the Purchaser via the DWAC
system within the time frame set forth in Section 9.1(b) above and the Warrant
Shares are not delivered to the Purchaser by the Delivery Date, as compensation
to the Purchaser for such loss, the Company agrees to pay late payments to the
Purchaser for late issuance of the Warrant Shares in the form required pursuant
to Section 9 hereof upon exercise of the Warrant in the amount equal to the
greater of:
(i) $500 per business day after the Delivery Date; or (ii) the
Purchaser's actual damages from such delayed delivery.
The Company shall pay
any payments incurred under this Section in immediately available funds upon
demand and, in the case of actual damages, accompanied by reasonable
documentation of the amount of such damages.
Such documentation shall show the
number of shares of Common Stock the Purchaser is forced to purchase (in an open
market transaction) which the Purchaser anticipated receiving upon such
exercise, and shall be calculated as the amount by which (A) the Purchaser's
total purchase price (including customary brokerage commissions, if any) for the
shares of Common Stock so purchased exceeds (B) the aggregate amount of the
Exercise Price for the Warrants, for which such Form of Subscription was not
timely honored.
11.
REGISTRATION RIGHTS.
11.1
REGISTRATION RIGHTS GRANTED.
THE COMPANY HEREBY GRANTS
REGISTRATION RIGHTS TO THE PURCHASER PURSUANT TO THE REGISTRATION RIGHTS
AGREEMENT.
11.2
OFFERING RESTRICTIONS.
EXCEPT AS PREVIOUSLY DISCLOSED IN THE SEC
REPORTS OR IN THE EXCHANGE ACT FILINGS, OR STOCK OR STOCK OPTIONS GRANTED TO
EMPLOYEES OR DIRECTORS OF THE COMPANY (THESE EXCEPTIONS HEREINAFTER REFERRED TO
AS THE "EXCEPTED ISSUANCES"), NEITHER THE COMPANY NOR ANY OF ITS SUBSIDIARIES
WILL, PRIOR TO THE FULL REPAYMENT OF THE NOTE (TOGETHER WITH ALL ACCRUED AND
UNPAID INTEREST AND FEES RELATED THERETO) AND THE FULL EXERCISE BY PURCHASER OF
THE WARRANTS, (X) ENTER INTO ANY EQUITY LINE OF CREDIT AGREEMENT OR SIMILAR
AGREEMENT OR (Y) ISSUE, OR ENTER INTO ANY AGREEMENT TO ISSUE, ANY SECURITIES
WITH A VARIABLE/FLOATING CONVERSION AND/OR PRICING FEATURE WHICH ARE OR COULD BE
(BY CONVERSION OR REGISTRATION) FREE-TRADING SECURITIES (I.E.
COMMON STOCK
SUBJECT TO A REGISTRATION STATEMENT).
12.
MISCELLANEOUS.
12.1
GOVERNING LAW, JURISDICTION AND WAIVER OF JURY TRIAL.
(A)
THIS AGREEMENT AND THE OTHER RELATED AGREEMENTS SHALL BE GOVERNED
BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
(B)
THE COMPANY HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL
COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK SHALL HAVE EXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE COMPANY,
ON THE ONE HAND, AND THE PURCHASER, ON THE OTHER HAND, PERTAINING
26
TO THIS AGREEMENT OR ANY OF THE RELATED AGREEMENTS OR TO ANY MATTER ARISING OUT
OF OR RELATED TO THIS AGREEMENT OR ANY OF THE OTHER RELATED AGREEMENTS;
PROVIDED, THAT THE PURCHASER AND THE