DELIVERY OF PUT NOTICES. Subject to the terms and conditions of the Transaction Documents, and from time to time during the Open Period the Company may, in its sole discretion, deliver a Put Notice to the Investor which states the Put Amount of Shares which the Company intends to sell to the Investor during the Pricing Period. In addition, the Put Amount designated by the Company in a Put Notice shall be equal to one hundred seventy-five percent (175%) of the average daily volume for the forty (40) Trading Days prior to the applicable Put Notice Date multiplied by ninety-three (93%) of the lowest closing bid price during that period, but in no event less than $25,000 nor more than $1,000,000. Once the Put Notice is received by the Investor the Put Notice shall not be terminated, withdrawn or otherwise revoked by the Company except as set forth in this Agreement. During the Open Period, the Company shall not be entitled to submit a Put Notice until after the previous closing has been completed. The Purchase Price shall be equal to 93% of the average of the lowest closing bid price of the Company's Common Stock during the first five (5) Trading Days of the specified Pricing Period and the lowest closing bid price of the Company's Common Stock during the second five (5) Trading Days of the specified Pricing Period. Within ten (10) calendar days after the commencement of each calendar quarter occurring subsequent to the commencement of the Open Period, the Company undertakes to notify Investor as to its reasonable expectations as to the Put Amount it intends to raise during such calendar quarter, if any, through the issuance of Put Notices. Such notification shall constitute only the Company's good faith estimate with respect to such calendar quarter and shall in no way obligate the Company to raise such amount during such calendar quarter or otherwise limit its ability to deliver Put Notices during such calendar quarter. The failure by the Company to comply with this provision can be cured by the Company's notifying Investor at any time as to its reasonable expectations with respect to the current calendar quarter.
Appears in 2 contracts
Samples: Investment Agreement (Can Cal Resources LTD), Investment Agreement (Can Cal Resources LTD)
DELIVERY OF PUT NOTICES. (i) Subject to the terms and conditions of the Transaction Documents, and from time to time during the Open Period Period, the Company may, in its sole discretion, deliver a Put Notice to the Investor which states the Put Amount (designated in shares of Shares Common Stock) which the Company intends to sell to the Investor during on a Closing Date. The Put Notice shall be in the Pricing Periodform attached hereto as Exhibit "F" and incorporated herein by reference. In addition, the The Put Amount designated by the Company in the form of a Put Notice shall be equal as follows: The maximum amount that the Company shall be entitled to one hundred seventy-five percent (175%) of the average daily volume for the forty (40) Trading Days prior Put to the applicable Put Notice Date multiplied by ninety-three (93%) of the lowest closing bid price during that period, but in no event less than Investor shall be $25,000 nor more than $1,000,000. Once the Put Notice is received by the Investor the Put Notice shall not be terminated, withdrawn or otherwise revoked by the Company except as set forth in this Agreement100,000 per Put. During the Open Period, the Company shall not be entitled to submit a Put Notice until after the previous closing Closing has been completed. The Purchase Price for the Common Stock identified in the Put Notice shall be equal to 9395% (ninety-five percent) of the average of the four lowest closing posted bid price prices of the Company's Common Stock during the first Pricing Period. (ii) If the closing bid price during the applicable Pricing Period with respect to that Put Notice is less than 75% (seventy-five percent) of the closing bid prices of the Common Stock for the fifteen (515) Trading Days of prior to the specified Pricing Period and Put Notice Date ("MINIMUM ACCEPTABLE PRICE") the lowest Put Notice will terminate, only at the Company's request, sent via FACSIMILE to the Investor, the Investor will continue the Put until the FACSIMILE is received by the Investor. In the event that the closing bid price for the applicable Pricing Period is less than the Minimum Acceptable Price, the Company may elect in its sole discretion, by sending written notice to the Investor via facsimile, to cancel that portion of the Company's Put Notice remaining for that number of Trading Days remaining after the written cancellation notice is received by the Investors. The written notice shall be deemed received by the Investors on (i) the Trading Day it is actually received by facsimile or otherwise by the Investors if such notice is received on or prior to 9:00 A.M. New York time, or (ii) the immediately succeeding Trading Day if it is received by facsimile after 9:00 A.M. New York time on a Trading Day or at anytime on a day which is not a Trading Day. Notwithstanding the foregoing, there shall be a closing with respect to, and the Company shall be responsible for delivering, that number of shares of Common Stock during to the second five (5) Trading Days Investor that were sold by the Investors through and including the end of the specified Pricing PeriodTrading Day the written cancellation notice is received by the Investor. (iii) Within ten Thirteen (1013) calendar days after the commencement of each calendar quarter occurring subsequent to the commencement of the Open Period, the Company undertakes to notify Investor as to its reasonable expectations as to the Put Amount it intends to raise during such calendar quarter, if any, through the issuance of Put Notices. Such notification shall constitute only the Company's good faith estimate with respect to such calendar quarter and shall in no way obligate the Company to raise such amount during such calendar quarter or otherwise limit its ability to deliver Put Notices during such calendar quarter. The failure by the Company to comply with this provision can be cured by the Company's notifying Investor at any time as to its reasonable expectations with respect to the current calendar quarter.
