Failure to File Registration Statement. If a Registration Event occurs, then the Company will make payments to each Purchaser and SMH (to the extent that it has exercised the Warrant)(a "QUALIFIED Purchaser"), as partial liquidated damages for the minimum amount of damages to the Qualified Purchaser by reason thereof, and not as a penalty, at a rate equal to one percent (1%) of the Offering Price per share of Preferred Stock or, with respect to SMH, one tenth of one percent (0.1%) of the Offering Price for each share of Common Stock acquired upon exercise of the Warrant, held by such Qualified Purchaser per month, for each calendar month of the Registration Default Period (pro rated for any period less than 30 days); provided, however, if a Registration Event occurs (or is continuing) on a date more than one-year after the Qualified Purchaser acquired the Registrable Securities (and thus the one-year holding period under Rule 144(d) has elapsed), liquidated damages shall be paid only with respect to that portion of a Qualified Purchaser's Registrable Securities that cannot then be immediately resold in reliance on Rule 144. Each such payment shall be due and payable within five days after the end of each calendar month of the Registration Default Period until the termination of the Registration Default Period and within five days after such termination. Such payments shall be in partial compensation to the Qualified Purchaser, and shall not constitute the Qualified Purchaser's exclusive remedy for such events. The Registration Default Period shall terminate upon (i) the filing of the Registration Statement in the case of clause (a) of the definition of "Registration Event," (ii) the SEC Effective Date in the case of clause (b) of the definition of "Registration Event," (iii) the ability of the Qualified Purchaser to effect sales pursuant to the Registration Statement in the case of clause (c) of the definition of "Registration Event," (iv) the listing or inclusion and/or trading of the Common Stock on an Approved Market, as the case may be, in the case of clause (d) of the definition of "Registration Event," and (v) in the case of the events described in clauses (b) and (c) of the definition of "Registration Event," the earlier termination of the Registration Default Period. The amounts payable as partial liquidated damages pursuant to this paragraph shall be payable in lawful money of the United States. Amounts payable as partial liquidated damages to each Qualified Purchaser hereunder with res...
Failure to File Registration Statement. The Company hereby agrees that in the event it either refuses to file or fails to file the registration statement specified in this Section 6, then the Investor shall be due liquidated damages in the amount of the greater of i) One Million Dollars ($1,000,000) or ii) the combined market value of the common shares held by the Investor, plus the market value of the shares from the unexercised warrants minus the value of the exercise price.
Failure to File Registration Statement. The Company and the Selling Stockholders agree that the Selling Stockholders may suffer damages if the Registration Statement is not filed on or prior to the Target Filing Date and maintained in the manner contemplated herein. The Company and the Selling Stockholders further agree that it would not be feasible to ascertain the extent of such damages with precision. Accordingly, if the Registration Statement is not filed on or prior to the Target Filing Date, the Company shall pay in cash or in shares of Common Stock (at the Holder's option) as liquidated damages for such failure and not as a penalty to the Selling Stockholders, a one-time fee equal to $20,000 and an additional fee of $10,000 at the end of each subsequent month during which the Registration Statement is not filed (collectively, the "Late Filing Damages"). Any payments to be made to the Selling Stockholders pursuant to this Section 7.4(a) shall be due and payable within 5 business days of any demand therefor by the Selling Stockholders. The parties agree that the Late Filing Damages represent 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 Selling Stockholders if the Registration Statement is not filed on or prior to the Target Filing Date. If the Holder elects to receive payment of the Late Filing Damages in shares of Common Stock, such shares of Common Stock shall be valued at their Fair Market Value on the date of demand of such Late Filing Damages.
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. The Company and the Holders further agree that it would not be feasible to ascertain the extent of such damages with precision. Accordingly, if the Registration Statement is not filed on or prior to the Filing Date (any such failure or breach being referred to as an "Event," and the date on which such Event occurs, being referred to as "Event Date"), the Company shall pay an amount as liquidated damages to each Holder, payable in cash equal to .025% for each day of the Holder's initial investment in the Shares from the Event Date until the Event is cured.
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 co...
Failure to File Registration Statement. The Company and the Investor agree that the Investor will suffer damages if the Registration Statement is not filed on or prior to the Target Filing Date and maintained in the manner contemplated herein during the Effectiveness Period. The Company and the Investor further agree that it would not be feasible to ascertain the extent of such damages with precision. Accordingly, if the Registration Statement is not filed on or prior to the Target Filing Date, the Company shall pay in cash or in shares of Common Stock (at the Company's option) as liquidated damages for such failure and not as a penalty to the Investor an amount equal to two percent (2%) of the purchase price the Investor paid for the Shares and Warrants purchased pursuant to the Purchase Agreement (the "PURCHASE PRICE") for each 30-day period until the Registration Statement has been filed with the Commission, which shall be pro rated for such periods less than 30 days (the "LATE FILING DAMAGES"). Payments to be made to the Investor pursuant to this Section 9 shall be due and payable within 5 business days of any demand therefor by the Investor, but in no event more than once during any 30-day period. The parties agree that the Late Filing Damages represent 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 Investor if the Registration Statement is not filed on or prior to the Target Filing Date. If the Company elects to pay the Late Filing Damages in shares of Common Stock, such shares of Common Stock shall be valued at the average closing price of a share of Common Stock on the applicable trading market for the Common Stock for the 5-trading-day period immediately preceding the date of demand of such Late Filing Damages.
