Common use of Third Tranche Clause in Contracts

Third Tranche. (a) On the Third Tranche Closing Date, each Purchaser shall deposit with the Money Escrow Agent for future return or disbursement in accordance with this Section 2.4, an aggregate amount in United States dollars equal to the product of 50% of (x) the product of (1) 250,000 multiplied by (2) such Purchaser's First Tranche Percentage multiplied by (y) the Closing Price on the Trading Day immediately preceding the Third Tranche Closing Date. (b) Not later than the third Trading Day prior to the Third Tranche Closing Date, each Purchaser shall deliver a written notice ("Third Tranche Purchase Notice") via facsimile to the Seller specifying the number of Shares to be purchased by such Purchaser on the Third Tranche Settlement Date (as defined below), which notice (1) will specify a minimum number of Shares equal to the product of (x) 250,000 multiplied by (y) such Purchaser's First Tranche Percentage and (2) may not specify a number of Shares greater than the product of (x) 500,000 multiplied by (y) such Purchaser's First Tranche Percentage. The Shares indicated on all Third Tranche Purchase Notices or the notices delivered by the Purchasers under Section 2.4(d), as applicable, are collectively referred to as the "Third Tranche Shares". (c) On the 19 th Trading Day after the Third Tranche Closing Date (such date, the "Third Tranche Settlement Date"), subject to the provisions of Section 2.6 and this Section 2.4: (A) If the Seller shall have received either (x) notice from the Money Escrow Agent of the Money Escrow Agent's receipt of the funds required to have been delivered by the Purchasers pursuant to 2.4(a) and (if applicable) Section 2.4(c)(2), or (y) other reasonably acceptable evidence of the delivery of such funds to the Money Escrow Agent, the Seller shall deliver to each Purchaser's DTC Account through the Depository Trust Company DWAC system the number of Shares indicated in such Purchaser's Third Tranche Purchase Notice. (2) If the Third Tranche Per Share Purchase Price is greater than the quotient obtained by dividing (x) the funds deposited by a Purchaser under Section 2.4(a) by (y) the number of Third Tranche Shares to be acquired by such Purchaser (as specified in such Purchaser's Third Tranche Purchase Notice) (such quotient being referred to as the "Third Tranche Per Share Deposited Amount"), then such Purchaser shall deliver to the Money Escrow Agent an amount in United States dollars equal to the product of (a) the number of Third Tranche Shares to be acquired by such Purchaser multiplied by (b) the Third Tranche Per Share Purchase Price less the Third Tranche Per Share Deposited Amount. Following its receipt of (x) the funds required to be delivered by the Purchasers in accordance with this Section 2.4(c)(2) and (y) written confirmation from the Purchasers of their receipt of the Third Tranche Shares required to be delivered to them in accordance with Section 2.4(c)(1), the Money Escrow Agent will disburse to the Seller the aggregate amounts deposited by all Purchasers for Third Tranche Shares other than an amount equal to 3% of the aggregate amounts deposited by all Purchasers other than S.R. West Corp., which shall be disbursed to or as directed by S.R. West Corp. in accordance with wire instructions delivered by S.R.West Corp. for such purpose. (3) If the Third Tranche Per Share Purchase Price is less than the Third Tranche Per Share Deposited Amount, then the Escrow Agent will return to or as directed by each Purchaser an amount in United States dollars equal to the product of (i) the number of Third Tranche Shares to be acquired by such Purchaser (as specified in such Purchaser's Third Tranche Purchase Notice) multiplied by (ii) the Third Tranche Per Share Deposited Amount less the Third Tranche Per Share Purchase Price. Following its receipt of written confirmation from the Purchasers of their receipt of (x) the Third Tranche Shares required to be delivered to them in accordance with Section 2.4(c)(1) and (y) the funds required to have been delivered to the Purchasers under this Section 2.4(c)(3), the Money Escrow Agent shall disburse to the Seller the aggregate amounts deposited by all Purchasers for Third Tranche Shares, less the amounts required to be returned to the Purchasers under this Section 2.4(c)(3), other than an amount equal to 3% of the aggregate amounts deposited by all Purchasers other than S.R. West Corp. and not required to be returned under this Section 2.4(c)(3), which shall be disbursed to or as directed by S.R. West Corp. in accordance with wire instructions delivered by S.R. West Corp. for such purpose. (4) If the Third Tranche Per Share Purchase Price