Appears in 2 contracts
Samples: Investment Agreement (Xtreme Companies Inc), Investment Agreement (Xtreme Companies Inc)
DELIVERY OF PUT NOTICES. (I) Subject to the terms and conditions of the Transaction Documents, and from time to time during the Open Period Period, the Company may, in its sole discretion, deliver a Put Notice to the Investor which states the dollar amount (designated in U.S. Dollars) (the "Put Amount of Shares Amount") ,which the Company intends to sell to the Investor during on a Closing Date (the Pricing Period"Put"). In addition, the Put Amount designated by the Company in a The Put Notice shall be in the form attached hereto as Exhibit C and incorporated herein by reference. The amount that the Company shall be entitled to Put to the Investor (the "Put Amount") shall be equal to one hundred seventy-five to, at the Company's election, either: (A) Two Hundred percent (175200%) of the average daily volume (U.S. market only) of the Common Stock for the forty twenty (4020) Trading Days prior to the applicable Put Notice Date Date, multiplied by ninety-the average of the three (93%3) of the lowest daily closing bid price during that period, but in no event less than $25,000 nor more than $1,000,000. Once prices immediately preceding the Put Notice is received by the Investor the Put Notice shall not be terminatedDate, withdrawn or otherwise revoked by the Company except as set forth in this Agreement(B) Five Hundred Thousand dollars ($500,000). During the Open Period, the Company shall not be entitled to submit a Put Notice until after the previous closing Closing has been completed. The Purchase Price for the Common Stock identified in the Put Notice shall be equal to 93% ninety-five percent (95)% of the average lowest closing Best Bid price of the Common Stock during the Pricing Period. (C) RESERVED (D) INVESTOR'S OBLIGATION TO PURCHASE SHARES. Subject to the conditions set forth in this Agreement, following the Investor's receipt of a validly delivered Put Notice, the Investor shall be required to purchase from the Company during the related Pricing Period that number of Shares having an aggregate Purchase Price equal to the lesser of (i) the Put Amount set forth in the Put Notice, and (ii) twenty percent (20%) of the aggregate trading volume of the Common Stock during the applicable Pricing Period times (x) the lowest closing bid price of the Company's Common Stock during the first five (5) Trading Days of the specified Pricing Period and the lowest closing bid price of the Company's Common Stock during the second five (5) Trading Days of the specified Pricing Period. Within ten (10) calendar days after the commencement of each calendar quarter occurring subsequent , but only if said Shares bear no restrictive legend, are not subject to stop transfer instructions, pursuant to Section 2(h), prior to the commencement of the Open Period, the Company undertakes to notify Investor as to its reasonable expectations as to the Put Amount it intends to raise during such calendar quarter, if any, through the issuance of Put Noticesapplicable Closing Date. Such notification shall constitute only the Company's good faith estimate with respect to such calendar quarter and shall in no way obligate the Company to raise such amount during such calendar quarter or otherwise limit its ability to deliver Put Notices during such calendar quarter. The failure by the Company to comply with this provision can be cured by the Company's notifying Investor at any time as to its reasonable expectations with respect to the current calendar quarter.(E) Reserved (F)
Appears in 1 contract
Samples: Investment Agreement Investment Agreement (Hyperdynamics Corp)
DELIVERY OF PUT NOTICES. Subject to the terms and conditions satisfaction of the Transaction Documentsconditions set forth in this Section 1, at any time and from time to time during the Open Period period beginning on and including the Trading Day (as defined below) immediately following the date on which the initial Registration Statement (as defined in the Registration Rights Agreement) filed pursuant to the Registration Rights Agreement is declared effective (the "EFFECTIVE DATE") by the Securities and Exchange Commission (the "SEC") and ending on the earlier of (i) the date which is twenty-four (24) months from the Effective Date, and (ii) termination of this Agreement in accordance with Section 8, (the time period