Investment Amount Limitation. On each Draw Down Date, the Investment Amount specified in the applicable Draw Down Notice may not exceed the dollar amount which would result in a number of Draw Down Shares then to be purchased by the Investor (for purposes of this Section 6.02(k), assuming that such number of Draw Down Shares to be issued pursuant to such Draw Down Notice equals the Investment Amount specified in such Draw Down Notice, divided by the Floor Price) which would cause the Investor not to satisfy the conditions set forth in the following two sentences. Notwithstanding any other provision of this Agreement, the aggregate number of Common Shares issuable to the Investor in respect of a Draw Down, together with the shares of Common Stock then beneficially owned (as defined in the Exchange Act) by the Investor and its affiliates (excluding shares of Common Stock otherwise deemed beneficially owned as a result of the convertibility of the shares of the Series B Convertible Preferred Stock held by the Investor or its affiliates), shall not exceed 4.9% of the total outstanding shares of Common Stock as of such date (the "4.9% Limitation"). In addition, notwithstanding any other provision of this Agreement during any consecutive 61-day period the Investor (together with its affiliates) may not be issued Common Shares to the extent such purchase, when combined with prior conversions of the Investor's shares of the Company's Series B Convertible Preferred Stock or exercises of its warrants to purchase the Company's Common Stock would in the aggregate exceed a number of shares of Common Stock exceeding 9.9% of the Company's issued and outstanding shares of Common Stock as of the first of such 61-day period nor may the Investor sell shares of Common Stock (whether acquired upon conversion of the Series B Convertible Preferred Stock, exercise of warrants, pursuant to this Agreement or otherwise in excess of 9.9% of the Company's issued and outstanding shares of Common Stock as of the first day of such 61-day period (the "9.9% Limitation"). The foregoing limitations may not be waived, amended or modified. The Company shall have no obligation to monitor compliance with the foregoing limitations. In the event the issuance of the full number of Common Shares pursuant to a Draw Down Notice (assuming the Common Shares were to issued based on the Floor Price specified in such Draw Down Notice) would cause the Investor to be in violation of the foregoing limitations, the Investor shall within one Business Day of receiving such Draw Down Notice notify the Company and on the Settlement Date, the Investor shall only be required to purchase such number of Common Shares (pro rated over the Valuation Period) which would not cause the Investor to be in violation of such limitations. In the event that as a result of the foregoing, the Investor shall not purchase Common Shares for the entire Investment Amount specified in such Draw Down Notice, the Investor shall be required to pay the Company as liquidated damages an amount equal to 2% of the portion of the Investment Amount not paid; such liquidated damages amount shall be paid by increasing the Purchase Price on future purchases of Common Shares under this Agreement accordingly, provided that if the Company has not effectively have been paid such liquidated damages amount in full within 90 days after such obligation shall have arisen, the Investor shall, if requested by the Company, pay such amount in cash to the Company.
Appears in 1 contract
Investment Amount Limitation. On each Draw Down Date, the Investment Amount specified in the applicable Draw Down Notice may not exceed the dollar amount which would result in a number of Draw Down Shares then to be purchased by the Investor (for purposes of this Section 6.02(k), assuming that such number of Draw Down Shares to be issued pursuant to such Draw Down Notice equals the Investment Amount specified in such Draw Down Notice, divided by the Floor Price) which would cause the Investor not to satisfy the conditions set forth in the following two sentences. Notwithstanding any other provision of this Agreement, the aggregate number of Common Shares issuable to the Investor in respect of a Draw Down, together with the shares of Common Stock then beneficially owned (as defined in the Exchange Act) by the Investor and its affiliates (excluding shares of Common Stock otherwise deemed beneficially owned as a result of the convertibility of the shares of the Series B Convertible Preferred Stock held by the Investor or its affiliates), shall not exceed 4.9% of the total outstanding shares of Common Stock as of such date (the "4.9% Limitation"). In addition, notwithstanding any other provision of this Agreement during any consecutive 61-day period the Investor (together with its affiliates) may not be issued Common Shares to the extent such purchase, when combined with prior conversions of the Investor's shares of the Company's Series B Convertible Preferred Stock or exercises of its warrants to purchase the Company's Common Stock would in the aggregate exceed a number of shares of Common Stock exceeding 9.9% of the Company's issued and outstanding shares of Common Stock as of the first of such 61-day period nor may the Investor sell shares of Common Stock (whether acquired upon conversion of the Series B Convertible Preferred Stock, exercise of warrants, pursuant to this Agreement or otherwise in excess of 9.9% of the Company's issued and