AND THE HOLDER 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 (B) THE
REGISTRATION STATEMENT IS NOT DECLARED EFFECTIVE BY THE SEC ON OR PRIOR TO THE
EFFECTIVENESS DATE, OR (C) THE ISSUER FAILS TO FILE WITH THE SEC A REQUEST FOR
ACCELERATION IN ACCORDANCE WITH RULE 461 PROMULGATED UNDER THE SECURITIES ACT
WITHIN THREE (3) BUSINESS DAYS OF THE DATE THAT THE ISSUER IS NOTIFIED (ORALLY
OR IN WRITING, WHICHEVER IS EARLIER) BY THE SEC THAT A REGISTRATION STATEMENT
WILL NOT BE "REVIEWED," OR NOT SUBJECT TO FURTHER REVIEW, OR (D) THE
REGISTRATION STATEMENT IS FILED WITH AND DECLARED EFFECTIVE BY THE SEC BUT
THEREAFTER CEASES TO BE EFFECTIVE AT ANY TIME PRIOR TO THE EXPIRATION OF THE
EFFECTIVENESS PERIOD, OR (E) TRADING IN THE COMMON STOCK SHALL BE SUSPENDED OR
IF THE COMMON STOCK IS NO LONGER QUOTED ON OR DELISTED FROM THE PRINCIPAL
EXCHANGE ON WHICH THE COMMON STOCK IS THEN TRADED FOR ANY REASON FOR MORE THAN
THREE (3) BUSINESS DAYS IN THE AGGREGATE (ANY SUCH FAILURE OR BREACH BEING
REFERRED TO AS AN "EVENT," AND FOR PURPOSES OF CLAUSES (A) AND (B) THE DATE ON
WHICH SUCH EVENT OCCURS, OR FOR PURPOSES OF CLAUSE (C) THE DATE ON WHICH SUCH
THREE (3) BUSINESS DAY PERIOD IS EXCEEDED, OR FOR PURPOSES OF CLAUSE (D) AFTER
MORE THAN FIFTEEN (15) BUSINESS DAYS, OR FOR PURPOSES OF CLAUSE (E) THE DATE ON
WHICH SUCH THREE (3) BUSINESS DAY PERIOD IS EXCEEDED, BEING REFERRED TO AS
"EVENT DATE"), THE ISSUER SHALL PAY AN AMOUNT AS LIQUIDATED
9
DAMAGES TO THE HOLDER, PAYABLE IN CASH, EQUAL TO ONE AND ONE-HALF PERCENT (1.5%)
OF THE AGGREGATE WARRANT PRICE PAID PURSUANT TO THE EXERCISE OF THIS WARRANT FOR
EACH CALENDAR MONTH OR PORTION THEREOF THEREAFTER FROM THE EVENT DATE UNTIL THE
APPLICABLE EVENT IS CURED; PROVIDED, HOWEVER, THAT IN NO EVENT SHALL THE AMOUNT
OF LIQUIDATED DAMAGES PAYABLE AT ANY TIME AND FROM TIME TO TIME TO ANY HOLDER
PURSUANT TO THIS SECTION 13(D) EXCEED AN AGGREGATE OF FIFTEEN PERCENT (15%) OF
THE AGGREGATE WARRANT PRICE PAID PURSUANT TO THE EXERCISE OF THIS WARRANT.
LIQUIDATED DAMAGES PAYABLE BY THE ISSUER PURSUANT TO THIS SECTION 13(D) SHALL BE
PAYABLE ON THE FIRST (1ST) BUSINESS DAY OF EACH THIRTY (30) DAY PERIOD FOLLOWING
THE EVENT DATE.
(E)
THE RIGHTS CONTAINED IN THIS SECTION 14 SHALL SURVIVE THE
EXPIRATION OR TERMINATION OF THIS WARRANT.
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10
IN WITNESS WHEREOF, the Issuer has executed this Series A-2 Warrant as of the
day and year first above written.
NASCENT WINE COMPANY, INC.
By:
Name:
Title:
11
EXERCISE FORM
SERIES A-2 WARRANT
NASCENT WINE COMPANY, INC.
The undersigned
, pursuant to the provisions of the
within Warrant, hereby elects to purchase
shares of Series A Preferred
Stock of Nascent Wine Company, Inc. covered by