between the Effective Date and the earlier of (i) and (ii) being known as the "OPEN PERIOD"), the Company may, in its sole discretion, deliver a Put Notice written notice to the Investor which states (the "PUT NOTICE"). The Put Amount Notice shall state the dollar amount (the "DOLLAR AMOUNT") of Shares which the Company intends to sell to the Investor during the Pricing Periodperiod beginning on the Trading Day immediately following the date which the Investor receives the Put Notice (the "PUT NOTICE DATE") and ending on and including the date which is ten (10) Trading Days after such Put Notice Date (the "PURCHASE PERIOD"). A Put Notice shall be deemed delivered on (x) the Trading Day it is received by facsimile or otherwise by the Investor if such notice is received prior to 12:00 noon Eastern Standard Time (receipt being deemed to occur if the Company possess a facsimile confirmation showing completed transmission by such time), or (y) the immediately succeeding Trading Day if it is received by facsimile or otherwise after 12:00 noon Eastern Standard Time on a Trading Day (receipt being documented as described in (x) above). No Put Notice may be deemed delivered, on a day that is not a Trading Day. For purposes of this Agreement, "TRADING DAY" shall mean any day on which the Principal Market (as defined in Section 1(f)) for the Common Stock is open for trading. In addition, the Put Dollar Amount designated by the Company in a Put Notice shall be equal to one hundred seventy-five percent (175%) in increments of the average daily volume for the forty (40) Trading Days prior to the applicable Put Notice Date multiplied by ninety-three (93%) of the lowest closing bid price during that period, but in no event not less than $25,000 nor 100,000 and not more than $1,000,0002,000,000 subject to the requirements set forth in this Agreement. Once the Put Notice is received by the Investor the Put Notice shall not be be, terminated, withdrawn or otherwise revoked by the Company except as set forth in this AgreementCompany. During the Open Period, Put Notices may be delivered no more frequently than once in each period of fifteen (15) consecutive Trading Days. The Dollar Amount that the Company shall not be entitled is permitted to submit a request with respect to each Put Notice until after depends on the previous closing has been completed. The Purchase Price shall be equal to 93% product of the average of daily trading volume and the lowest closing bid price of the Company's Common Stock during on the first five Principal Market (5as defined in Section 1(f)), (the "DOLLAR TRADING VOLUME"). The maximum Dollar Amount of the Put Notice will be calculated by multiplying the average of the Dollar Trading Volume for the thirty (30) Trading Days of immediately preceding the specified Pricing Period Put Notice Date, by 1.5 (the "MAXIMUM PUT AMOUNT"). The amount that the Company is able to draw down can be increased or decreased if mutually agreed upon by both parties in writing. For the ten (10) Trading Days immediately preceding both the Put Notice Date and the lowest applicable Closing Date, the average Dollar Trading Volume must be at least $75,000 and the average closing bid price for such ten (10) Trading Day period shall be greater than $.50. The price at which the Investor will purchase the Common Stock ("PURCHASE PRICE") will be 87.5% of the Company's Common Stock average of the lowest three closing bid prices during the second five ten (510) Trading Days of immediately preceding the specified Pricing Period. "Closing Date", as that term is defined in subsection 1(h); Within ten (10) calendar days after the commencement of each calendar quarter occurring subsequent to the commencement of the Open Period, the Company undertakes to notify Investor as to its reasonable expectations as to the Put Dollar Amount it intends to raise during such calendar quarter, if any, through the issuance of Put Notices. Such notification shall constitute only the Company's good faith estimate with respect to such calendar quarter and shall in no way obligate the Company to raise such amount during such calendar quarter or otherwise limit its ability to deliver Put Notices during such calendar quarter. The failure by the Company to comply with this provision can be cured by the Company's notifying Investor at any time as to its reasonable expectations with respect to the current calendar quarter.