equals the Third Tranche Per Share Deposited Amount, then following its receipt of written confirmation from the Purchasers of their receipt of the Third Tranche Shares required to be delivered to them in accordance with Section 2.4(c)(1), the Money Escrow Agent will disburse to the Seller the aggregate amounts deposited by all Purchasers for Third Tranche Shares, other than an amount equal to 3% of the aggregate amounts deposited by all Purchasers other than S.R. West Corp., which shall be disbursed to or as directed by S.R. West Corp. in accordance with wire instructions delivered by S.R. West Corp. for such purpose. (d) If the average of the Closing Prices during the seventeen Trading Days immediately following (but not including) the Third Tranche Closing Date (the "Third Tranche Pricing Period") is greater than the Ceiling Price or less than the Floor Price, then each Purchaser shall have the right (but not the obligation) to purchase up to a number of Third Tranche Shares equal to the product of (1) 750,000 multiplied by (2) such Purchaser's First Tranche Percentage at a purchase price per Share equal to the Third Tranche Per Share Purchase Price. To exercise this right, a Purchaser will deliver to the Seller, via facsimile no later than the first Trading Day after the Third Tranche Pricing Period, a notice specifying the number of Third Tranche Shares to be purchased by such Purchaser under this Section 2.4(d). If one or more Purchasers has elected to acquire Third Tranche Shares under this Section 2.4(d), then, subject to the provisions of Sections 2.6 (other than Section 2.6(e)), on the Third Tranche Settlement Date: (1) If the Seller shall have received either (x) notice from the Money Escrow Agent of the Money Escrow Agent's receipt of the funds required to have been delivered by the Purchasers pursuant to Section 2.4(a) and, if applicable 2.4(d)(2), or (y) other reasonably acceptable evidence of the delivery of such funds to the Money Escrow Agent, the Seller shall deliver to each Purchaser who exercised its rights to acquire Third Tranche Shares under this Section 2.4(d), the Third Tranche Shares specified by such Purchaser in its exercise notice, to such Purchaser's DTC Account through the Depository Trust Company DWAC system. (2) If (a) the product of (x) the number of Third Tranche Shares to be acquired by a Purchaser under this Section 2.4(d) multiplied by (y) the Third Tranche Per Share Purchase Price, is greater than (b) the amount deposited by such Purchaser under Section 2.4(a), then such Purchaser shall deliver to the Money Escrow Agent an amount in United States dollars equal to (a) the product of (x) the number of Third Tranche Shares to be acquired by such Purchaser multiplied by (y) the Third Tranche Per Share Purchase Price, less (b) the amount deposited by such Purchaser under Section 2.4(a). Following its receipt of (x) the funds required to be delivered by the Purchasers in accordance with this Section 2.4(d)(2) and (y) written confirmation from the Purchasers of their receipt of the Third Tranche Shares required to be delivered to them in accordance with Section 2.4(d)(1), the Money Escrow Agent will disburse to the Seller the aggregate amounts deposited by all Purchasers for Third Tranche Shares other than an amount equal to 3% of the aggregate amounts deposited by all Purchasers other than S.R. West Corp., which shall be disbursed to or as directed by S.R. West Corp. in accordance with wire instructions delivered by S.R. West Corp. for such purpose. (3) If (a) the amount deposited by such Purchaser under Section 2.4(a) is greater than (b) the product of (x) the number of Third Tranche Shares to be acquired by a Purchaser multiplied by (y) the Third Tranche Per Share Purchase Price, then the Money Escrow Agent will (A) return to or as directed by such Purchaser an amount equal to (a) the amount deposited by such Purchaser under Section 2.4(a) less (b) the product of (x) the number of Third Tranche Shares to be acquired by such Purchaser under this Section 2.4(d) multiplied by (y)

