Reset. (a) The amount of Company Shares issuable to the Subscriber shall be redetermined from time to time as described herein (the "Reset") and if appropriate, additional shares of Common Stock (the "Additional Shares") will be issued and delivered to the Subscriber as provided herein. The original purchase price set forth on the signature page of this Subscription Agreement (the "Purchase Price") shall be deemed the purchase price of all the shares of Common Stock to be delivered pursuant to this Subscription Agreement. Provided the Additional Shares are issued after the effective date of the Registration Statement described in Section 10.1(iv) hereof, such Additional Shares will be free-trading on the books and records of the Company and issued without restrictive legend. (b) The Reset shall be determined on the dates identified below (each a "Reset Date") for an amount of the Purchase Price equal to not less than 10% and not more than 25% of the Purchase Price, at the Subscriber's election ("Designated Portion") per Reset Date. The initial Reset Date shall be the effective date of the Registration Statement described in Section 10.1(iv) of this Subscription Agreement or at the Subscriber's election on the 180th day after the Closing Date if the Registration Statement required to be filed pursuant to Section 10.1(iv) hereof has not been declared effective by the Securities and Exchange Commission on such date ("Trigger Date"). Subsequent Reset Dates shall be on the 30th, 60th, 90th, 120th, 150th, 180th, 210th, 240th, and 270th day following the Trigger Date. If any such date is not a trading day on the NASDAQ SmallCap Market, then the Reset Date shall be the first trading day thereafter. In the event any portion of the Common Shares comprising the Registration Escrow (as hereinafter defined) is released to the Company pursuant to Section 10.1(iv), then the aggregate Designated Portions of the Purchase Price shall not be greater than that portion of the Purchase Price set forth on the signature page to this Subscription Agreement less the corresponding amount of Purchase Price returned to the Subscriber. In no event may the aggregate Designated Portions of the Purchase Price exceed the Purchase Price. To the extent a Registration Escrow is held in escrow on a Reset Date, then such Common Shares issuable in connection with such Registration Escrow will be deposited in escrow to be held pursuant to the Funds Escrow Agreement. (c) On each Reset Date a number of Company Shares will be calculated for the Designated Portion of the Purchase Price by dividing the Designated Portion of the Purchase Price by a number equal to seventy-seven percent (77%) of the average closing bid prices for the Common Stock on the NASDAQ SmallCap Market, or on any securities exchange or other securities market on which the Common Stock is then being traded, for the five trading days immediately preceding, but not including, the Reset Date (the "Average Price"). If the Average Price is less than the Issue Price designated on the signature page hereto, then the Company will issue to the Subscriber the number of shares of Common Stock obtained by subtracting (y) the number of shares obtained by dividing the Designated Portion of Purchase Price by the Issue Price from (z) the number of shares obtained by dividing the Designated Portion of Purchase Price by the Average Price. (d) In the event the Average Price calculated on a Reset Date is more than 130% but less than 200% of the Issue Price, then 20% of the Purchase Price will no longer be subject to Reset. In the event the Average Price calculated on a Reset Date is 200% or more than the Issue Price, then 50% of the Purchase Price shall no longer be subject to Reset. (e) In no event will the Subscriber be required to return any Company Shares to the Company. Each Reset calculation shall be made independent of all other Reset calculations. (f) The Company agrees to deliver the Additional Shares to the Subscriber in hand, or Redemption Amount (as defined herein), if such payment of the Redemption Amount is permitted hereunder, no later than ten (10) business days after notice from the Subscriber of the Designated Portion amount (the "Delivery Date"). The Company understands that a delay in the delivery of either the Additional Shares or failure to deliver the Redemption Amount described in Sections 9.2 and 9.3 beyond the Delivery Date could result in economic loss to the Subscriber. As compensation to the Subscriber for such loss, the Company agrees to pay as liquidated damages payments to the Subscriber for late delivery of Additional Shares or Redemption Amount beyond the Delivery Date, in the amount of $100 per business day after the Delivery Date for each $10,000 of Designated Portion of Purchase Price for which a Reset has been calculated. Additionally, in the case of late payment of the Redemption Amount, the Company will pay on additional sum equal to 10% of the Designated Portion of the Purchase Price. The Company shall pay any payments incurred under this Section in immediately available funds upon demand. The late payment charges described in this Section 9.1(f) shall be payable through the date the Additional Shares or Redemption Amount is received in hand by the Subscriber. (g) Company Shares as defined and employed in this Subscription Agreement shall mean and include Additional Shares for all purposes including but not limited to Section 10 of this Subscription Agreement. (h) Nothing contained herein or in any document referred to herein shall be deemed to establish or require the payment of a rate of interest or other charges in excess of the maximum permitted by applicable law. In the event a rate of interest required or imputed to be paid or other charges hereunder exceed the maximum permitted by such law, any payments in excess of such maximum shall be credited against amounts owed by the Company to the Subscriber and thus refunded to the Company.
Appears in 1 contract
Reset. (a) The amount If, from the date hereof until the date that is eighteen months after the Closing Date:
(1) the Company issues or sells, or agrees to issue or sell, more than $500 million of Common Stock (or other securities that are convertible into or exchangeable or exercisable for, or are otherwise linked to, Common Stock) at a purchase (or reference, implied, conversion, exchange or comparable) price (the “New Issuance Price”) per share less than the Reference Purchase Price (a “Reset Issuance”), or
(2) there occurs any Fundamental Change in which the Underlying Security Price (together with the New Issuance Price, the “Reset Price”) is less than the Reference Purchase Price (a “Triggering Fundamental Change” and, together with a Reset Issuance, a “Reset Event”). then, on the earlier of (A) the second business day after the closing of any Reset Issuance and (B) the date of the occurrence of a Triggering Fundamental Change (or, if later, on the Closing Date, or, if later, on the second business day following the later of (x) the average price calculation specified below in this Section 4.11 and (y) the shareholder approval specified below in this Section 4.11, if and as applicable), the Company Shares issuable shall make a payment to each Investor (the “Reset Payment”), equal to the Subscriber shall be redetermined product of (i) an amount equal to the (z) Reference Purchase Price minus the Reset Price, divided by (y) the Reference Purchase Price multiplied by (ii) the aggregate amount paid by such Investor pursuant to Article I (including, (1) if any Warrant has been exercised by such Investor prior to such date, the aggregate exercise price paid by such Investor for the Warrant shares and (2) if any Warrant has been exchanged for convertible preferred stock by such Investor prior to such date, the value of Warrant as calculated pursuant to the terms of the Warrant), grossed up as required to compensate each Investor for any diminution in value in the Securities resulting from time such Reset Payment; provided that the Company may, at its option and as an alternative to time as described herein (making all or any portion of such Reset Payment, instead pay the "Reset") and if appropriate, additional Reset Payment due each Investor by delivering to such Investor shares of Common Stock valued at the lower of the Market Price of a share of Common Stock as of (x) the "Additional Shares") will be issued and delivered last trading day prior to the Subscriber as provided herein. The original purchase price set forth date on which this payment occurs or (y) the signature page first date of this Subscription Agreement (the "Purchase Price") shall be deemed announcement of the purchase price Reset Issuance or the Preliminary Fundamental Change that resulted in a Triggering Fundamental Change, but solely to the extent that any such issuance of all the shares of Common Stock would not result in (A) such Investor owning or being deemed for applicable regulatory purposes to be delivered pursuant to this Subscription Agreement. Provided the Additional Shares are issued after the effective date own 25% or more of the Registration Statement described in Section 10.1(iv) hereof, such Additional Shares will be free-trading on the books and records voting securities of the Company (or the surviving corporation resulting from such Triggering Change of Control), (B) unless the OTS shall have issued a written acceptance of a rebuttal of control submission by such Investor pursuant to 12 C.F.R. §574.4(e), such Investor owning or being deemed for applicable regulatory purposes to own 10% or more of the total number of voting securities of the Company Common Stock then outstanding (or the surviving corporation resulting from such Triggering Change of Control) or (C) the Company failing to comply with applicable New York Stock Exchange requirements or the requirement of any other Governmental Entity (provided that, in the case of this clause (C), the Company shall, at its election, have a reasonable period of time in which to seek any shareholder approval required to satisfy such requirements and issued without restrictive legendthe Company’s payment obligation pursuant hereto shall be postponed until such time as such shareholder approval shall have been obtained or denied).