Appears in 1 contract
DELIVERY OF PUT NOTICES. Subject to the terms and conditions of the Transaction Documents, and from time to time during the Open Period the Company may, in its sole discretion, deliver a Put Notice to the Investor which states the Put Amount number of Shares which the Company intends to sell to the Investor during the Pricing Period. In addition, the The Put Amount designated by the Company in may be a Put Notice shall be equal maximum of up to one hundred seventy-five percent (175%) of the average daily volume for the forty (40) Trading Days prior to the applicable Put Notice Date multiplied by ninety-three (93%) of the lowest closing bid price during that period, but in no event less than $25,000 nor more than $1,000,000200,000. Once the Put Notice is received by the Investor Investor, the Put Notice shall not be terminated, withdrawn or otherwise revoked by the Company except as set forth in this Agreement. During the Open Period, the Company shall not be entitled to submit a Put Notice until after the previous closing has been completed. The Purchase Price shall be equal to 9388% of the average Market Price. The Market Price shall be equal to the lowest daily VWAP of the lowest closing bid price of the Company's Common Stock during the first five Pricing Period. The Company shall, in its sole discretion, be entitled to terminate the balance of the current Put Notice, if the closing bid price during the applicable Pricing Period with respect to that Put Notice is less than seventy percent (570%) of the Volume Weighted Average Price of the Common Stock for the fifteen (15) Trading Days of prior to the specified Pricing Period and Put Notice (“Minimum Acceptable Price”). In the lowest event that the closing bid price for the applicable Pricing Period is less than the Minimum Acceptable Price, the Company may elect, by sending written notice to the Investors via facsimile, to cancel that portion of the Company's Put Notice remaining for that number of Trading Days remaining after the written cancellation notice is deemed received by the Investors. The written notice shall be deemed received by the Investors on (i) the Trading Day it is received by facsimile or otherwise by the Investors if such notice is received on or prior to 12:00 noon New York time, or (ii) the immediately succeeding Trading Day if it is received by facsimile after 12:00 noon New York time on a Trading Day or at anytime on a day which is not a Trading Day. The Company shall still be responsible however, for delivering that number of shares of Common Stock during that were sold by the second five (5) Trading Days Investors through and including the end of the specified Pricing PeriodTrading Day the written cancellation notice is deemed received by the Investors. Within ten (10) calendar days after the commencement of each calendar quarter occurring subsequent to the commencement of the Open Period, the Company undertakes to notify Investor as to its reasonable expectations as to the Put Amount it intends to raise during such calendar quarter, if any, through the issuance of Put Notices. Such notification shall constitute only the Company's good faith estimate with respect to such calendar quarter and shall in no way obligate the Company to raise such amount during such calendar quarter or otherwise limit its ability to deliver Put Notices during such calendar quarter. The failure by the Company to comply with this provision can be cured by the Company's notifying Investor at any time as to its reasonable expectations with respect to the current calendar quarter.
Appears in 1 contract
DELIVERY OF PUT NOTICES. (I) Subject to the terms and conditions of the Transaction Documents, and from time to time during the Open Period Period, the Company may, in its sole discretion, deliver a Put Notice to the Investor which states the Put Amount of Shares (designated in U.S. Dollars) which the Company intends to sell to the Investor during the Pricing Periodon a Closing Date. In addition, the Put Amount designated by the Company in a The Put Notice shall be in the form attached hereto as Exhibit F and incorporated herein by reference. The amount that the Company shall be entitled to Put to the Investor (the "Put Amount") shall be equal to one hundred seventy-five percent (175%) of the average daily volume for the forty (40) Trading Days prior an amount up to the applicable Put Notice Date multiplied by ninety-three (93%) of the lowest closing bid price during that period, but in no event less than $25,000 nor more than $1,000,000. Once the Put Notice is received by the Investor the Put Notice shall not be terminated, withdrawn or otherwise revoked by the Company except as set forth in this Agreement. During the Open Period, the Company shall not be entitled to submit a Put Notice until after the previous closing Closing has been completed. The Purchase Price for the Common Stock identified in the Put Notice shall be equal to 93% of the average ninety-eight (98%) of the lowest closing bid price of the Company's Common Stock during the first five Pricing Period. (5II) If any closing bid price during the applicable Pricing Period with respect to that Put Notice is less than 75% of the any closing bid prices of the Common Stock for the ten (10) Trading Days prior to the Put Notice Date (the "Minimum Acceptable Price"), the Put Notice will terminate at the Company's request. In the event that the closing bid price for the applicable Pricing Period is less than the Minimum Acceptable Price, the Company may elect, by sending written notice to the Investor to cancel the Put Notice. (C) RESERVED (D) INVESTOR'S OBLIGATION TO PURCHASE SHARES. Subject to the