Third Tranche. If, within one hundred eighty (a180) On calendar days after the date of this Agreement (the “Third Tranche Condition Period”), (i) an Event of Default (as defined in the Note) has not occurred under the Note, (ii) no event has occurred that, with the passage of time, would be an Event of Default (as defined in the Note) under the Note, (iii) the Common Stock is listed for trading on the Nasdaq Capital Market, (iv) the Company is in compliance with all of the listing standards of Nasdaq Capital Market, (v) the Company has not received any delisting or deficiency notice from Nasdaq Capital Market that remains uncured (for the avoidance of doubt, any cure period or grace period granted by Nasdaq shall be irrelevant for purposes of satisfying this condition since the deficiency must be fully cured), (vi) a registration statement under the 1933 Act covering the Holder’s resale at prevailing market prices of all of the June 2024 Securities issued and to be issued in connection with the Transaction Documents, Third Tranche Transaction Documents, and Third Tranche Transaction Documents shall have been declared effective by the SEC and remains effective, (vii) the Common Stock shall not have traded at a price per share of less than the then applicable Floor Price (as defined in the Note) for a period of fifteen (15) consecutive calendar days after the date of this Agreement, (viii) the Company has not breached any covenant, agreement, or other term or condition contained in the Transaction Documents, and (ix) the Second Tranche closed pursuant to the terms of Section 8(t) of this Agreement (all of the aforementioned conditions in (i) through (ix) of this sentence are referred to herein as the “Third Tranche Funding Conditions”), then, at the Company’s option, which may be exercised by giving written notice to the Buyer within the Third Tranche Closing Date, each Purchaser shall deposit with the Money Escrow Agent for future return or disbursement in accordance with this Section 2.4, an aggregate amount in United States dollars equal to the product of 50% of (x) the product of (1) 250,000 multiplied by (2) such Purchaser's First Tranche Percentage multiplied by (y) the Closing Price on the Trading Day immediately preceding Condition Period so long the Third Tranche Closing Date. Funding Conditions are satisfied (b) Not later than the “Third Tranche Funding Notice”), the Buyer shall fund the third Trading Day prior to tranche purchase price amount specified on the Buyer’s signature page hereto (the “Third Tranche) under the same terms and conditions as the Transaction Documents (the “Third Tranche Closing Date, each Purchaser shall deliver a written notice Transaction Documents”) within seven ("Third Tranche Purchase Notice"7) via facsimile to the Seller specifying the number of Shares to be purchased by such Purchaser on the Third Tranche Settlement Date (as defined below), which notice (1) will specify a minimum number of Shares equal to the product of (x) 250,000 multiplied by (y) such Purchaser's First Tranche Percentage and (2) may not specify a number of Shares greater than the product of (x) 500,000 multiplied by (y) such Purchaser's First Tranche Percentage. The Shares indicated on all Third Tranche Purchase Notices or the notices delivered by the Purchasers under Section 2.4(d), as applicable, are collectively referred to as the "Third Tranche Shares". (c) On the 19 th Trading Day calendar days after the Third Tranche Closing Date (such date, the "Third Tranche Settlement Date"), subject to the provisions of Section 2.6 and this Section 2.4: (A) If the Seller shall have received either (x) notice from the Money Escrow Agent of the Money Escrow Agent's receipt of the funds required to have been delivered by the Purchasers pursuant to 2.4(a) and (if applicable) Section 2.4(c)(2), or (y) other reasonably acceptable evidence of the delivery of such funds to the Money Escrow Agent, the Seller shall deliver to each Purchaser's DTC Account through the Depository Trust Company DWAC system the number of Shares indicated in such Purchaser's Third Tranche Purchase Notice. (2) If the Third Tranche Per Share Purchase Price is greater than the quotient obtained by dividing (x) the funds deposited by a Purchaser under Section 2.4(a) by (y) the number of Third Tranche Shares to be acquired by such Purchaser (as specified in such Purchaser's Third Tranche Purchase Notice) (such quotient being referred to as the "Third Tranche Per Share Deposited Amount"), then such Purchaser shall deliver to the Money Escrow Agent an amount in United States dollars equal to the product of (a) the number of Third Tranche Shares to be acquired by such Purchaser multiplied by (b) the Third Tranche Per Share Purchase Price less the Third Tranche Per Share Deposited Amount. Following its receipt of (x) the funds required to be delivered by the Purchasers in accordance with this Section 2.4(c)(2) and (y) written confirmation from the Purchasers of their Buyer’s receipt of the Third Tranche Shares required Funding Notice (the “Third Tranche Funding Period”). For the avoidance of doubt, the Third Tranche Funding Conditions must continue to be satisfied during the Third Tranche Funding Period. The closing of the Third Tranche shall remain subject to the satisfaction of all of the other closing conditions and deliverables contained in