(b) The Reset shall be determined on the dates identified below (each a "Reset Date") for an amount of the Purchase Price equal to not less than 10% and not more than 25% of the Purchase Price, at the Subscriber's election ("Designated Portion") per Reset Date. The initial Reset Date shall be the effective date of the Registration Statement described in Section 10.1(iv) For purposes of this Subscription Agreement or at the Subscriber's election on the 180th day after the Closing Date if the Registration Statement required to be filed pursuant to Section 10.1(iv) hereof has not been declared effective by the Securities and Exchange Commission on such date ("Trigger Date"). Subsequent Reset Dates shall be on the 30th, 60th, 90th, 120th, 150th, 180th, 210th, 240th, and 270th day following the Trigger Date. If any such date is not a trading day on the NASDAQ SmallCap Market, then the Reset Date shall be the first trading day thereafter. In the event any portion of the Common Shares comprising the Registration Escrow (as hereinafter defined) is released to the Company pursuant to Section 10.1(iv), then the aggregate Designated Portions of the Purchase Price shall not be greater than that portion of the Purchase Price set forth on the signature page to this Subscription Agreement less the corresponding amount of Purchase Price returned to the Subscriber. In no event may the aggregate Designated Portions of the Purchase Price exceed the Purchase Price. To the extent a Registration Escrow is held in escrow on a Reset Date, then such Common Shares issuable in connection with such Registration Escrow will be deposited in escrow to be held pursuant to the Funds Escrow Agreement.
(c) On each Reset Date a number of Company Shares will be calculated for the Designated Portion of the Purchase Price by dividing the Designated Portion of the Purchase Price by a number equal to seventy-seven percent (77%) of the average closing bid prices for the Common Stock on the NASDAQ SmallCap Market, or on any securities exchange or other securities market on which the Common Stock is then being traded, for the five trading days immediately preceding, but not including, the Reset Date (the "Average Price"). If the Average Price is less than the Issue Price designated on the signature page hereto, then the Company will issue to the Subscriber the number of shares of Common Stock obtained by subtracting (y) the number of shares obtained by dividing the Designated Portion of Purchase Price by the Issue Price from (z) the number of shares obtained by dividing the Designated Portion of Purchase Price by the Average Price.
(d) In the event the Average Price calculated on a Reset Date is more than 130% but less than 200% of the Issue Price, then 20% of the Purchase Price will no longer be subject to Reset. In the event the Average Price calculated on a Reset Date is 200% or more than the Issue Price, then 50% of the Purchase Price shall no longer be subject to Reset.
(e) In no event will the Subscriber be required to return any Company Shares to the Company. Each Reset calculation shall be made independent of all other Reset calculations.
(f) The Company agrees to deliver the Additional Shares to the Subscriber in hand, or Redemption Amount (as defined herein), if such payment of the Redemption Amount is permitted hereunder, no later than ten (10) business days after notice from the Subscriber of the Designated Portion amount (the "Delivery Date"). The Company understands that a delay in the delivery of either the Additional Shares or failure to deliver the Redemption Amount described in Sections 9.2 and 9.3 beyond the Delivery Date could result in economic loss to the Subscriber. As compensation to the Subscriber for such loss, the Company agrees to pay as liquidated damages payments to the Subscriber for late delivery of Additional Shares or Redemption Amount beyond the Delivery Date, in the amount of $100 per business day after the Delivery Date for each $10,000 of Designated Portion of Purchase Price for which a Reset has been calculated. Additionally, in the case of late payment of the Redemption Amount, the Company will pay on additional sum equal to 10% of the Designated Portion of the Purchase Price. The Company shall pay any payments incurred under this Section in immediately available funds upon demand. The late payment charges described in this Section 9.1(f) shall be payable through the date the Additional Shares or Redemption Amount is received in hand by the Subscriber.
(g) Company Shares as defined and employed in this Subscription Agreement shall mean and include Additional Shares for all purposes including but not limited to Section 10 of this Subscription Agreement.
(h) Nothing contained herein or in any document referred to herein shall be deemed to establish or require the payment of a rate of interest or other charges in excess of the maximum permitted by applicable law. In the event a rate of interest required or imputed to be paid or other charges hereunder exceed the maximum permitted by such law, any payments in excess of such maximum shall be credited against amounts owed by the Company to the Subscriber and thus refunded to the Company.4.11:
Appears in 1 contract
Reset. (a) The amount If, from the date hereof until the earlier of the (i) Net Income Drop Away Date and (ii) third anniversary of the Closing Date:
(1) the Company Shares issuable issues or sells, or agrees to issue or sell, in one or more transactions, more than an aggregate of $300,000,000 of Common Stock (or other securities that are convertible into or exchangeable or exercisable for, or are otherwise linked to, Common Stock) (excluding up to an aggregate of $25,000,000 of Common Stock or other equity securities and/or options or other rights in respect thereof to be offered to directors, employees or consultants of the Subscriber shall be redetermined from time Company or its direct or indirect Subsidiaries pursuant to time as described herein employee benefit plans, employment agreements or other customary compensatory plans or arrangements) at a purchase (or reference, implied, conversion, exchange or comparable) price (the "Reset"“New Issuance Price”) per share less than the Reference Purchase Price (a “Reset Issuance”), or
(2) there occurs any Fundamental Change in which the Underlying Security Price (together with the New Issuance Price, the “Reset Price”) is less than the Reference Purchase Price (a “Triggering Fundamental Change” and, together with a Reset Issuance, a “Reset Event”), then, on the earlier of (A) the second business day after the closing of any Reset Issuance and (B) the date of the occurrence of a Triggering Fundamental Change (or, if appropriatelater, additional on the second business day following the later of (x) the determination of the Market Price of a share of Common Stock specified below in this Section 4.11 and (y) the stockholder approval specified below in this Section 4.11, if and as applicable), the Company shall make a payment (but only by delivering shares of Common Stock or, as provided in and subject to Section 4.12, shares of Substitute Preferred Stock or shares of such other class of preferred stock as is described in Section 4.12(d)(ii)) to Purchaser (the "Additional Shares"“Reset Payment”) will be issued and delivered equal to the Subscriber as provided herein. The original purchase price set forth on product of (i) an amount equal to the signature page (x) Reference Purchase Price minus the greater of this Subscription Agreement (1) $2.50 and (2) the "Reset Price, divided by (y) the Reference Purchase Price and (ii) the Reset Purchase Price") , grossed up as required to compensate Purchaser for any diminution in value in the Securities resulting from such Reset Payment. Subject to the provisions of Section 4.12, any such Reset Payment shall be deemed the purchase price of all the paid by delivering to Purchaser shares of Common Stock valued at the lower of the Market Price of a share of Common Stock as of (x) the last trading day prior to be delivered pursuant to the date on which this Subscription Agreement. Provided payment occurs or (y) the Additional Shares are issued after the effective first date of the Registration Statement described in Section 10.1(iv) hereof, such Additional Shares will be free-trading on the books and records public announcement of the Reset Issuance or the Preliminary Fundamental Change that resulted in a Triggering Fundamental Change (provided that, if a Reset Payment becomes due before the Company obtains the approval by the Company’s stockholders of the Stockholder Proposals, (i) the Company shall, at its election, have a reasonable period of time in which to seek such approvals and issued without restrictive legendthe Company’s payment obligation pursuant hereto shall be postponed during such reasonable period of time and (ii) if after the lapse of such reasonable period of time the Company has not obtained such approvals, upon request of Purchaser, the Company shall deliver to Purchaser such number of shares of Substitute Preferred Stock as may be required to satisfy the Company’s remaining obligations under this Section 4.11).
(b) The Reset shall be determined on the dates identified below (each a "Reset Date") for an amount of the Purchase Price equal to not less than 10% and not more than 25% of the Purchase Price, at the Subscriber's election ("Designated Portion") per Reset Date. The initial Reset Date shall be the effective date of the Registration Statement described in Section 10.1(iv) For purposes of this Subscription Agreement or at the Subscriber's election on the 180th day after the Closing Date if the Registration Statement required to be filed pursuant to Section 10.1(iv) hereof has not been declared effective by the Securities 4.11 and Exchange Commission on such date ("Trigger Date"). Subsequent Reset Dates shall be on the 30th, 60th, 90th, 120th, 150th, 180th, 210th, 240th, and 270th day following the Trigger Date. If any such date is not a trading day on the NASDAQ SmallCap Market, then the Reset Date shall be the first trading day thereafter. In the event any portion of the Common Shares comprising the Registration Escrow (as hereinafter defined) is released to the Company pursuant to Section 10.1(iv), then the aggregate Designated Portions of the Purchase Price shall not be greater than that portion of the Purchase Price set forth on the signature page to this Subscription Agreement less the corresponding amount of Purchase Price returned to the Subscriber. In no event may the aggregate Designated Portions of the Purchase Price exceed the Purchase Price. To the extent a Registration Escrow is held in escrow on a Reset Date, then such Common Shares issuable in connection with such Registration Escrow will be deposited in escrow to be held pursuant to the Funds Escrow Agreement.
