Common use of Effect of Failure to Obtain Effectiveness of Registration Statement Clause in Contracts

Effect of Failure to Obtain Effectiveness of Registration Statement. If the Initial Registration Statement covering all of the Registrable Securities is not declared effective by the SEC on or before the applicable Initial Effectiveness Deadline, (an “Effectiveness Failure”), then, as partial relief for the damages to any holder by reason of any such delay in or reduction of its ability to sell the underlying shares of Common Stock, the Company shall pay to each Investor an amount in cash equal to (i) five percent (5.00%) of the aggregate principal amount of such Investor’s Notes, payable on the next regularly scheduled interest payment date following an Effectiveness Failure, and (ii) an additional payment of one half of one percent (0.50%) for each period of thirty (30) days following an Effectiveness Failure (pro rated for periods totaling less than thirty days), payable on the next regularly scheduled interest payment date following the thirtieth day following the date of an Effectiveness Failure and every thirtieth day thereafter until such Effectiveness Failure is cured. Notwithstanding anything to the contrary contained herein, (i) no Registration Delay Payment (a “Registration Delay Payment”) shall be payable with respect to any Notes which shall not have been issued or no longer outstanding as of the date on which the computation is being made and (ii) if an Investor would be required to be named as an “underwriter” in the Registration Statement by the SEC and such Investor elects, pursuant to Section 3(r) below not to include any Registrable Securities of such Investor in the Registration Statement, no Registration Delay Payments shall accrue with respect to such Registrable Securities of such Investor.

Effect of Failure to Obtain Effectiveness of Registration Statement. If the Initial A Registration Statement covering all of the Registrable Securities is not applicable Required Registration Amount shall be (A) filed with the SEC on or before the respective Filing Deadline and (B) declared effective by the SEC on or before thirty (30) calendar days after the applicable Initial respective Effectiveness Deadline, (a failure for a Registration Statement to be declared effective by such date shall be an “Effectiveness Failure”). Upon (i) an Effectiveness Failure or (ii) on any day after the respective Effective Date sales of all of the Registrable Securities required to be included on such Registration Statement cannot be made (other than during an Allowable Grace Period (as defined in Section 3(r)) pursuant to such Registration Statement or because of the suspension of trading or any other limitation imposed by an Eligible Market, a failure to keep such Registration Statement effective, a failure to disclose such information as is necessary for sales to be made pursuant to such Registration Statement, a failure to register a sufficient number of shares of Common Stock or a failure to maintain the listing of the Common Stock) (a “Maintenance Failure”) then, as partial relief the sole monetary remedy for the damages to any holder by reason of any such delay in or reduction of its ability to sell the underlying shares of Common StockStock (which remedy shall not be exclusive of any other remedies available in equity, including, without limitation, specific performance), (A) the Company shall pay to each Investor holder of Registrable Securities, other than Xx. Xxxxxx, relating to such Registration Statement an amount in cash equal to (i) five one percent (5.001.0%) of the aggregate principal amount Purchase Price (as such term is defined in the Securities Purchase Agreement) of such Investor’s Notes, payable Registrable Securities included in such Registration Statement on each of the next regularly scheduled interest payment date following dates: (i) the day of an Effectiveness Failure, ; and (ii) the initial day of a Maintenance Failure; and (B) the Company shall pay to each holder of Registrable Securities, other than Xx. Xxxxxx, relating to such Registration Statement an additional payment of one half of amount in cash equal to one percent (0.501.0%) for of the aggregate Purchase Price of such Investor’s Registrable Securities included in such Registration Statement on each period of thirty the following dates: (30i) days following an Effectiveness Failure (pro rated for periods totaling less than thirty days), payable on the next regularly scheduled interest payment date following the thirtieth day following after the date of an Effectiveness Failure and every thirtieth day thereafter (pro rated for periods totaling less than thirty days) until such Effectiveness Failure is cured. Notwithstanding anything to ; and (ii) on the contrary contained hereinthirtieth day after the date of a Maintenance Failure and every thirtieth day thereafter (pro rated for periods totaling less than thirty days) until such Maintenance Failure is cured provided, however, that (i) no the Company shall not be liable for Registration Delay Payment (a “Registration Delay Payment”) shall be payable Payments to any Investor or to Xx. Xxxxxx under this Agreement with respect to any Notes which shall not have been issued Cutback Shares that the SEC requires the Company to exclude from a Registration Statement pursuant to Rule 415 or no longer outstanding as of otherwise required by the date on which the computation is being made SEC and (ii) if an the Company shall not be liable for Registration Delay Payments or liquidated damages to any Investor would be required or to be named as an “underwriter” in the Registration Statement by the SEC and such Investor elects, pursuant Xx. Xxxxxx under this Agreement with respect to Section 3(r) below not to include any Registrable Securities of (including shares underlying the Warrant if such Investor shares may be acquired pursuant to a cashless exercise) that may be sold without restriction or limitation pursuant to Rule 144 and without the requirement to be in the compliance with Rule 144(c)(1). The payments to which a holder shall be entitled pursuant to this Section 2(g) are referred to herein as “Registration Statement, no Delay Payments.” Registration Delay Payments shall accrue with respect be paid on the earlier of (I) the dates set forth above and (II) the third Business Day after the event or failure giving rise to the Registration Delay Payments is cured. In the event the Company fails to make Registration Delay Payments in a timely manner, such Registrable Registration Delay Payments shall bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial months) until paid in full. In no event shall the Company incur Registration Delay Payments if it is simultaneously incurring Public Information Failure Payments (as defined in the Securities of such InvestorPurchase Agreement).