outstanding shares of Common Stock as of the first day of such 61-day period (the "9.9% Limitation"). The foregoing limitations may not be waived, amended or modified. The Company shall have no obligation to monitor compliance with the foregoing limitations. In the event the issuance of the full number of Common Shares pursuant to a Draw Down Notice (assuming the Common Shares were to issued based on the Floor Price specified in such Draw Down Notice) would cause the Investor to be in violation of the foregoing limitations, the Investor shall within one Business Day of receiving such Draw Down Notice notify the Company and on the Settlement Date, the Investor shall only be required to purchase such number of Common Shares (pro rated over the Valuation Period) which would not cause the Investor to be in violation of such limitations. In the event that as a result of the foregoing, the Investor shall not purchase Common Shares for the entire Investment Amount specified in such Draw Down Notice, the Investor shall be required to pay the Company as liquidated damages an amount equal to 2% of the portion of the Investment Amount not paid; such liquidated damages amount shall be paid by increasing the Purchase Price on future purchases of Common Shares under this Agreement accordingly, provided that if the Company has not effectively have been paid such liquidated damages amount in full within 90 days after such obligation shall have arisen, the Investor shall, if requested by the Company, pay such amount in cash to the Company.pay
Appears in 1 contract
Investment Amount Limitation. On each Draw Down Date, the Investment Amount specified in the applicable Draw Down Notice may not exceed the dollar amount which would result in a number of Draw Down Shares then to be purchased by the Investor (for purposes of this Section 6.02(k), assuming that such number of Draw Down Shares to be issued pursuant to such Draw Down Notice equals the Investment Amount specified in such Draw Down Notice, divided by the Floor Price) which would cause the Investor not to satisfy the conditions set forth in the following two sentences. Notwithstanding any other provision of this Agreement, the aggregate number of Common Shares issuable to the Investor in respect of a Draw Down, together with the shares of Common Stock then beneficially owned (as defined in the Exchange Act) by the Investor and its affiliates (excluding shares of Common Stock otherwise deemed beneficially owned as a result of the convertibility of the shares of the Series B Convertible Preferred Stock held by the Investor or its affiliates), shall not exceed 4.9% of the total outstanding shares of Common Stock as of such date (the "4.9% Limitation"). The Investor agrees promptly to notify the Company if its determines, based on its good faith estimate that the maximum number of Draw Down Shares it may be required to purchase pursuant to a Draw Down Notice (based upon the then current market price of the Common Stock and the Investor's good faith estimate of the Maximum Draw Down Amount) would cause the Investor to exceed the 4.9% Limitation. In addition, notwithstanding any other provision of this Agreement during any consecutive 61-day period the Investor (together with its affiliates) may not be issued Common Shares to the extent such purchase, when combined with prior conversions of the Investor's shares of the Company's Series B Convertible Preferred Stock or exercises of its warrants to purchase the Company's Common Stock would in the aggregate exceed a number of shares of Common Stock exceeding 9.9% of the Company's issued and outstanding shares of Common Stock as of the first of such 61-day period nor may the Investor sell shares of Common Stock (whether acquired upon conversion of the Series B Convertible Preferred Stock, exercise of warrants, acquired) pursuant to this Agreement or otherwise otherwise) in excess of 9.9% of the Company's issued and outstanding shares of Common Stock as of the first day of such 61-day period (the "9.9% Limitation"). The foregoing limitations may not be waived, amended or modified. The Company shall have no obligation to monitor compliance with the foregoing limitations. In the event the issuance of the full number of Common Shares pursuant to a Draw Down Notice (assuming the Common Shares were to be issued based on the Floor Price specified in such Draw Down Notice) would cause the Investor to be in violation of the foregoing limitations, the Investor shall within one Business Day of receiving such Draw Down Notice notify the Company and on the Settlement Date, the Investor shall only be required to purchase such number of Common Shares (pro rated over the Valuation Period) which would not cause the Investor to be in violation of such limitations. In the event that as a result of the foregoing, the Investor shall not purchase Common Shares for the entire Investment Amount specified in such Draw Down Notice, the Investor shall be required to pay the Company as liquidated damages an amount equal to 2% of the portion of the Investment Amount not paid; such liquidated damages amount shall be paid by increasing the Purchase Price on future purchases of Common Shares under this Agreement accordingly, provided that if the Company has not effectively have been paid such liquidated damages amount in full within 90 days after such obligation shall have arisen, the Investor shall, if requested by the Company, pay such amount in cash to the Company.