(c) On each Reset Date a number of Company Shares will be calculated for the Designated Portion of the Purchase Price by dividing the Designated Portion of the Purchase Price by a number equal to seventy-seven percent (77%) of the average closing bid prices for the Common Stock on the NASDAQ SmallCap Market, or on any securities exchange or other securities market on which the Common Stock is then being traded, for the five trading days immediately preceding, but not including, the Reset Date (the "Average Price"). If the Average Price is less than the Issue Price designated on the signature page hereto, then the Company will issue to the Subscriber the number of shares of Common Stock obtained by subtracting (y) the number of shares obtained by dividing the Designated Portion of Purchase Price by the Issue Price from (z) the number of shares obtained by dividing the Designated Portion of Purchase Price by the Average Price.
(d) In the event the Average Price calculated on a Reset Date is more than 130% but less than 200% of the Issue Price, then 20% of the Purchase Price will no longer be subject to Reset. In the event the Average Price calculated on a Reset Date is 200% or more than the Issue Price, then 50% of the Purchase Price shall no longer be subject to Reset.
(e) In no event will the Subscriber be required to return any Company Shares to the Company. Each Reset calculation shall be made independent of all other Reset calculations.
(f) The Company agrees to deliver the Additional Shares to the Subscriber in hand, or Redemption Amount (as defined herein), if such payment of the Redemption Amount is permitted hereunder, no later than ten (10) business days after notice from the Subscriber of the Designated Portion amount (the "Delivery Date"). The Company understands that a delay in the delivery of either the Additional Shares or failure to deliver the Redemption Amount described in Sections 9.2 and 9.3 beyond the Delivery Date could result in economic loss to the Subscriber. As compensation to the Subscriber for such loss, the Company agrees to pay as liquidated damages payments to the Subscriber for late delivery of Additional Shares or Redemption Amount beyond the Delivery Date, in the amount of $100 per business day after the Delivery Date for each $10,000 of Designated Portion of Purchase Price for which a Reset has been calculated. Additionally, in the case of late payment of the Redemption Amount, the Company will pay on additional sum equal to 10% of the Designated Portion of the Purchase Price. The Company shall pay any payments incurred under this Section in immediately available funds upon demand. The late payment charges described in this Section 9.1(f) shall be payable through the date the Additional Shares or Redemption Amount is received in hand by the Subscriber.
(g) Company Shares as defined and employed in this Subscription Agreement shall mean and include Additional Shares for all purposes including but not limited to Section 10 of this Subscription Agreement.
(h) Nothing contained herein or in any document referred to herein shall be deemed to establish or require the payment of a rate of interest or other charges in excess of the maximum permitted by applicable law. In the event a rate of interest required or imputed to be paid or other charges hereunder exceed the maximum permitted by such law, any payments in excess of such maximum shall be credited against amounts owed by the Company to the Subscriber and thus refunded to the Company.4.12:
Appears in 1 contract
Reset. (a) The amount of Company Shares issuable to the Subscriber shall be redetermined from time to time as described herein (the "Reset") and if appropriate, additional shares of Common Stock (the "Additional Shares") will be issued and delivered to the Subscriber as provided herein. The original purchase price set forth on the signature page of this Subscription Agreement (the "Purchase Price") shall be deemed the purchase price of all the shares of Common Stock to be delivered pursuant to this Subscription AgreementAgreement including the Additional Shares. Provided the Additional Shares are issued after the effective date of the Registration Statement described in Section 10.1(iv) hereof, such Additional Shares will be free-trading on the books and records of the Company and issued without restrictive legend.
(b) The Reset shall be determined on the dates identified below thirtieth (30th), sixtieth (60th), and ninetieth (90th) days after the date the registration statement described in Section 10.1(iv) hereof is declared effective by the Commission, or if such registration statement has not been declared on or before the Effective Date then, at the Subscriber's election, the thirtieth (30th), sixtieth (60th), and ninetieth (90th) days after the Effective Date, (each a "Reset Date"). In the event the Company elects to defer a Reset pursuant to Section 9.1(f) for an amount hereof, then the final Reset determination shall be made on the 120th day after declaration of effectiveness described above or Effective Date, as the case may be. The Subscriber may elect to Reset up to one-third (1/3) of the Purchase Price equal to not less than 10% and not more than 25% of the Purchase Price, at the Subscriber's election on each Reset Date ("Designated Portion") per Reset Date. The initial Reset Date shall be the effective date of the Registration Statement described in Section 10.1(iv) of this Subscription Agreement or at the Subscriber's election on the 180th day after the Closing Date if the Registration Statement required to be filed pursuant to Section 10.1(iv) hereof has not been declared effective by the Securities and Exchange Commission on such date ("Trigger Date"). Subsequent A Subscriber may not Reset Dates shall be on the 30th, 60th, 90th, 120th, 150th, 180th, 210th, 240th, and 270th day following the Trigger Date. If any such date is not a trading day on the NASDAQ SmallCap Market, then the Reset Date shall be the first trading day thereafter. In the event any portion of the Common Shares comprising the Registration Escrow (as hereinafter defined) is released to the Company pursuant to Section 10.1(iv), then the aggregate Designated Portions of the Purchase Price shall not be greater than that portion of the Purchase Price set forth for which the Subscriber has sold, prior to a Reset Date, the Common Shares Purchased (as identified on the signature page hereto) in connection therewith. The Subscriber may, in the Subscriber's sole and absolute discretion, determine and designate the source of any of the Company's common shares sold by the Subscriber as being Company Shares received hereunder, or Additional Shares, Put Shares or common shares obtained from any other source other than pursuant to this Subscription Agreement less the corresponding amount of Purchase Price returned to the Subscriber. In no event may the aggregate Designated Portions of the Purchase Price exceed the Purchase Price. To the extent a Registration Escrow is held in escrow on a Reset Date, then such Common Shares issuable in connection with such Registration Escrow will be deposited in escrow to be held pursuant to the Funds Escrow Agreement.
(c) On If the closing bid price of the common stock on the NASD OTC Bulletin Board or such other principal exchange or market where the common stock is listed for trading, on such Reset Date is less than $4.50 (subject to adjustment for stock splits, stock dividends and similar events), then on each Reset Date a number of Company Shares will be calculated for the Designated Portion of the Purchase Price by dividing the Designated Portion of the Purchase Price by a number equal to seventyeighty-seven and one-half percent (7787.5%) of the average of the three lowest closing bid prices for the Common Stock common stock on the NASDAQ SmallCap MarketNASD OTC Bulletin Board, or on any securities exchange or other securities market on which the Common Stock is then being tradedcommon stock was listed, traded or quoted for the five fifteen (15) trading days immediately preceding, but not including, preceding the Reset Date (the "Average Reset Price"). If the Average Reset Price is less than the Issue Price designated on the signature page hereto$4.00, then the Company will issue to the Subscriber the number of shares of Common Stock obtained by subtracting (y) the number of shares obtained by dividing the Designated Portion of Purchase Price by the Issue Price $4.00 from (z) the number of shares obtained by dividing the Designated Portion of Purchase Price by the Average Reset Price.
(d) In the event the Average Price calculated on a Reset Date is more than 130% but less than 200% of the Issue Price, then 20% of the Purchase Price will no longer be subject to Reset. In the event the Average Price calculated on a Reset Date is 200% or more than the Issue Price, then 50% of the Purchase Price shall no longer be subject to Reset.
(e) In no event will the Subscriber be required to return any Company Shares to the Company. Each Reset calculation shall be made independent of all other Reset calculations.
