 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 Subscriber 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 six months after from the Closing Date 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 Securities 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 Underlying Shares are not then subject Company shall fail to unrestricted public resale pursuant to an effective Registration Statement satisfy any condition set forth in Rule 144(i)(2) (a “Public Information Failure”) then, in addition to such SubscriberPurchaser’s other available remedies, the Company shall pay to a SubscriberPurchaser, 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 SecuritiesShares, an amount in cash equal to one percent (1.0%) of the aggregate value Subscription Amount of the Preferred Stock (based on the price per share paid such Purchaser’s Shares then held by the Subscribers) held by such Subscriber 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 Underlying Shares pursuant to Rule 144. The payments to which a Subscriber Purchaser shall be entitled pursuant to this Section 5.3 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 1.51.0% 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 Subscriber 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 six months after (6) month anniversary of the Closing Date date hereof and ending at such time that all of the 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 Underlying Shares are not then subject Company shall fail to unrestricted public resale pursuant to an effective Registration Statement satisfy any condition set forth in Rule 144(i)(2) (a “Public Information Failure”) then, in addition to such SubscriberPurchaser’s other available remedies, the Company shall pay to a SubscriberPurchaser, 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 Securities, an amount in cash equal to one two percent (1.02.0%) of the aggregate value Subscription Amount of the Preferred Stock (based on the price per share paid by the Subscribers) held by such Subscriber Purchaser’s 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 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 Subscriber Purchaser shall be entitled pursuant to this Section 5.3 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 1.5% 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 Subscriber 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 six months after on the Closing Date date hereof and ending at such time that the Lender has resold all of the 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 144Conversion Shares, if the Company shall fail for any reason to satisfy the current public information requirement under Rule 144(c) and or the Underlying Shares are not then subject to unrestricted public resale pursuant to an effective Registration Statement requirements of Rule 144(i)(2) (a “Public Information Failure”) then, in addition to such Subscriberthe Lender’s other available remedies, the Company Issuers shall pay to a Subscriberthe Lender, 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 SecuritiesConversion Shares, an amount in cash equal to one percent (1.0%) 0.075% of the aggregate value original principal amount of the Preferred Stock (based on the price per share paid by the Subscribers) held by such Subscriber New Note on the day of a Public Information Failure and such amount on every thirtieth (30th) each day (pro-rated for periods totaling less than thirty days) thereafter until the earlier of (a) the date such Public Information Failure is cured and (b) such time that such public information is no longer required for the Purchasers to transfer the Underlying Shares pursuant to Rule 144cured. The payments to which a Subscriber the Lender shall be entitled pursuant to this Section 5.3 4.03 are referred to herein as “Public Information Failure Payments.”. For purposes hereof, a “Public Information Failure” shall be deemed to have occurred and be continuing during any Rule 12b-25 extension period for any annual, quarterly or other report required to be filed by the Company with the SEC. 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 (as defined in the New Note) after the event or failure giving rise to the Public Information Failure Payments is cured. In the event the Company fails Issuers fail to make Public Information Failure Payments in a timely manner, such Public Information Failure Payments shall bear interest at the rate of 1.5% per month (prorated for partial months) until paid in full. Nothing herein shall limit such Purchaserthe Lender’s right to pursue actual damages for the Public Information Failure, and such Subscriber the Lender 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 six months after from the Closing Date date hereof and ending at such time that all of the Securities 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 shall fail for any reason to satisfy the current public information requirement under Rule 144(c) and the Underlying Shares are not then subject to unrestricted public resale pursuant to an effective Registration Statement (a “Public Information Failure”) then, in addition to such Subscriberthe Holder’s other available remedies, the Company shall pay to a SubscriberHolder, 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 SecuritiesUnderlying Shares, an amount in cash equal to one two percent (1.02.0%) of the aggregate value principal amount of Exchange Note of the Preferred Stock (based on the price per share paid by the Subscribers) held by such Subscriber Holder’s 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 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 Subscriber Holder shall be entitled pursuant to this Section 5.3 4.3(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 1.5% 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 Subscriber 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 the period commencing from the six months after (6) month anniversary of the Closing Date date hereof and ending at such time that all of the Securities 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 (i) a Registration Statement (as defined in the Registration Rights Agreement) is not then effective and (ii) the Company shall fail for any reason to satisfy the current public information requirement under Rule 144(c) and the Underlying Shares are not then subject to unrestricted public resale pursuant to an effective Registration Statement (a “Public Information Failure”) then, in addition to such SubscriberInvestor’s other available remedies, the Company shall pay to a Subscriberan 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 SecuritiesShares, an amount in cash equal to one percent (1.0%) of the aggregate value subscription amount of the Preferred Stock (based on the price per share paid by the Subscribers) held by such Subscriber Investor’s Shares 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 and (b) such time that such public information is no longer required for the Purchasers Investors to transfer the Underlying Shares pursuant to Rule 144. The payments to which a Subscriber an Investor shall be entitled pursuant to this Section 5.3 5.6 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 Trading 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 1.5% per month (prorated for partial months) until paid in full. Nothing herein shall limit such PurchaserInvestor’s right to pursue actual damages for the Public Information Failure, and such Subscriber 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. The parties agree that in no event will the Company be liable for liquidated damages under this Agreement in excess of 1.0% of the aggregate Investment Amount of the Investors in any 30-day period and the maximum aggregate liquidated damages payable to an Investor under this Agreement shall be ten percent (10%) of the aggregate Investment Amount paid by such Investor pursuant to this Agreement.

Public Information Failure. At any time during the period commencing six months after from 30 days following the Closing Date date hereof and ending at such time that all of the Securities 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 Underlying Shares are not then subject Company shall fail to unrestricted public resale pursuant to an effective Registration Statement satisfy any condition set forth in Rule 144(i)(2) (a “Public Information Failure”) then, in addition to such Subscriberthe Holder’s other available remedies, the Company shall pay to a Subscriberthe 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 SecuritiesExchange Shares and New Warrant Shares, an amount in cash equal to one two percent (1.02.0%) of the aggregate value of the Preferred Stock Exchange Shares and New Warrant Shares issued and issuable to the Holder that have not been sold or otherwise disposed of by the Holder (value based on the price per share paid by average of the SubscribersVWAPs during the 22 trading days immediately prior to the date in question less, as to the New Warrant Shares, the then Exercise Price) held by 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 and cured, (b) such time that such public information is no longer required for the Purchasers Holders to transfer the Underlying 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 Subscriber Holder shall be entitled pursuant to this Section 5.3 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 1.5% 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 Subscriber 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 the period commencing the six months after (6) month anniversary of the First Closing Date date and ending at such time that all of the Securities 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 shall fail for any reason or no reason to satisfy the current public information requirement under Rule 144(c) and the Underlying Shares are not then subject to unrestricted public resale pursuant to an effective Registration Statement (a ““ Public Information FailureFailure ”) then, in addition to such Subscriber’s other available remedies, the Company shall pay to a Subscriber, 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 SecuritiesUnderlying 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 value of the Preferred Stock (based on the price per share paid by the Subscribers) held by such Subscriber 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 and (bii) 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 Subscriber holder shall be entitled pursuant to this Section 5.3 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 the rate of 1.5% per month (prorated for partial months) until paid in full. Nothing herein shall limit such Purchaser’s right be required to pursue actual damages for the Public Information Failure, and be made to any such Subscriber shall have who is an officer, director or 10% shareholder of 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.Company. _________________________