conditions set forth in this Agreement, following the Investor's receipt of a validly delivered Put Notice, the Investor shall be required to purchase from the Company during the related Pricing Period that number of Shares having an aggregate Purchase Price equal to the lesser of (i) the Put Amount set forth in the Put Notice, and (ii) 20% of the specified aggregate trading volume of the Common Stock during the applicable Pricing Period and times (x) the average of the lowest closing bid price prices of the Company's Common Stock during the second five (5) Trading Days of the specified Pricing Period. Within ten (10) calendar days after the commencement of each calendar quarter occurring subsequent , but only if said Shares bear no restrictive legend, are not subject to stop transfer instructions, pursuant to Section 2(h), prior to the commencement of applicable Closing Date. (E) Reserved (F) CONDITIONS TO INVESTOR'S OBLIGATION TO PURCHASE SHARES. Notwithstanding anything to the Open Periodcontrary in this Agreement, the Company undertakes shall not be entitled to notify deliver a Put Notice and the Investor shall not be obligated to purchase any Shares at a Closing (as to its reasonable expectations as to defined in Section 2(h)) unless each of the Put Amount it intends to raise during such calendar quarter, if any, through the issuance of Put Notices. Such notification following conditions are satisfied: (I) a Registration Statement shall constitute only the Company's good faith estimate with respect to such calendar quarter have been declared effective and shall remain effective and available for the resale of all the Registrable Securities (as defined in no way obligate the Company to raise such amount during such calendar quarter or otherwise limit its ability to deliver Put Notices during such calendar quarter. The failure by Registration Rights Agreement) at all times until the Company to comply with this provision can be cured by the Company's notifying Investor at any time as to its reasonable expectations Closing with respect to the current calendar quarter.subject Put Notice; (II) at all times during the period beginning on the related Put Notice Date and ending on and including the related Closing Date, the Common Stock shall have been listed on the Principal Market and shall not have been suspended from trading thereon for a period of two (2) consecutive Trading Days during the Open Period and the Company shall not have been notified of any pending or threatened proceeding or other action to suspend the trading of the Common Stock; (III) the Company has complied with its obligations and is otherwise not in breach of a material provision of, or in default under, this Agreement, the Registration Rights Agreement or any other agreement executed in connection herewith which has not been corrected prior to delivery of the Put Notice Date; (IV) no injunction shall have been issued and remain in force, or action commenced by a governmental authority which has not been stayed or abandoned, prohibiting the purchase or the issuance of the Securities; and (V) the issuance of the Securities will not violate any shareholder approval requirements of the Principal Market. If any of the events described in clauses (i) through (v) above occurs during a Pricing Period, then the Investor shall have no obligation to purchase the Put Amount of Common Stock set forth in the applicable Put Notice. (G) RESERVED (H)
Appears in 1 contract
Samples: 3 Investment Agreement (Newave Inc)
DELIVERY OF PUT NOTICES. Subject to the terms and conditions of the Transaction Documents, at any time and from time to time during the Open Period Period, the Company may, in its sole discretion, deliver a Put Notice to the Investor which states (i) the Put Amount of Shares which the Company intends to sell to the Investor during the Pricing PeriodPeriod and (ii) a minimum Purchase Price per Share with regard to the related Pricing Period (the "COMPANY DESIGNATED MINIMUM PRICE"). In additionIf the Company fails to designate a Company Designated Minimum Price in a Put Notice, the Company Designated Minimum Price for the related Pricing Period shall be the Minimum Acceptable Price. The Put Amount designated by the Company in a Put Notice shall be equal to one not exceed three hundred seventy-five percent (175300%) of the average daily trading volume (U.S. market only) of the Common Stock for the forty ten (4010) Trading Days prior to the applicable Put Notice Date multiplied by ninety-the average of the three (93%3) daily closing bid prices of the lowest closing bid price during that periodCommon Stock immediately preceding the Put Date, but and in no event less than $25,000 nor more than shall the Put Amount exceed $1,000,000. Once the Put Notice is received by the Investor the Put Notice shall not be terminated, withdrawn or otherwise revoked by the Company except as set forth in this Agreement. During the Open Period, the Company shall not be entitled to submit a Put Notice to the Investor until after the previous closing Closing has been completed. The Purchase Price shall be equal to 93% of the average of the five (5) lowest closing bid prices of the Common Stock during the Pricing Period. Notwithstanding any provision of this Agreement to the contrary, the Company shall, in its sole discretion, be entitled to terminate its obligation to sell Shares to the Investor pursuant to a Put Notice for the balance of the applicable Pricing Period if the closing bid price of the Company's Common Stock during the first five (5) Trading Days of the specified such Pricing Period is less than the greater of (i) the Minimum Acceptable Price and (ii) the lowest Company