(fe) The Company agrees to deliver the Additional Shares to the Subscriber in hand, or Redemption Amount (as defined herein), ) if such payment of the Redemption Amount is permitted required hereunder, no later than ten (10) business days after notice from the Subscriber ("Reset Notice") of the Designated Portion amount (the "Delivery Date"). A Reset Notice must be given to the Company within 20 days of the Reset Date. The Company understands that a delay in the delivery of either the Additional Shares or failure to timely deliver the Redemption Amount described in Sections Section 9.2 and 9.3 beyond the Delivery Date could result in economic loss to the Subscriber. As compensation to the Subscriber for such loss, the Company agrees to pay as liquidated damages payments to the Subscriber for late delivery of Additional Shares or Redemption Amount beyond the Delivery Date, in the amount of $100 per business day after the Delivery Date for each $10,000 of Designated Portion of Purchase Price for which a Reset has been calculated. Additionally, in the case of late payment of the Redemption Amount, the Company will pay on additional sum equal to 10% of the Designated Portion of the Purchase Price. The Company shall pay any payments incurred under this Section in immediately available funds upon demand. The late payment charges described in this Section 9.1(f9.1(g) shall be payable through the date the Additional Shares or Redemption Amount is received in hand by the Subscriber.
(f) The Company may elect to defer a Reset in relation to one Reset Date ("Reset Deferral"). Such Reset Deferral must be made for all Subscribers entering into subscription agreements similar to this Subscription Agreement in connection with $1,200,000 of Purchase Price, in the aggregate. The Company's Reset Deferral election must be communicated in writing to all of the above described Subscribers within three business days after the Reset Date for which the Company elects a Reset Deferral. In the event the Company elects a Reset Deferral, the Subscriber shall have the option of electing the Reset Price in effect on any subsequent Reset Date on which a Reset may be determined pursuant to 9.1(c) above or an alternative Reset Price ("Alternative Reset Price") for the amount of Purchase Price subject to the Reset Deferral. The Alternative Reset Price, if any, shall be the average of the Reset Price in effect on the Reset Date for which the Reset Deferral has been elected and the Reset Price on the Reset Date for which a Reset Notice is given in relation to a portion of the Purchase Price which was the subject of a Reset Deferral.
(g) Securities and Company Shares as defined and employed in this Subscription Agreement shall mean and include Additional Shares for all purposes including but not limited to Section 10 of this Subscription Agreement.
(h) Nothing contained herein or in any document referred to herein or delivered in connection herewith shall be deemed to establish or require the payment of a rate of interest or other charges in excess of the maximum permitted by applicable law. In the event a that the rate of interest or dividends required or imputed to be paid or other charges hereunder exceed the maximum permitted by such law, any payments in excess of such maximum shall be credited against amounts owed by the Company to the Subscriber and thus refunded to the Company.
Appears in 1 contract
Sources: Subscription Agreement (Teltran International Group LTD)
Reset. (a) a. The aggregate amount of Company Shares Common Stock issuable to the Subscriber Purchasers shall be redetermined from time to time as described herein (the "Reset") and and, if appropriate, additional shares of Common Stock (the "Additional Reset Shares") or, if Company stockholder approval of the issuance of the Reset Shares has not been obtained by the 150th day after the Closing, cash or a Company promissory note (as more fully described below) (the "Reset Amount" and together with the Reset Shares, the "Reset Securities") will be issued (as applicable) and delivered to the Subscriber Purchasers as provided herein. The original purchase price set forth on the signature page of this Subscription Agreement (the "Purchase Price") Price shall be deemed the purchase price of all the shares of Common Stock securities to be delivered issued pursuant to this Subscription Agreement. Provided Agreement including the Additional Shares are issued after Reset Securities.
b. On the earlier of (i) the 120th day following the Closing and (ii) the effective date of the Registration Statement described in Section 10.1(iv) hereof, such Additional Shares will be free-trading on (the books and records of the Company and issued without restrictive legend.
(b) The Reset shall be determined on the dates identified below (each a "Reset Date") for an amount of the Purchase Price equal to not less than 10% and not more than 25% of the Purchase Price), at the Subscriber's election ("Designated Portion") per Reset Date. The initial Reset Date shall be the effective date of the Registration Statement described in Section 10.1(iv) of this Subscription Agreement or at the Subscriber's election on the 180th day after the Closing Date if the Registration Statement required to be filed pursuant to Section 10.1(iv) hereof has not been declared effective by the Securities and Exchange Commission on such date ("Trigger Date"). Subsequent Reset Dates shall be on the 30th, 60th, 90th, 120th, 150th, 180th, 210th, 240th, and 270th day following the Trigger Date. If any such date is not a trading day on the NASDAQ SmallCap Market, then the Reset Date shall be the first trading day thereafter. In the event any portion of the Common Shares comprising the Registration Escrow (as hereinafter defined) is released to the Company pursuant to Section 10.1(iv), then the aggregate Designated Portions of the Purchase Price shall not be greater than that portion of the Purchase Price set forth on the signature page to this Subscription Agreement less the corresponding amount of Purchase Price returned to the Subscriber. In no event may the aggregate Designated Portions of the Purchase Price exceed the Purchase Price. To the extent a Registration Escrow is held in escrow on a Reset Date, then such Common Shares issuable in connection with such Registration Escrow will be deposited in escrow to be held pursuant to the Funds Escrow Agreement.
(c) On each Reset Date a number of Company Shares will be calculated for the Designated Portion of the Purchase Price by dividing the Designated Portion of the Purchase Price by a number equal to seventy-seven percent (77%) of determine the average closing bid prices price for the Common Stock on the NASDAQ SmallCap Market, or on any securities exchange or other securities market on which the Common Stock is then being traded, as reported by AMEX for the five 20 consecutive trading days immediately preceding, but not including, preceding the Reset Date (the "Average Reset Price"). If the Average Reset Price is less than $2.88 (subject to appropriate adjustment for stock splits, stock dividends and similar events) for the Issue Reset Date, then, subject to subsection (d) below, the Company shall promptly issue to the Purchasers hereunder, without payment of additional consideration therefor, that number of additional shares of Common Stock calculated as follows: A = (B minus C) divided by D A= The aggregate number of Reset Shares issuable to the Purchasers B= X multiplied by Y multiplied by Z, where X = The aggregate number of Common Shares issuable hereunder then held by the Purchasers and not sold or otherwise transferred (excluding the Reset Shares) Y = $500,000 divided by the aggregate number of Common Shares issuable hereunder (excluding the Reset Shares) Z = 130% C= The product obtained by multiplying the aggregate number of Common Shares issuable hereunder then held by the Purchasers and not sold or otherwise transferred (excluding the Reset Shares) by the Reset Price designated on D= The Reset Price By way of example, if the signature page heretoReset Price for the Reset Date is $2.50 and the Purchasers have purchased an aggregate of 226,004 Common Shares for the Purchase Price of $500,000 and still own all of such shares as of the Reset Date, then the Company will shall issue to the Subscriber Purchasers 33,720 Reset Shares following the Reset Date.
c. The Reset Shares, if any, issued hereunder shall be subject to the restrictions, limitations and conditions imposed upon the Common Shares issued upon the initial subscription under this Agreement. The Reset Securities shall be allocated among the Purchasers in proportion to the number of shares of Common Stock obtained Shares acquired by subtracting (y) the number of shares obtained by dividing the Designated Portion of Purchase Price by the Issue Price from (z) the number of shares obtained by dividing the Designated Portion of Purchase Price by the Average Pricethem hereunder.
(d) In the event the Average Price calculated on a Reset Date is more than 130% but less than 200% d. If Company stockholder approval of the Issue Priceissuance of the Reset Shares is not obtained on or prior to the 150th day after the Closing, then 20% instead of issuing the Purchase Price will no longer be subject to Reset. In Purchasers the event the Average Price calculated on a Reset Date is 200% or more than the Issue Price, then 50% of the Purchase Price shall no longer be subject to Reset.
(e) In no event will the Subscriber be required to return any Company Shares to which they otherwise would be entitled to receive in accordance with subsection (b) above, the Company. Each Reset calculation Company shall be made independent of all other Reset calculations.