Failure to File Registration Statement. In the event that a Registration Statement is not filed within 20 days following each issuance of the Redeemable Convertible Notes (the "Purchase Date"), the Company will pay a penalty in cash pro rata to the Subscribers in the amount of two percent of the Penalty Amount (as defined below) and an additional penalty of two percent in cash at the end of each 30 day period thereafter until the Registration Statement is filed with the SEC (pro-rated for each period less than 30 days).
Failure to File Registration Statement. Holdings shall fail to use best efforts to file the Registration Statement prior to 5:30pm Eastern Standard Time on the first Business Day after the Funding Date (or if such filing has not occurred by such deadline, as soon as practicable thereafter). THEN, (1) in the case of any Event of Default described in Section 8.1(f) or 8.1(g) with respect to a Borrower, automatically, and (2) in the case of any other Event of Default, upon notice to Administrative Borrower by Administrative Agent (which may be given at its election or at the direction of the Requisite Lenders) with respect to any of all of the following, (A) the Commitments, if any, of each Lender having such Commitments shall immediately terminate; (B) each of the following shall immediately become due and payable, in each case without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by each Credit Party: (I) accrued interest on the Loans, (II) the Make-Whole Amount, and (III) all other Obligations; and (C) subject to the provisions of the Intercreditor Agreement Administrative Agent may cause Collateral Agent to enforce any and all Liens and security interests created pursuant to Collateral Documents.
Failure to File Registration Statement. If the Borrower shall fail to file a registration statement as required under Section 4(q) of the Purchase Agreement. UPON THE OCCURRENCE OF ANY EVENT OF DEFAULT SPECIFIED IN SECTION 3 OF THIS NOTE, THE NOTE SHALL BECOME IMMEDIATELY AND AUTOMATICALLY DUE AND PAYABLE WITHOUT DEMAND, PRESENTMENT, OR NOTICE AND THE BORROWER SHALL PAY TO THE HOLDER, IN FULL SATISFACTION OF ITS OBLIGATIONS HEREUNDER, AN AMOUNT EQUAL TO: (A) IN THE EVENT OF AN OCCURRENCE OF ANY EVENT OF DEFAULT SPECIFIED IN OF SECTION 3.2, 3.9, 3.10, 3.16, 3.17, 3.19, 3.20, 3.22, 3.23 OR 3.24, the then outstanding principal amount of this Note plus (x) accrued and unpaid interest on the unpaid principal amount of this Note to the date of payment (the “Mandatory Prepayment Date”) plus (y) Default Interest, if any, on the amounts referred to in clauses (w) and/or (x) plus (z) any amounts owed to the Holder pursuant to Sections 1.3 and 1.4(g) hereof, MULTIPLIED BY two (2); OR (B) IN THE EVENT OF THE OCCURRENCE OF ANY EVENT OF DEFAULT SPECIFIED IN ANY OTHER SECTION, the then outstanding principal amount of this Note plus (x) accrued and unpaid interest on the unpaid principal amount of this Note to the Mandatory Prepayment Date, plus (y) Default Interest, if any, on the amounts referred to in clauses (w) and/or (x) plus (z) any amounts owed to the Holder pursuant to Sections 1.3 and 1.4(g) hereof (the then outstanding principal amount of this Note to the date of payment plus the amounts referred to in clauses (x), (y) and (z) shall collectively be known as the “Default Sum”) or (ii) at the option of the Holder, the “parity value” of the Default Sum to be prepaid, where parity value means (a) the highest number of shares of Common Stock issuable upon conversion of or otherwise pursuant to such Default Sum in accordance with Article I, treating the Trading Day immediately preceding the Mandatory Prepayment Date as the “Conversion Date” for purposes of determining the lowest applicable Conversion Price, unless the Default Event arises as a result of a breach in respect of a specific Conversion Date in which case such Conversion Date shall be the Conversion Date), multiplied by (b) the highest trading price for the Common Stock during the period beginning on the date of first occurrence of the Event of Default and ending one day prior to the Mandatory Prepayment Date (the “Default Amount”) and all other amounts payable hereunder shall immediately become due and payable, all without demand, presentment o...
Failure to File Registration Statement. If a Registration Statement including the Parent Exchange Shares in full and complete conformity with the requirements of Section 5(q) is not filed and accepted by SEC so as to make the Parent Exchange Shares legally saleable in all U.S. jurisdictions under all applicable securities laws in accordance with the schedule set forth in Section 5(q), then at the option of a majority in interest of the Target Stockholders and at the expense of the Parent, the Closing shall be nullified and rescinded and the Target shall revert to the Target Stockholders and the Parent Exchange Shares shall revert to the Parent.