Designated Minimum Price. In the event that the closing bid price of the Company's Common Stock for the applicable Pricing Period is less than the greater of the Minimum Acceptable Price and the Company Designated Minimum Price, the Company may elect, by sending written notice to the Investor via facsimile, to cancel the portion of its obligation to sell Shares to the Investor during such Pricing Period for the second five (5) number of Trading Days remaining in such Pricing Period after the written cancellation notice is DEEMED RECEIVED by the Investor. The written notice shall be DEEMED RECEIVED by the Investor on (i) the Trading Day it is received by facsimile or otherwise by the Investors if such notice is received on or prior to 12:00 noon New York time, or (ii) the immediately succeeding Trading Day if it is received by facsimile after 12:00 noon New York time on a Trading Day or at anytime on a day which is not a Trading Day. The Company shall still be responsible however, for delivering that number of shares of Common Stock to the Escrow Agent that were sold by the Investor through and including the end of the specified Pricing PeriodTrading Day the written cancellation notice is DEEMED RECEIVED by the Investors. Within ten (10) calendar days after the commencement of each calendar quarter occurring subsequent to the commencement of the Open Period, the Company undertakes to notify Investor as to its reasonable expectations as to the Put Amount it intends to raise during such calendar quarter, if any, through the issuance of Put Notices. Such notification shall constitute only the Company's good faith estimate with respect to such calendar quarter and shall in no way obligate the Company to raise such amount during such calendar quarter or otherwise limit its ability to deliver Put Notices during such calendar quarter. The failure by the Company to comply with this provision can be cured by the Company's notifying Investor at any time as to its reasonable expectations with respect to the current calendar quarter.
Appears in 1 contract
DELIVERY OF PUT NOTICES. Subject to the terms and conditions of the Transaction Documents, and from time to time during the Open Period the Company may, in its sole discretion, deliver a Put Notice to the Investor which states the Put Amount of Shares which the Company intends to sell to the Investor during the Pricing Period. In addition, the The maximum Put Amount designated by the Company in a Put Notice shall be equal to one hundred seventy-five percent (175%) of the average daily volume (U.S. market only) for the forty (40) Trading Days prior to the applicable Put Notice Date multiplied by ninety-the average of the three (93%3) of the lowest daily closing bid price during that periodprices immediately preceding the Put Date, but in no event less than $25,000 nor more than $1,000,000. Once the Put Notice is received by the Investor the Put Notice shall not be terminated, withdrawn or otherwise revoked by the Company except as set forth in this Agreement. During the Open Period, the Company shall not be entitled to submit a Put Notice until after the previous closing Closing has been completed. The Purchase Price shall be equal to 93% ninety-seven percent (97%) of the average of the four (4) lowest closing bid price prices of the Company's Common Stock during the first five (5) Trading Days Day Pricing Period. The Company shall, in its sole discretion, be entitled to terminate the balance of the specified Pricing Period and current Put Notice, if the lowest closing bid price during the applicable Pricing Period with respect to that Put Notice is less than seventy-five percent (75%) of the Company's Volume Weighted Average Price of the Common Stock during for the second five fifteen (515) Trading Days prior to the Put Notice Date (“MINIMUM ACCEPTABLE PRICE”). In the event that the closing bid price for the applicable Pricing Period is less than the Minimum Acceptable Price, the Company may elect, by sending written notice to the Investor via facsimile, to cancel that portion of the specified Pricing PeriodPut Notice remaining for that number of Trading Days remaining after the written cancellation notice is deemed received by the Investor. The written notice shall be deemed received by the Investor on (i) the Trading Day it is received by facsimile or otherwise by the Investor if such notice is received on or prior to 12:00 noon New York time, or (ii) the immediately succeeding Trading Day if it is received by facsimile after 12:00 noon New York time on a Trading Day or at anytime on a day which is not a Trading Day. The Company shall still be responsible however, for delivering that number of shares of Common Stock to the Escrow Agent that were sold by the Investor through and including the end of the Trading Day the written cancellation notice is deemed received by the Investor. Within ten (10) calendar days after the commencement of each calendar quarter occurring subsequent to the commencement of the Open Period, the Company undertakes to notify Investor as to its reasonable expectations as to the Put Amount it intends to raise during such calendar quarter, if any, through the issuance of Put Notices. Such notification shall constitute only the Company's good faith estimate with respect to such calendar quarter and shall in no way obligate the Company to raise such amount during such calendar quarter or otherwise limit its ability to deliver Put Notices during such calendar quarter. The failure by the Company to comply with this provision can be cured by the Company's notifying Investor at any time as to its reasonable expectations with respect to the current calendar quarter.