(f) The Company agrees to deliver the Additional Shares to the Subscriber in hand, or Redemption Amount (as defined herein), if such payment of the Redemption Amount is permitted hereunder, no later than ten (10) business days after notice from the Subscriber of the Designated Portion Purchasers a cash amount (the "Delivery Reset Payment") equal to the then fair market value of the Reset Shares (which shall be equal to the average closing bid price for the Common Stock as reported by AMEX for the 20 consecutive trading days preceding the Reset Date"). The If the Company understands that a delay in the delivery of either the Additional Shares or failure is financially unable to deliver all of the Redemption Amount described Reset Payment in Sections 9.2 and 9.3 beyond cash within three days of the Delivery Date could result in economic loss to Reset Date, then that portion of the Subscriber. As compensation to the Subscriber for such loss, Reset Payment which the Company agrees is unable to pay as liquidated damages payments to shall be payable by delivery by the Subscriber for late delivery Company of Additional Shares or Redemption Amount beyond a promissory note in such amount bearing interest at the Delivery Daterate of 9% per annum, with principal and interest payable in full on the amount of $100 per business day after the Delivery Date for each $10,000 of Designated Portion of Purchase Price for which a Reset has been calculated. Additionally, in the case of late payment first anniversary of the Redemption Amountdate of delivery.
e. Within 30 days after stockholder approval of the issuance of the Reset Shares, if any, the Company will pay on additional sum equal file a registration statement (the "Reset Registration Statement") under the Securities Act to 10% permit the offer and sale by the Purchasers of the Designated Portion of the Purchase PriceReset Shares. The Company shall pay any payments incurred under this Section in immediately available funds upon demandwill use its reasonable best efforts to cause the Reset Registration Statement to be declared effective by the SEC within 75 days after the initial filing thereof. The late payment charges described in this Section 9.1(ffees and expenses related to such filing (excluding underwriter discounts and commissions and the fees and expenses of counsel to the Purchasers) shall will be payable through the date the Additional Shares or Redemption Amount is received in hand by the Subscriber.
Company. The Company may delay the filing and/or effectiveness of the Reset Registration Statement for a period not to exceed 90 days if the Company is in possession of material nonpublic information that the Company would be required pursuant to applicable law, rule or regulation to disclose in the Reset Registration Statement and that is not, but for the registration, otherwise required to be so disclosed at the time of such registration, the disclosure of which, in its good faith judgment, is likely to have a material adverse effect on the business, operations or prospects of the Company. The Company will use its reasonable best efforts to keep the Reset Registration Statement continuously effective until the Purchasers have completed the distribution described therein; provided that, notwithstanding the foregoing, at the Company's election, the Company may cease to keep the Reset Registration Statement effective with respect to any shares covered thereby, and the registration rights of a Purchaser shall expire with respect to such shares, at such time as such shares may be sold pursuant to Rule 144(k) under the Securities Act (gor other exemption from registration mutually acceptable to the Company and the Purchasers). In connection with the filing of the Reset Registration Statement, the Company will indemnify and hold harmless, to the extent permitted by law, the Purchasers and their respective directors, officers and affiliates (the "Indemnitees") Company Shares against any and all losses, claims, damages, liabilities and/or expenses (collectively, "Claims") to which such Indemnitees may become subject under the Securities Act, common law or otherwise, insofar as defined and employed such Claims (or actions or proceedings in this Subscription Agreement shall mean and include Additional Shares for all purposes including but not limited to Section 10 respect thereof) arise out of this Subscription Agreement.
or are based upon (hi) Nothing any untrue statement or alleged untrue statement of any material fact contained herein in the Reset Registration Statement, or incorporated by reference therein, or in any document referred preliminary, final or summary prospectus contained therein (except where errors or omissions in such preliminary prospectus are corrected in the final prospectus and the Purchasers fail to herein deliver such final prospectus) or any amendment or supplement thereto, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Company will reimburse the Indemnitees for any legal expenses reasonably incurred by them in connection with defending any such Claim; provided, however, that the Company shall not be deemed liable to establish any Indemnitee in any such case to the extent that any such Claim (or require action or proceeding in respect thereof) arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in the payment Reset Registration Statement, or incorporated by reference therein, or in any amendment or supplement thereto or in any such preliminary, final or summary prospectus in reliance upon and in material conformity with written information with respect to any Purchaser furnished to the Company by or on behalf of a rate such Purchaser for use in the preparation thereof. The foregoing indemnity agreement shall not apply to amounts paid in settlement of interest or other charges in excess claims if such settlement is effectuated without the consent of the maximum permitted by applicable lawCompany (which shall not be unreasonably withheld). At its expense, the Company shall make available to the Purchasers such number of copies of the prospectus constituting a part of the Reset Registration Statement as is reasonably necessary to allow the Purchasers to resell the Reset Shares, if any. In connection with the event a rate of interest required or imputed Company's registration obligations set forth above, the Company shall use its reasonable efforts to cause the shares covered by the Reset Registration Statement to be paid listed or other charges hereunder exceed the maximum permitted by such lawadmitted for trading or otherwise included on each securities exchange, any payments in excess of such maximum shall be credited against amounts owed if any, (including, without limitation, The American Stock Exchange) on which similar securities issued by the Company to the Subscriber and thus refunded to the Companyare then listed.
Appears in 1 contract
Sources: Stock Purchase Agreement (Healthcare Integrated Services Inc)
Reset. (a) The amount of Company Shares issuable to the Subscriber shall be redetermined from time to time as described herein (the "Reset") and if appropriate, additional shares of Common Stock (the "Additional Shares") will be issued and delivered to the Subscriber as provided herein. The original purchase price set forth on the signature page of this Subscription Agreement (the "Purchase Price") shall be deemed the purchase price of all the shares of Common Stock to be delivered pursuant to this Subscription AgreementAgreement including the Additional Shares. Provided the Additional Shares are issued after the effective date of the Registration Statement described in Section 10.1(iv10.1 (iv) hereof, such Additional Shares will be free-trading on the books and records of the Company and issued without restrictive legend.
(b) The Reset shall be determined on the dates identified below first NASDAQ SmallCap Market trading day of each calendar month commencing October 1, 1999 (each a "Reset Date") for an amount of the Purchase Price equal to not less than 10% and not more than up to 25% of the Purchase Price, at the Subscriber's written election at any time during each calendar month ("Designated Portion") per Reset Date. The initial Reset Date shall be .
(c) If the effective date of the Registration Statement described in Section 10.1(iv) of this Subscription Agreement or at the SubscriberCompany's election on the 180th day after the Closing Date if the Registration Statement required to be filed pursuant to Section 10.1(iv) hereof has not been declared effective by the Securities and Exchange Commission on such date ("Trigger Date"). Subsequent Reset Dates shall be on the 30th, 60th, 90th, 120th, 150th, 180th, 210th, 240th, and 270th day following the Trigger Date. If any such date common stock is not a listed for trading day on the NASDAQ SmallCap Market, then the Market on a Reset Date shall be and the first trading day thereafter. In the event any portion Closing Bid Price of the Common Shares comprising the Registration Escrow (as hereinafter defined) common stock on such Reset Date is released to the Company pursuant to Section 10.1(iv), then the aggregate Designated Portions less than 130% of the Purchase Price shall not be greater than that portion of the Purchase Issue Price set forth on the signature page hereto, (subject to this Subscription Agreement less the corresponding amount of Purchase Price returned to the Subscriber. In no event may the aggregate Designated Portions of the Purchase Price exceed the Purchase Price. To the extent a Registration Escrow is held in escrow on a Reset Dateadjustment for stock splits, stock dividends and similar events), then such Common Shares issuable in connection with such Registration Escrow will be deposited in escrow to be held pursuant to the Funds Escrow Agreement.
(c) On on each Reset Date a number of Company Shares will be calculated for the Designated Portion of the Purchase Price by dividing the Designated Portion of the Purchase Price by a number equal to seventyeighty-seven five percent (7785%) of the average lowest closing bid prices price for the Common Stock common stock on the NASDAQ SmallCap Market, or on any securities exchange or other securities market on which the Common Stock is then being tradedcommon stock was listed, traded or quoted for the five trading days calendar month immediately preceding, but not including, preceding the Reset Date (the "Average Reset Price"). If the Average Reset Price is less than the Issue Price designated on the signature page hereto, then the Company will issue to the Subscriber the number of shares of Common Stock obtained by subtracting (y) the number of shares obtained by dividing the Designated Portion of Purchase Price by the Issue Price from (z) the number of shares obtained by dividing the Designated Portion of Purchase Price by the Average Reset Price.