each of the Third Tranche Transaction Documents to be delivered to them in accordance the Buyer with Section 2.4(c)(1)respect to the Third Tranche. Accordingly, and for the avoidance of doubt, the Money Escrow Agent will disburse to Company must provide signed copies of all of the Seller the aggregate amounts deposited by all Purchasers for applicable Third Tranche Shares other than an amount equal to 3% of the aggregate amounts deposited by all Purchasers other than S.R. West Corp., which shall be disbursed to or as directed by S.R. West Corp. in accordance Transaction Documents with wire instructions delivered by S.R.West Corp. for such purpose. (3) If the Third Tranche Per Share Purchase Price is less than the Third Tranche Per Share Deposited Amount, then the Escrow Agent will return to or as directed by each Purchaser an amount in United States dollars equal to the product of (i) the number of Third Tranche Shares to be acquired by such Purchaser (as specified in such Purchaser's Third Tranche Purchase Notice) multiplied by (ii) the Third Tranche Per Share Deposited Amount less the Third Tranche Per Share Purchase Price. Following its receipt of written confirmation from the Purchasers of their receipt of (x) the Third Tranche Shares required to be delivered to them in accordance with Section 2.4(c)(1) and (y) the funds required to have been delivered to the Purchasers under this Section 2.4(c)(3), the Money Escrow Agent shall disburse to the Seller the aggregate amounts deposited by all Purchasers for Third Tranche Shares, less the amounts required to be returned to the Purchasers under this Section 2.4(c)(3), other than an amount equal to 3% of the aggregate amounts deposited by all Purchasers other than S.R. West Corp. and not required to be returned under this Section 2.4(c)(3), which shall be disbursed to or as directed by S.R. West Corp. in accordance with wire instructions delivered by S.R. West Corp. for such purpose. (4) If the Third Tranche Per Share Purchase Price equals the Third Tranche Per Share Deposited Amount, then following its receipt of written confirmation from the Purchasers of their receipt of the Third Tranche Shares required to be delivered to them in accordance with Section 2.4(c)(1), the Money Escrow Agent will disburse to the Seller the aggregate amounts deposited by all Purchasers for Third Tranche Shares, other than an amount equal to 3% of the aggregate amounts deposited by all Purchasers other than S.R. West Corp., which shall be disbursed to or as directed by S.R. West Corp. in accordance with wire instructions delivered by S.R. West Corp. for such purpose. (d) If the average of the Closing Prices during the seventeen Trading Days immediately following (but not including) the Third Tranche Closing Date (the "Third Tranche Pricing Period") is greater than the Ceiling Price or less than the Floor Price, then each Purchaser shall have the right (but not the obligation) to purchase up to a number of Third Tranche Shares equal to the product of (1) 750,000 multiplied by (2) such Purchaser's First Tranche Percentage at a purchase price per Share equal respect to the Third Tranche Per Share Purchase Price. To exercise this right, a Purchaser will deliver to the Seller, via facsimile no later than the first Trading Day after and all other closing deliverables within the Third Tranche Pricing Period, Funding Period as a notice specifying the number condition of Third Tranche Shares to be purchased by such Purchaser under this Section 2.4(d). If one or more Purchasers has elected to acquire Third Tranche Shares under this Section 2.4(d), then, subject to the provisions closing of Sections 2.6 (other than Section 2.6(e)), on the Third Tranche Settlement Date: (1) If Tranche. For the Seller shall have received either (x) notice from the Money Escrow Agent avoidance of the Money Escrow Agent's receipt of the funds required to have been delivered by the Purchasers pursuant to Section 2.4(a) and, if applicable 2.4(d)(2), or (y) other reasonably acceptable evidence of the delivery of such funds to the Money Escrow Agent, the Seller shall deliver to each Purchaser who exercised its rights to acquire Third Tranche Shares under this Section 2.4(d)doubt, the Third Tranche Shares specified by such Purchaser in its exercise notice, to such Purchaser's DTC Account through the Depository Trust Company DWAC system. (2) If (a) the product of (x) the number of Third Tranche Shares to be acquired by a Purchaser under this Section 2.4(d) multiplied by (y) the Third Tranche Per Share Purchase Price, is greater than (b) the amount deposited by such Purchaser under Section 2.4(a), then such Purchaser shall deliver to the Money Escrow Agent an amount