Effect of Failure to Obtain Effectiveness of Registration Statement. If the Initial a Registration Statement covering the resale of all of the Registrable Securities required to be covered thereby and required to be filed by the Company pursuant to this Agreement is not declared effective by the SEC on or before the applicable Initial Effectiveness Deadline, Deadline (an “Effectiveness Failure”) (it being understood that if on the Business Day immediately following the Effective Date the Company shall not have filed a “final” prospectus for such Registration Statement with the SEC under Rule 424(b) in accordance with Section 2(a) above (whether or not such a prospectus is technically required by such rule), then, as partial relief for the damages Company shall not be deemed to any holder by reason of any have satisfied this clause (i) and such delay in or reduction of its ability event shall be deemed to sell the underlying shares of Common Stockbe an Effectiveness Failure), the Company shall pay to each Investor holder of Registrable Securities relating to such Registration Statement an amount in cash equal to (i) five one percent (5.001.0%) of the aggregate principal amount Purchase Price set forth in the Securities Purchase Agreement (1) on the date of such Investor’s Notes, payable on the next regularly scheduled interest payment date following an Effectiveness Failure, Failure and (ii2) an additional payment of one half of one percent (0.50%) for each period of on every thirty (30) days following an Effectiveness Failure (pro rated for periods totaling less than thirty days), payable on the next regularly scheduled interest payment date following the thirtieth day following the date anniversary of an Effectiveness Failure and every thirtieth day thereafter until such Effectiveness Failure is cured. Notwithstanding anything The payments to which a holder shall be entitled pursuant to this Section 2(e) are referred to herein as “Registration Delay Payments.” Following the contrary contained herein, (i) no initial Registration Delay Payment for any particular event or failure (a “which shall be paid on the date of such event or failure, as set forth above), without limiting the foregoing, if an event or failure giving rise to the Registration Delay Payment”Payments is cured prior to any thirty (30) day anniversary of such event or failure, then such Registration Delay Payment shall be payable made on the third (3rd) Business Day after such cure. In the event the Company fails to make Registration Delay Payments in a timely manner in accordance with respect to any Notes which shall not have been issued or no longer outstanding as of the date on which the computation is being made and (ii) if an Investor would be required to be named as an “underwriter” in the Registration Statement by the SEC and foregoing, such Investor elects, pursuant to Section 3(r) below not to include any Registrable Securities of such Investor in the Registration Statement, no Registration Delay Payments shall accrue with respect to such Registrable Securities bear interest at the rate of such Investorone percent (1.0%) per month (prorated for partial months) until paid in full.

Effect of Failure to Obtain Effectiveness of Registration Statement. If the Initial If: (i) a Registration Statement covering all the Initial Required Registration Amount of the Registrable Securities is not declared effective by the SEC on or before the applicable Initial Effectiveness Deadline, Deadline (an the “Effectiveness Failure”), then, as partial relief for liquidated damages (and in complete satisfaction and to the damages exclusion of any claims or remedies inuring to any holder of Registrable Securities) to any holder of Registrable Securities by reason of any such delay in or reduction of its ability to sell the underlying shares of Common Stock, the Company shall pay to each Investor holder of Registrable Securities their pro rata portion (based on the amount of Registrable Securities held) of an amount in cash equal to 0.5% of the aggregate Purchase Price (as such term is defined in the Securities Purchase Agreement) paid by the applicable Investor for the Registrable Securities included in such Registration Statement on each of the following dates: (i) five percent twenty (5.00%20) days following the date of the aggregate principal amount of such Investor’s Notes, payable on the next regularly scheduled interest payment date following an Effectiveness Failure, and (ii) an additional payment on every thirtieth (30th) day after the day of one half of one percent (0.50%) for each period of thirty (30) days following an the Effectiveness Failure thereafter (pro rated for periods totaling less than thirty days), payable on ) until the next regularly scheduled interest payment date following the thirtieth day following the date of an Effectiveness Failure and every thirtieth day thereafter until such Effectiveness Failure is cured. Notwithstanding anything The payments to the contrary contained herein, (iwhich a holder of Registrable Securities shall be entitled pursuant to this Section 2(e) no Registration Delay Payment (a are referred to herein as “Registration Delay Payment”) shall be payable with respect to any Notes which shall not have been issued Payments.” Notwithstanding anything herein or no longer outstanding as of the date on which the computation is being made and (ii) if an Investor would be required to be named as an “underwriter” in the Registration Statement by Securities Purchase Agreement to the SEC and such Investor electscontrary, pursuant to Section 3(r) below not to include any Registrable Securities in no event shall the aggregate amount of such Investor in the Registration Statement, no Registration Delay Payments shall accrue with respect exceed, in the aggregate, five percent (5%) of the aggregate Purchase Price paid by all Investors pursuant to such Registrable the Securities of such InvestorPurchase Agreement.