(d) In If the event Company's Common Stock is not listed for trading on the Average Price calculated NASDAQ SmallCap Market or National Market System on a Reset Date and the Closing Bid Price of the Common Stock on such Reset Date is more than 130% but less than 200175% of the Issue PricePrice (subject to adjustment for stock split, stock dividends and similar events), then 20% on each Reset Date a number of Company Shares will be calculated for the Designated Portion of the Purchase Price will no longer be subject by Dividing the Designated Portion of the Purchase Price by a number equal to Reseteighty-five percent (85%) of the lowest closing bid price for the common stock on the NASDAQ SmallCap Market, or on any securities exchange or other securities market on which the common stock was listed, traded or quoted for the calendar month immediately preceding the Reset Date. In If the event the Average Reset Price calculated on a Reset Date is 200% or more less than the Issue Price, then 50the Company will issue to the Subscriber the number of shares of Common Stock obtained by subtracting (y) the number of shares obtained by dividing the Designated Portion of Purchase Price by the Issue Price from (z) the number of shares obtained by dividing the Designated Portion of Purchase Price by the Reset Price.
(e) Reset rights described herein shall end on the sooner to occur of two years after the Effective Date of the registration statement as described in Section 10.1(iv) hereof, or upon the Subscriber having realized net proceeds from sales of the Company Shares equal to 150% of the Purchase Price and Put Consideration actually paid by the Subscriber, of which occurrence the Subscriber shall no longer be subject to Resetnotify the Company in writing.
(ef) In no event will the Subscriber be required to return any Company Shares to the Company. Each Reset calculation shall be made independent of all other Reset calculations.
(fg) The Company agrees to deliver the Additional Shares to the Subscriber in hand, or Redemption Amount (as defined herein), ) if such payment of the Redemption Amount is permitted hereunder, no later than ten (10) business days, in the case of the Additional Shares, or five (5) business days in the case of the Redemption Amount, after notice from the Subscriber of the Designated Portion amount (the each a "Delivery Date"). The Company understands that a delay in the delivery of either the Additional Shares or failure to timely deliver the Redemption Amount described in Sections 9.2 and 9.3 beyond the required Delivery Date could result in economic loss to the Subscriber. As compensation to the Subscriber for such loss, the Company agrees to pay as liquidated damages payments to the Subscriber for late delivery of Additional Shares or Redemption Amount beyond the required Delivery Date, in the amount of $100 per business day after the Delivery Date for each $10,000 of Designated Portion of Purchase Price for which a Reset has been calculated. Additionally, in the case of late payment of the Redemption Amount, the Company will pay on additional sum equal to 10% of the Designated Portion of the Purchase Price. The Company shall pay any payments incurred under this Section in immediately available funds upon demand. The late payment charges described in this Section 9.1(f9.1(g) shall be payable through the date the Additional Shares or Redemption Amount is received in hand by the Subscriber.
(gh) Securities and Company Shares as defined and employed in this Subscription Agreement shall mean and include Additional Shares for all purposes including but not limited to Section 10 of this Subscription Agreement.
(hi) Nothing contained herein or in any document referred to herein or delivered in connection herewith shall be deemed to establish or require the payment of a rate of interest or other charges in excess of the maximum permitted by applicable law. In the event a that the rate of interest required or imputed to be paid or other charges hereunder exceed the maximum permitted by such law, any payments in excess of such maximum shall be credited against amounts owed by the Company to the Subscriber and thus refunded to the Company.
Appears in 1 contract
Reset. Other than in connection with (ai) The amount full or partial consideration in connection with a strategic merger, acquisition, consolidation or purchase of Company Shares issuable substantially all of the securities or assets of a corporation or other entity by the Company, provided such issuances are not for the purpose of raising capital, (ii) the Company’s issuance of securities in connection with strategic license agreements and other partnering arrangements so long as such issuances are not for the purpose of raising capital, (iii) the Company’s issuance of Common Stock or the issuances or grants of options to purchase Common Stock pursuant to stock option plans and employee stock purchase plans described on Schedule 5(d) to the Subscriber shall be redetermined from time to time Subscription Agreement, (iv) underwritten public offerings by the Company, (v) as described herein in the Reports (as defined in the "Reset"Subscription Agreement), and (vi) and as described on Schedule 7 hereto (collectively the foregoing are “Excepted Issuances”), if appropriateat any time during the Compliance Period (as defined in the Subscription Agreement) while the Buyer is holding Shares, additional the Company shall offer, issue or agree to issue any common stock or securities convertible into or exercisable for shares of Common Stock (or modify any of the "Additional Shares"foregoing which may be outstanding) will be issued and delivered to the Subscriber as provided herein. The original purchase any person or entity at a price set forth on the signature page of this Subscription Agreement (the "Purchase Price") per share or conversion or exercise price per share which shall be deemed less than $1.00, without the consent of Buyer, then the Seller shall deliver, for each such occasion, additional Shares to Buyer so that the average per share purchase price of all the shares of Common Stock sold to Buyer (of only the Purchased Shares still owned by Buyer) is equal to such other lower price per share. For purposes of this Section 7, the purchase price of the Shares shall be deemed to be delivered pursuant $1.00 (“Imputed Share Price”). The delivery to this Subscription Agreement. Provided the Additional Buyer of the additional Shares are issued after shall be not later than the effective closing date of the Registration Statement transaction giving rise to the requirement to issue additional Shares (“Issuance Date”). The Buyer is hereby granted by the Company the registration rights described in Section 10.1(iv) hereof11 of the Subscription Agreement in relation to such additional Shares, such Additional Shares will be free-trading on or at the books election of the Buyer, registration rights, if any, granted in connection with the dilutive issuance. For purposes of the issuance and records adjustment described in this paragraph, the issuance of any security of the Company and issued without restrictive legend.
(b) The Reset carrying the right to convert such security into shares of Common Stock or of any warrant, right or option to purchase Common Stock shall be determined on result in the dates identified below (each a "Reset Date") for an amount delivery of the Purchase Price equal to not less than 10% and not more than 25% additional Shares upon the sooner of the Purchase Priceagreement to or actual issuance of such convertible security, warrant, right or option and again at the Subscriber's election ("Designated Portion") per Reset Date. The initial Reset Date shall be the effective date of the Registration Statement described in Section 10.1(iv) of this Subscription Agreement or at the Subscriber's election on the 180th day after the Closing Date if the Registration Statement required to be filed pursuant to Section 10.1(iv) hereof has not been declared effective by the Securities and Exchange Commission on such date ("Trigger Date"). Subsequent Reset Dates shall be on the 30th, 60th, 90th, 120th, 150th, 180th, 210th, 240th, and 270th day following the Trigger Date. If any such date is not a trading day on the NASDAQ SmallCap Market, then the Reset Date shall be the first trading day thereafter. In the event time upon any portion of the Common Shares comprising the Registration Escrow (as hereinafter defined) is released to the Company pursuant to Section 10.1(iv), then the aggregate Designated Portions of the Purchase Price shall not be greater than that portion of the Purchase Price set forth on the signature page to this Subscription Agreement less the corresponding amount of Purchase Price returned to the Subscriber. In no event may the aggregate Designated Portions of the Purchase Price exceed the Purchase Price. To the extent a Registration Escrow is held in escrow on a Reset Date, then such Common Shares issuable in connection with such Registration Escrow will be deposited in escrow to be held pursuant to the Funds Escrow Agreement.
(c) On each Reset Date a number of Company Shares will be calculated for the Designated Portion of the Purchase Price by dividing the Designated Portion of the Purchase Price by a number equal to seventy-seven percent (77%) of the average closing bid prices for the Common Stock on the NASDAQ SmallCap Market, or on any securities exchange or other securities market on which the Common Stock is then being traded, for the five trading days immediately preceding, but not including, the Reset Date (the "Average Price"). If the Average Price is less than the Issue Price designated on the signature page hereto, then the Company will issue to the Subscriber the number subsequent issuances of shares of Common Stock obtained by subtracting (y) the number upon exercise of shares obtained by dividing the Designated Portion of Purchase Price by the Issue Price from (z) the number of shares obtained by dividing the Designated Portion of Purchase Price by the Average Price.
(d) In the event the Average Price calculated on a Reset Date is more than 130% but less than 200% of the Issue Price, then 20% of the Purchase Price will no longer be subject to Reset. In the event the Average Price calculated on a Reset Date is 200% such conversion or more than the Issue Price, then 50% of the Purchase Price shall no longer be subject to Reset.
(e) In no event will the Subscriber be required to return any Company Shares to the Company. Each Reset calculation shall be made independent of all other Reset calculations.