in United States dollars equal to (a) the product of (x) the number of Third Tranche Shares to be acquired by such Purchaser multiplied by (y) the Third Tranche Per Share Purchase Price, less (b) the amount deposited by such Purchaser under Section 2.4(a). Following its receipt of (x) the funds required to be delivered by the Purchasers in accordance with this Section 2.4(d)(2) and (y) written confirmation from the Purchasers of their receipt part of the Third Tranche Shares required to be delivered to them in accordance with Section 2.4(d)(1), the Money Escrow Agent will disburse to the Seller the aggregate amounts deposited by all Purchasers for Third Tranche Shares other than an amount equal to 3% of the aggregate amounts deposited by all Purchasers other than S.R. West Corp., which shall be disbursed to or as directed by S.R. West Corp. in accordance with wire instructions delivered by S.R. West Corp. for such purposeJune 2024 Offering. (3) If (a) the amount deposited by such Purchaser under Section 2.4(a) is greater than (b) the product of (x) the number of Third Tranche Shares to be acquired by a Purchaser multiplied by (y) the Third Tranche Per Share Purchase Price, then the Money Escrow Agent will (A) return to or as directed by such Purchaser an amount equal to (a) the amount deposited by such Purchaser under Section 2.4(a) less (b) the product of (x) the number of Third Tranche Shares to be acquired by such Purchaser under this Section 2.4(d) multiplied by (y)

Third Tranche. (a) On the Third Tranche Closing Datelater of September 30, each Purchaser 2008 or 120 days after the effectiveness of the Resale Registration Statement covering the Purchased Shares purchased pursuant to Section 2.1, the Company shall deposit with deliver (i) to PERM another Subsequent Purchase Officer’s Certificate stating that the Money Escrow Agent for future return or disbursement in accordance with this Section 2.4, an aggregate amount in United States dollars equal Company’s closing conditions applicable to the product Closing of 50% of (x) the product of (1) 250,000 multiplied by (2) such Purchaser's First Tranche Percentage multiplied by (y) the Closing Price on the Trading Day immediately preceding the Third Tranche in Section 6.1(d) have been satisfied (the “Third Tranche Bring Down Representation”) as of the Closing DateDate for the Third Tranche and (ii) its proposed business plan outlining the use of proceeds received from PERM pursuant to the Closing of this Third Tranche (the “Third Tranche Business Plan”). The Subsequent Purchase Officer’s Certificate and the Third Tranche Business Plan shall be accompanied by reasonable supporting documentation for the statements made therein. (b) Not later than If the third Trading Day prior to Subsequent Purchase Officer’s Certificate makes the Third Tranche Closing DateBring Down Representation, each PERM shall have the same rights granted in Section 2.2(b) to review and verify the accuracy of the Subsequent Purchaser shall deliver a written notice ("Third Tranche Officer’s Certificate for 30 days from delivery of such Subsequent Purchase Notice") via facsimile to the Seller specifying the number of Shares to be purchased by such Purchaser on the Third Tranche Settlement Date (as defined below), which notice (1) will specify a minimum number of Shares equal to the product of (x) 250,000 multiplied by (y) such Purchaser's First Tranche Percentage and (2) may not specify a number of Shares greater than the product of (x) 500,000 multiplied by (y) such Purchaser's First Tranche Percentage. The Shares indicated on all Third Tranche Purchase Notices or the notices delivered by the Purchasers under Section 2.4(d), as applicable, are collectively referred to as the "Third Tranche Shares"Officer’s Certificate. (c) On the 19 th Trading Day after If PERM believes that the Third Tranche Closing Date (such dateBring Down Representation is inaccurate and as a result does not wish to consummate the subsequent purchase, it shall, within the 30-day period provided in Section 2.3(b), deliver to the Company a Disagreement Notice setting forth, in reasonable detail, the "Third Tranche Settlement Date"), subject to the provisions of Section 2.6 and this Section 2.4: (A) If the Seller shall have received either (x) notice from the Money Escrow Agent of the Money Escrow Agent's receipt of the funds required to have been delivered by the Purchasers pursuant to 2.4(a) and (if applicable) Section 2.4(c)(2), or (y) other reasonably acceptable evidence of the delivery of such funds to the Money Escrow Agent, the Seller shall deliver to each Purchaser's DTC Account through the Depository Trust Company DWAC system the number of Shares indicated in such