Failure Payments. The Company understands that any Event of Failure (as defined above) could result in economic loss to the Holder. In the event that any Event of Failure occurs, as compensation to the Holder for such loss, the Company agrees to pay (as liquidated damages and not as a penalty) to the Holder payments (“Failure Payments”) at a rate of 18% per annum (or the maximum rate permitted by applicable law, whichever is less) of the Black-Scholes value (as defined below) of the remaining unexercised portion of this Warrant on the date of such request (as recalculated on the first business day of each month thereafter for as long as Failure Payments shall continue to accrue), which shall accrue daily from the date of such Event of Failure through and including the date of payment in full. The Company shall pay any payments incurred under this Section in cash or cash equivalent upon demand or, if not demanded sooner, within five business (5) days of the end of each calendar month. Failure Payments are in addition to any Shares that the Holder is entitled to receive upon Exercise of this Warrant. Notwithstanding anything to the contrary herein, to the extent that any Failure Payments accrue solely as a result of a Registration Failure for failure to obtain timely initial effectiveness of the Registration Statement (“INITIAL EFFECTIVENESS FAILURE PAYMENTS”), such Initial Effectiveness Failure Payments shall cease to accrue at any time when the Holder is eligible, in the Company’s reasonable opinion, to resell the shares that would be issuable upon a Cashless Exercise of its Warrant, pursuant to Rule 144, subject to the volume limitations of such Rule. For purposes hereof, the “Black-Scholes” value of a Warrant shall be determined by use of the Black Scholes Option Pricing Model reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of this Warrant as of such date of request and (B) an expected volatility equal to the greater of 60% and the 100 day volatility obtained from the HVT function on Bloomberg.
Failure Payments. The Company understands that any Event of Failure (as defined above) could result in economic loss to the Holder. In the event that any Event of Failure occurs, as compensation to the Holder for such loss, the Company agrees to pay (as liquidated damages and not as a penalty) to the Holder payments (“Failure Payments”) at a rate of 18% per annum (or the maximum rate permitted by applicable law, whichever is less) of the Black-Scholes value (as defined below) of the remaining unexercised portion of this Warrant on the date of such request (as recalculated on the first business day of each month thereafter for as long as Failure Payments shall continue to accrue), which shall accrue daily from the date of such Event of Failure through and including the date of payment in full (with an aggregate cap equal to 9% of the Black-Scholes value of the remaining unexercised portion of this Warrant). The Company shall pay any payments incurred under this Section in cash or cash equivalent upon demand or, if not demanded sooner, within five business (5) days of the end of each calendar month. Failure Payments are in addition to any Shares that the Holder is entitled to receive upon exercise of this Warrant. For purposes hereof, the “Black-Scholes” value of a Warrant shall be determined by use of the Black Scholes Option Pricing Model reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of this Warrant as of such date of request and (B) an expected volatility equal to the greater of 60% and the 100 day volatility obtained from the HVT function on Bloomberg.
Failure Payments. The Company understands that any Registration Failure (as defined above) could result in economic loss to a Stockholder. In the event that any Registration Failure occurs, as compensation to each stockholder for such loss, the Company agrees to pay (as liquidated damages and not as a penalty) to the Stockholder an amount payable, at the Company’s option, either (i) in cash equal to 2% of the aggregate purchase price paid by each Stockholder pursuant to the Stock Purchase Agreement for any Registrable Securities then held by each Stockholder on the date of such Registration Failure or (ii) in shares of Common Stock valued at the Volume Weighted Average Price (as defined in the Warrant) on the date of such calculation equal to 3% of the aggregate purchase price paid by each Stockholder pursuant to the Stock Purchase Agreement for any Registrable Securities then held by each Stockholder on the date of such Registration Failure, in each case as recalculated on the first business day of each month thereafter for as long as Failure Payments shall continue to accrue, which shall accrue daily from the date of such Registration Failure until the Registration Failure is cured, accruing daily and compounded monthly.
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 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.
Failure Payments. The Company understands that any Event of Failure (as defined above) could result in economic loss to the Holder. In the event that any Event of Failure occurs, as compensation to the Holder for such loss, the Company agrees to pay (as liquidated damages and not as a penalty) to the Holder an amount of cash determined in accordance with this Section 10(b) (the “Failure Payments”). For purposes of clarification, it is agreed and understood that Failure Payments shall continue to accrue following any Event of Failure until all Failure Payments in respect of such Event of Failure are paid in full. Upon any Registration Failure, in addition to all other available remedies that the Holder may pursue hereunder and under the Exchange Agreement, the Company shall pay additional damages to the Holder as set forth in the Registration Rights Agreement.