Appears in 1 contract
Investment Amount Limitation. On each Draw Down Date, the Investment Amount specified in the applicable Draw Down Notice may not exceed the dollar amount which would result in a number of Draw Down Shares then to be purchased by the Investor (for purposes of this Section 6.02(k), assuming that such number of Draw Down Shares to be issued pursuant to such Draw Down Notice equals the Investment Amount specified in such Draw Down Notice, divided by the Floor Price) which would cause the Investor not to satisfy the conditions set forth in the following two sentences. Notwithstanding any other provision of this Agreement, the aggregate number of Common Shares issuable to the Investor in respect of a 21 23 Draw Down, together with the shares of Common Stock then beneficially owned (as defined in the Exchange Act) by the Investor and its affiliates (excluding shares of Common Stock otherwise deemed beneficially owned as a result of the convertibility of the shares of the Series B Convertible Preferred Stock held by the Investor or its affiliates), shall not exceed 4.9% of the total outstanding shares of Common Stock as of such date (the "4.9% Limitation"). The Investor agrees promptly to notify the Company if its determines, based on its good faith estimate that the maximum number of Draw Down Shares it may be required to purchase pursuant to a Draw Down Notice (based upon the then current market price of the Common Stock and the Investor's good faith estimate of the Maximum Draw Down Amount) would cause the Investor to exceed the 4.9% Limitation. In addition, notwithstanding any other provision of this Agreement during any consecutive 61-day period the Investor (together with its affiliates) may not be issued Common Shares to the extent such purchase, when combined with prior conversions of the Investor's shares of the Company's Series B Convertible Preferred Stock or exercises of its warrants to purchase the Company's Common Stock would in the aggregate exceed a number of shares of Common Stock exceeding 9.9% of the Company's issued and outstanding shares of Common Stock as of the first of such 61-day period nor may the Investor sell shares of Common Stock (whether acquired upon conversion of the Series B Convertible Preferred Stock, exercise of warrants, acquired) pursuant to this Agreement or otherwise otherwise) in excess of 9.9% of the Company's issued and outstanding shares of Common Stock as of the first day of such 61-day period (the "9.9% Limitation"). The foregoing limitations may not be waived, amended or modified. The Company shall have no obligation to monitor compliance with the foregoing limitations. In the event the issuance of the full number of Common Shares pursuant to a Draw Down Notice (assuming the Common Shares were to be issued based on the Floor Price specified in such Draw Down Notice) would cause the Investor to be in violation of the foregoing limitations, the Investor shall within one Business Day of receiving such Draw Down Notice notify the Company and on the Settlement Date, the Investor shall only be required to purchase such number of Common Shares (pro rated over the Valuation Period) which would not cause the Investor to be in violation of such limitations. In the event that as a result of the foregoing, the Investor shall not purchase Common Shares for the entire Investment Amount specified in such Draw Down Notice, the Investor shall be required to pay the Company as liquidated damages an amount equal to 2% of the portion of the Investment Amount not paid; such liquidated damages amount shall be paid by increasing the Purchase Price on future purchases of Common Shares under this Agreement accordingly, provided that if the Company has not effectively have been paid such liquidated damages amount in full within 90 days after such obligation shall have arisen, the Investor shall, if requested by the Company, pay such amount in cash to the Company.
Appears in 1 contract