Purchaser's Third Tranche Purchase Notice. (2) If reasons for its belief that the Third Tranche Per Share Purchase Price Bring Down Representation is greater than the quotient obtained by dividing (x) the funds deposited by a Purchaser under Section 2.4(a) by (y) the number of Third Tranche Shares inaccurate. PERM shall be deemed to be acquired by such Purchaser (as specified in such Purchaser's Third Tranche Purchase Notice) (such quotient being referred to as the "Third Tranche Per Share Deposited Amount"), then such Purchaser shall deliver to the Money Escrow Agent an amount in United States dollars equal to the product of (a) the number of Third Tranche Shares to be acquired by such Purchaser multiplied by (b) have agreed that the Third Tranche Per Share Purchase Price less Bring Down Representation is accurate (i) unless it has timely delivered to the Third Tranche Per Share Deposited Amount. Following its receipt of (x) the funds required to be delivered by the Purchasers Company a Disagreement Notice in accordance with this Section 2.4(c)(2) the immediately preceding sentence and (y) written confirmation from the Purchasers of their receipt of the Third Tranche Shares required to be delivered to them in accordance with Section 2.4(c)(1), the Money Escrow Agent will disburse to the Seller the aggregate amounts deposited by all Purchasers for Third Tranche Shares other than an amount equal to 3% of the aggregate amounts deposited by all Purchasers other than S.R. West Corp., which shall be disbursed to or as directed by S.R. West Corp. in accordance with wire instructions delivered by S.R.West Corp. for such purpose. (3) If the Third Tranche Per Share Purchase Price is less than the Third Tranche Per Share Deposited Amount, then the Escrow Agent will return to or as directed by each Purchaser an amount in United States dollars equal to the product of (i) the number of Third Tranche Shares to be acquired by such Purchaser (as specified in such Purchaser's Third Tranche Purchase Notice) multiplied by (ii) the Third Tranche Per Share Deposited Amount less the Third Tranche Per Share Purchase Price. Following its receipt of written confirmation from the Purchasers of their receipt of (x) the Third Tranche Shares required to be if it has timely so delivered to them in accordance with Section 2.4(c)(1) and (y) the funds required to have been delivered a Disagreement Notice, except to the Purchasers under this Section 2.4(c)(3), the Money Escrow Agent shall disburse to the Seller the aggregate amounts deposited by all Purchasers for Third Tranche Shares, less the amounts required to be returned to the Purchasers under this Section 2.4(c)(3), other than an amount equal to 3% of the aggregate amounts deposited by all Purchasers other than S.R. West Corp. and not required to be returned under this Section 2.4(c)(3), which shall be disbursed to or as directed by S.R. West Corp. in accordance with wire instructions delivered by S.R. West Corp. for such purpose. (4) If the Third Tranche Per Share Purchase Price equals the Third Tranche Per Share Deposited Amount, then following its receipt of written confirmation from the Purchasers of their receipt of the Third Tranche Shares required to be delivered to them in accordance with Section 2.4(c)(1), the Money Escrow Agent will disburse to the Seller the aggregate amounts deposited by all Purchasers for Third Tranche Shares, other than an amount equal to 3% of the aggregate amounts deposited by all Purchasers other than S.R. West Corp., which shall be disbursed to or as directed by S.R. West Corp. in accordance with wire instructions delivered by S.R. West Corp. for such purposeextent specified therein. (d) If a Disagreement Notice is timely delivered to the average of Company, the Closing Prices during Company and PERM shall use their good faith efforts to reach agreement on the seventeen Trading Days immediately following (but not including) disputed items or amounts in order to determine whether the Third Tranche Closing Date Bring Down Representation is accurate. If the Company and PERM do not resolve all disputed items or amounts within 30 days after delivery of the Disagreement Notice, then the disputed items and amounts will be submitted for determination to a Deciding Arbitrator and resolved in accordance with the procedures in Section 2.2(d). (e) If it is finally determined pursuant to this Section 2.3 that the "Third Tranche Pricing Period"Bring Down Representation is accurate and PERM approves the Third Tranche Business Plan in writing, then, on the fifth Business Day next following such determination and approval at the principal executive offices of the Company (or at such other time and place as the Company