(f) The Company agrees to deliver the Additional Shares to the Subscriber in hand, or Redemption Amount (as defined herein), purchase rights if such payment of the Redemption Amount issuance is permitted hereunder, no later at a price lower than ten (10) business days after notice from the Subscriber of the Designated Portion amount (the "Delivery Date"). The Company understands that a delay in the delivery of either the Additional Shares or failure to deliver the Redemption Amount described in Sections 9.2 and 9.3 beyond the Delivery Date could result in economic loss to the Subscriber. As compensation to the Subscriber for such loss, the Company agrees to pay as liquidated damages payments to the Subscriber for late delivery of Additional Shares or Redemption Amount beyond the Delivery Date, in the amount of $100 per business day after the Delivery Date for each $10,000 of Designated Portion of Purchase Price for which a Reset has been calculated. Additionally, in the case of late payment of the Redemption Amount, the Company will pay on additional sum equal to 10% of the Designated Portion of the Purchase Price. The Company shall pay any payments incurred under this Section in immediately available funds upon demand. The late payment charges described in this Section 9.1(f) shall be payable through the date the Additional Shares or Redemption Amount is received in hand by the Subscriber1.00.
(g) Company Shares as defined and employed in this Subscription Agreement shall mean and include Additional Shares for all purposes including but not limited to Section 10 of this Subscription Agreement.
(h) Nothing contained herein or in any document referred to herein shall be deemed to establish or require the payment of a rate of interest or other charges in excess of the maximum permitted by applicable law. In the event a rate of interest required or imputed to be paid or other charges hereunder exceed the maximum permitted by such law, any payments in excess of such maximum shall be credited against amounts owed by the Company to the Subscriber and thus refunded to the Company.
Appears in 1 contract
Reset. (a) The amount One year following the commencement of public trading of the common stock of the Reporting Company Shares issuable subsequent to the Subscriber shall be redetermined from time to time as described herein Closing of the Transactions (the "ResetReset Date"), the 300,000 common shares of the Reporting Company owned by ▇▇▇▇▇▇ Mill ("the ▇▇▇▇▇▇ Mill Shares") and shall be increased, if appropriaterequired, such that the number of ▇▇▇▇▇▇ Mill Shares times the average closing bid of the Reporting Company's common stock for the 20 consecutive trading days immediately prior to the Reset Date shall equal a value of $150,000. If, on the Reset Date, the value of the ▇▇▇▇▇▇ Mill Shares is less than $150,000, QPI will deliver to ▇▇▇▇▇▇ Mill, out of the shares it receives pursuant to the Asset Acquisition Agreement, additional shares of Common Stock the Reporting Company valued as described herein necessary to equal the difference between the value of the ▇▇▇▇▇▇ Mill Shares and $150,000, subject to the adjustment provisions of this paragraph. QPI shall reserve and "escrow" an additional 300,000 shares of the Reporting Company (the "Additional Escrow Shares") will be issued and delivered to the Subscriber as provided herein. The original purchase price set forth on the signature page of this Subscription Agreement (the "Purchase Price") shall be deemed the purchase price of all the shares of Common Stock to be delivered pursuant to this Subscription Agreement. Provided the Additional Shares are issued after the effective date of the Registration Statement described in Section 10.1(iv) hereof, such Additional Shares will be free-trading on the books and records of the Company and issued without restrictive legend.
(b) The Reset shall be determined on the dates identified below (each a "Reset Date") for an amount of the Purchase Price equal to not less than 10% and not more than 25% of the Purchase Price, at the Subscriber's election ("Designated Portion") per Reset Date. The initial Reset Date shall be the effective date of the Registration Statement described in Section 10.1(iv) of this Subscription Agreement or at the Subscriber's election on the 180th day after the Closing Date if the Registration Statement required to be filed pursuant to Section 10.1(iv) hereof has not been declared effective by the Securities and Exchange Commission on such date ("Trigger Date"). Subsequent Reset Dates shall be on the 30th, 60th, 90th, 120th, 150th, 180th, 210th, 240th, and 270th day following the Trigger Date. If any such date is not a trading day on the NASDAQ SmallCap Market, then until the Reset Date to satisfy this obligation, which shares shall be delivered and held by such escrow agent under such terms as ▇▇▇▇▇▇ Mill and QPI may reasonably agree (and, if no such agreement has been reached by the first trading day thereafter. In Closing Date, then a certificate representing the event any portion of Escrow Shares shall be held by the Common Shares comprising the Registration Escrow August Law Group, P.C. (as hereinafter defined) is released to the Company pursuant to Section 10.1(iv"ALG"), then until such time as joint written instructions therefor are delivered to ALG and the aggregate Designated Portions of the Purchase Price shall not be greater than that portion of the Purchase Price set forth Escrow Shares are released in accordance therewith. If, on the signature page to this Subscription Agreement less the corresponding amount of Purchase Price returned to the Subscriber. In no event may the aggregate Designated Portions of the Purchase Price exceed the Purchase Price. To the extent a Registration Escrow is held in escrow on a Reset Date, then such Common the Escrow Shares issuable in connection with such Registration Escrow will be deposited in escrow do not have sufficient fair market value to be held pursuant equal to the Funds monetary obligation of QPI under this Section 7(a), QPI hereby agrees to pay to ▇▇▇▇▇▇ Mill, in cash, the difference between its monetary obligation under this Section 7(a) and the fair market value of the Escrow Agreement.
Shares (c) On each Reset Date a calculated by multiplying the number of Company such Escrow Shares will be calculated for the Designated Portion of the Purchase Price by dividing the Designated Portion of the Purchase Price by a number equal to seventy-seven percent (77%) of the average closing bid prices price of the Reporting Company's common stock as announced by the principal stock market or exchange on which it is then trading for the Common Stock on the NASDAQ SmallCap Market, or on any securities exchange or other securities market on which the Common Stock is then being traded, for the five 10 consecutive trading days immediately preceding, but not including, prior to the Reset Date (the "Average Price"Date). If the Average Price is less than the Issue Price designated on the signature page hereto, then the Company will issue to the Subscriber the number of shares of Common Stock obtained by subtracting (y) the number of shares obtained by dividing the Designated Portion of Purchase Price by the Issue Price from (z) the number of shares obtained by dividing the Designated Portion of Purchase Price by the Average Price.
(d) In the event the Average Price calculated on a Reset Date is more than 130% but less than 200% of the Issue Price, then 20% of the Purchase Price will no longer be subject to Reset. In the event the Average Price calculated on a Reset Date is 200% or more than the Issue Price, then 50% of the Purchase Price shall no longer be subject to Reset.
(e) In no event will the Subscriber be required to return any Company Shares to the Company. Each Reset calculation shall be made independent of all other Reset calculations.
(f) The Company agrees to deliver the Additional Shares to the Subscriber in hand, or Redemption Amount (as defined herein), if such payment of the Redemption Amount is permitted hereunder, no later than ten (10) business days after notice from the Subscriber of the Designated Portion amount (the "Delivery Date"). The Company understands that a delay in the delivery of either the Additional Shares or failure to deliver the Redemption Amount described in Sections 9.2 and 9.3 beyond the Delivery Date could result in economic loss to the Subscriber. As compensation to the Subscriber for such loss, the Company agrees to pay as liquidated damages payments to the Subscriber for late delivery of Additional Shares or Redemption Amount beyond the Delivery Date, in the amount of $100 per business day after the Delivery Date for each $10,000 of Designated Portion of Purchase Price for which a Reset has been calculated. Additionally, in the case of late payment of the Redemption Amount, the Company will pay on additional sum equal to 10% of the Designated Portion of the Purchase Price. The Company shall pay any payments incurred under this Section in immediately available funds upon demand. The late payment charges described in this Section 9.1(f) shall be payable through the date the Additional Shares or Redemption Amount is received in hand by the Subscriber.
(g) Company Shares as defined and employed in this Subscription Agreement shall mean and include Additional Shares for all purposes including but not limited to Section 10 of this Subscription Agreement.
(h) Nothing contained herein or in any document referred to herein shall be deemed to establish or require the payment of a rate of interest or other charges in excess of the maximum permitted by applicable law. In the event a rate of interest required or imputed to be paid or other charges hereunder exceed the maximum permitted by such law, any payments in excess of such maximum shall be credited against amounts owed by the Company to the Subscriber and thus refunded to the Company.