and PERM may agree), PERM will purchase, and the Company will issue and sell to PERM, an amount of shares of Common Stock equal to the Third Tranche Share Amount, free and clear of all Liens, at a per share price equal to the Third Tranche Per Share Price (such purchase being the “Third Tranche”). (f) is greater than Notwithstanding the Ceiling Price provisions of this Section 2.3, the Parties acknowledge and agree that (i) the purchase and sale of shares pursuant to Section 2.3(e) Section 2.2(e)is intended to coincide with the Company’s approved use of proceeds from such sale as outlined in the Third Tranche Business Plan and (ii) the Company shall have five (5) Business Days from the Closing of the Third Tranche to use or less than deploy the Floor Priceproceeds from the Third Tranche in accordance with the Third Tranche Business Plan. In the event the Company cannot, then each Purchaser or believes it will not be able to, use or deploy the proceeds it receives from the Third Tranche within such 5-day period, the Company shall promptly notify PERM. Upon such notification, PERM, in its sole discretion, may elect to postpone the Closing of the Third Tranche until such time as the Company can comply with such 5-day requirement. If, after Closing the Third Tranche, the Company has not used or deployed the proceeds therefrom within five (5) Business Days of such Closing, PERM, in its sole discretion, shall have the right (but not the obligation) to purchase up require the Company to a number return the money PERM paid for the shares of Common Stock acquired in such Third Tranche Shares equal to the product of (1) 750,000 multiplied by (2) such Purchaser's First Tranche Percentage at a purchase price per Share equal to the Third Tranche Per Share Purchase Price. To exercise this right, a Purchaser will deliver to the Seller, via facsimile no later than the first Trading Day after the Third Tranche Pricing Period, a notice specifying the number of Third Tranche Shares to be purchased by such Purchaser under this Section 2.4(d). If one or more Purchasers has elected to acquire Third Tranche Shares under this Section 2.4(d), then, subject to the provisions of Sections 2.6 (other than Section 2.6(e)), on the Third Tranche Settlement Date: (1) If the Seller shall have received either (x) notice from the Money Escrow Agent of the Money Escrow Agent's receipt of the funds required to have been delivered by the Purchasers pursuant to Section 2.4(a) and, if applicable 2.4(d)(2), or (y) other reasonably acceptable evidence of the delivery PERM in exchange for PERM’s return of such funds to the Money Escrow Agent, the Seller shall deliver to each Purchaser who exercised its rights to acquire Third Tranche Shares under this Section 2.4(d), the Third Tranche Shares specified by such Purchaser in its exercise notice, to such Purchaser's DTC Account through the Depository Trust Company DWAC systemshares. (2) If (a) the product of (x) the number of Third Tranche Shares to be acquired by a Purchaser under this Section 2.4(d) multiplied by (y) the Third Tranche Per Share Purchase Price, is greater than (b) the amount deposited by such Purchaser under Section 2.4(a), then such Purchaser shall deliver to the Money Escrow Agent an amount in United States dollars equal to (a) the product of (x) the number of Third Tranche Shares to be acquired by such Purchaser multiplied by (y) the Third Tranche Per Share Purchase Price, less (b) the amount deposited by such Purchaser under Section 2.4(a). Following its receipt of (x) the funds required to be delivered by the Purchasers in accordance with this Section 2.4(d)(2) and (y) written confirmation from the Purchasers of their receipt of the Third Tranche Shares required to be delivered to them in accordance with Section 2.4(d)(1), the Money Escrow Agent will disburse to the Seller the aggregate amounts deposited by all Purchasers for Third Tranche Shares other than an amount equal to 3% of the aggregate amounts deposited by all Purchasers other than S.R. West Corp., which shall be disbursed to or as directed by S.R. West Corp. in accordance with wire instructions delivered by S.R. West Corp. for such purpose. (3) If (a) the amount deposited by such Purchaser under Section 2.4(a) is greater than (b) the product of (x) the number of Third Tranche Shares to be acquired by a Purchaser multiplied by (y) the Third Tranche Per Share Purchase Price, then the Money Escrow Agent will (A) return to or as directed by such Purchaser an amount equal to (a) the amount deposited by such Purchaser under Section 2.4(a) less (b) the product of (x) the number of Third Tranche Shares to be acquired by such Purchaser under this Section 2.4(d) multiplied by (y)