Appears in 1 contract
Sources: Stock Purchase Agreement (Global Food Technologies, Inc.)
Reset. Provided that the Debenture is outstanding, if, during the 10 Trading Day period following the earlier of (ai) The amount the effective date of Company any registration statement registering any portion of the Underlying Shares issuable to or (ii) the Subscriber 6 month anniversary of the Closing Date (the “Reset Pricing Period”), the average of the VWAPs for such 10 Trading Days is lower than the Per Share Purchase Price (the “Reset VWAP”), then each Purchaser shall be redetermined from time entitled to time as described herein (the "Reset") and if appropriate, receive additional shares of Common Stock (the "Additional Shares") will be issued and delivered to the Subscriber as provided herein. The original purchase price set forth on the signature page of this Subscription Agreement (the "Purchase Price") shall be deemed the purchase price of all the shares of Common Stock to be delivered pursuant to this Subscription Agreement. Provided the Additional Shares are issued after the effective date of the Registration Statement described in Section 10.1(iv) hereof, such Additional Shares will be free-trading on the books and records of the Company and issued without restrictive legend.
(b) The Reset shall be determined on the dates identified below (each a "Reset Date") for an amount of the Purchase Price equal to not less than 10% and not more than 25% of the Purchase Price, at the Subscriber's election ("Designated Portion"a) per Reset Date. The initial Reset Date shall be the effective date of the Registration Statement described in Section 10.1(iv) of this Subscription Agreement or at the Subscriber's election on the 180th day after the Closing Date if the Registration Statement required to be filed pursuant to Section 10.1(iv) hereof has not been declared effective by the Securities and Exchange Commission on such date ("Trigger Date"). Subsequent Reset Dates shall be on the 30th, 60th, 90th, 120th, 150th, 180th, 210th, 240th, and 270th day following the Trigger Date. If any such date is not a trading day on the NASDAQ SmallCap Market, then the Reset Date shall be the first trading day thereafter. In the event any portion of the Common Shares comprising the Registration Escrow (as hereinafter defined) is released to the Company pursuant to Section 10.1(iv), then the aggregate Designated Portions of the Purchase Price shall not be greater than that portion of the Purchase Price set forth on the signature page to this Subscription Agreement less the corresponding amount of Purchase Price returned to the Subscriber. In no event may the aggregate Designated Portions of the Purchase Price exceed the Purchase Price. To the extent a Registration Escrow is held in escrow on a Reset Date, then such Common Shares issuable in connection with such Registration Escrow will be deposited in escrow to be held pursuant to the Funds Escrow Agreement.
(c) On each Reset Date a number of Company Shares will be calculated for the Designated Portion of the Purchase Price by dividing the Designated Portion of the Purchase Price by a number equal to seventy-seven percent (77%) of the average closing bid prices for the Common Stock on the NASDAQ SmallCap Market, or on any securities exchange or other securities market on which the Common Stock is then being traded, for the five trading days immediately preceding, but not including, the Reset Date (the "Average Price"). If the Average Price is less than the Issue Price designated on the signature page hereto, then the Company will issue to the Subscriber the number of shares of Common Stock obtained issuable upon the conversion of the Debenture purchaser continues to beneficially own as of such date multiplied by subtracting the Per Share Purchase Price divided by the Reset VWAP less (yb) the number of shares obtained issuable upon conversion of the Debenture as of the Closing which continues to beneficially owned (the “Reset Shares”), with such maximum number of shares issuable, in the aggregate, to the Purchasers equal to (x) the aggregate Subscription Amount divided by dividing $0.10 (subject to adjustment for forward and reverse stock splits and the Designated Portion like) less (y) the aggregate number of shares that would be issuable upon conversion of the Debenture as of the Closing (the “Maximum Reset Shares”). For the purpose of clarity, if the average of the Reset VWAP is equal to or greater than the Per Share Purchase Price, no Purchaser shall receive any Reset Shares. For the purpose of clarity, if the average of the Reset VWAP is less than the per share Purchaser Price by the Issue Price from (z) than the number of shares obtained by dividing issuable upon conversion of the Designated Portion Debenture shall based upon the lesser of the Per Share Purchase Price by or the Average Price.
(d) In the event the Average Price calculated on a Reset Date is more than 130% VWAP but shall not be less than 200% $.10 per share. By way of example if the Issue Price, Reset VWAP equals $.17 then 20% of the Purchase Price will no longer reset would be subject to Reset$.17 but not .10. In Within three (3) Trading Days immediately following the event the Average Price calculated on a Reset Date is 200% or more than the Issue Price, then 50% of the Purchase Price shall no longer be subject to Reset.
(e) In no event will the Subscriber be required to return any Company Shares to the Company. Each Reset calculation shall be made independent of all other Reset calculations.
(f) The Company agrees to deliver the Additional Shares to the Subscriber in hand, or Redemption Amount (as defined herein), if such payment of the Redemption Amount is permitted hereunder, no later than ten (10) business days after notice from the Subscriber of the Designated Portion amount (the "Delivery Date"). The Company understands that a delay in the delivery of either the Additional Shares or failure to deliver the Redemption Amount described in Sections 9.2 and 9.3 beyond the Delivery Date could result in economic loss to the Subscriber. As compensation to the Subscriber for such lossPricing Period, the Company agrees shall issue to pay as liquidated damages payments each Purchaser, without the payment of additional consideration, such Purchaser’s Reset Shares. In implementation of the foregoing, to the Subscriber for late delivery extent that an issuance of Additional Reset Shares would result in a Purchaser or Redemption Amount beyond any of its affiliates beneficially owning in excess of 4.99% (the Delivery Date, in the amount of $100 per business day after the Delivery Date for each $10,000 of Designated Portion of Purchase Price for which a Reset has been calculated. Additionally, in the case of late payment “Maximum Percentage”) of the Redemption AmountCommon Stock, then the Company shall initially issue only such number of Reset Shares that would result in such Purchaser (together with such Purchaser’s affiliates) beneficially owning the Maximum Percentage of the Common Stock, and, except as otherwise provided below, no other Reset Shares shall be issuable to such Purchaser under this Section 5.2. After such initial issuance, and until all Reset Shares which otherwise would have been issued under this Section have been issued, from time to time the Company will pay on additional sum equal to 10% issue such number of such unissued Reset Shares so that such Purchaser (together such Purchaser’s affiliates) will beneficially own only the Maximum Percentage of the Designated Portion Common Stock. Such Purchaser shall, upon request, make written representations and warranties to the Company regarding its (together with its affiliates’) beneficial ownership to effectuate the foregoing. The Maximum Percentage limitation contained in this paragraph, Section 4(d) of the Purchase PriceDebenture and the limitation on exercise contained in Section 2(e) of the Warrants issued to such Purchaser pursuant to this Agreement shall be coordinated so that the aggregate beneficial ownership of such Purchaser (together with its affiliates) does not exceed the Maximum Percentage limitation. In connection therewith, issuances pursuant to this Section shall take precedence over issuances of any Warrant Shares issuable to such Purchaser. The Company provisions of this paragraph shall pay be implemented in a manner otherwise than in strict conformity with the terms this paragraph to correct this paragraph (or any payments incurred under this Section in immediately available funds upon demandportion hereof) which may be defective or inconsistent with the intended Maximum Percentage beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such Maximum Percentage limitation. The late payment charges described limitations contained in this Section 9.1(fparagraph shall apply to assignees of such Purchaser hereunder. For the purposes of this paragraph, beneficial ownership and all determinations and calculations (including, without limitation, with respect to calculations of percentage ownership) shall be payable through the date the Additional Shares or Redemption Amount is received determined in hand by the Subscriber.
(gaccordance with Section 13(d) Company Shares as defined and employed in this Subscription Agreement shall mean and include Additional Shares for all purposes including but not limited to Section 10 of this Subscription Agreement.
(h) Nothing contained herein or in any document referred to herein shall be deemed to establish or require the payment of a rate of interest or other charges in excess of the maximum permitted by applicable law. In Exchange Act and the event a rate of interest required or imputed to be paid or other charges hereunder exceed the maximum permitted by such law, any payments in excess of such maximum shall be credited against amounts owed by the Company to the Subscriber rules and thus refunded to the Companyregulations promulgated thereunder.
Appears in 1 contract
Sources: Securities Purchase Agreement (H & H Imports, Inc.)