Appears in 1 contract
DELIVERY OF PUT NOTICES. Subject to the terms and conditions of the Equity Line Transaction Documents, and from time to time during the Open Period Period, the Company may, in its sole discretion, deliver a Put Notice to the Investor which states the number of shares of Common Stock (the “Put Amount of Shares Amount”) which the Company intends to sell to the Investor during on a Closing Date (the Pricing Period“Put”). In addition, the Put Amount designated by the Company The number of Shares in a Put Notice shall be equal to one hundred seventy-five percent (175%) of the average daily volume for the forty (40) Trading Days prior to the applicable Put Notice Date multiplied by ninety-three (93%) of the lowest closing bid price during that period, but in no event less than $25,000 nor more than $1,000,000. Once the Put Notice is received by the Investor the any Put Notice shall not be terminated, withdrawn or otherwise revoked by the Company except as set forth in this Agreementexceed five hundred thousand shares (500,000). During the Open Period, the Company shall not be entitled to submit a Put Notice until after the previous closing Pricing Period for the prior Put has been completed. The Purchase Price Common Stock identified in the Put Notice shall be purchased for a price equal to 93% of the average of the lowest closing bid price of the Company's Common Stock during the first five (5) Trading Days of the specified Pricing Period and the lowest closing bid price of the Company's Common Stock during the second five (5) Trading Days of the specified Pricing PeriodPurchase Price. Within ten two (102) calendar days after the commencement of each calendar quarter occurring subsequent delivering a Put Notice to the commencement of the Open PeriodInvestor, the Company undertakes shall deliver to notify the Investor pursuant to this Agreement, certificates representing the Shares to be issued to the Investor on such date and registered in the name of the Investor; and (II) In lieu of delivering physical certificates representing the Securities and provided that the Company’s transfer agent then is participating in The Depository Trust Company (“DTC”) Fast Automated Securities Transfer (“FAST”) program, upon request of the Investor, the Company shall use all commercially reasonable efforts to cause its transfer agent to electronically transmit the Securities by crediting the account of the Investor’s prime broker (as to specified by the Investor within a reasonable period in advance of the Investor’s notice) with DTC through its reasonable expectations as to Deposit Withdrawal Agent Commission (“DWAC”) system. The price for the Put Amount it intends will be determined by multiplying the number of Shares to raise during such calendar quarterbe delivered specified in the Put Notice by the Purchase Price outlined in that particular Put. In the event the Shares are not sufficient to cover the entire Put, if any, through the issuance of Put Notices. Such notification shall constitute only the Company's good faith estimate with respect to such calendar quarter and shall in no way obligate the Company shall immediately deliver more Shares pursuant to raise such amount during such calendar quarter or otherwise limit its ability to deliver Put Notices during such calendar quarter. The failure a request by the Investor. In the event there is an excess of Shares for that Put, the Company will be able to comply with this provision can be cured by deduct that particular amount of excess Shares for the Company's notifying Investor at any time as to its reasonable expectations with respect to the current calendar quartersubsequent Put.
Appears in 1 contract
DELIVERY OF PUT NOTICES. Subject to the terms and conditions satisfaction of the Transaction Documentsconditions set forth in this Section 1, at any time and from time to time during the Open Period period beginning on and including the Trading Day (as defined below) immediately following the date on which the initial Registration Statement (as defined in the Registration Rights Agreement) filed pursuant to the Registration Rights Agreement is declared effective (the "EFFECTIVE DATE") by the Securities and Exchange Commission (the "SEC") and ending on the earlier of (i) the date which is eighteen (18) months from the Effective Date, and (ii) termination of this Agreement in accordance with Section 8 (the time period between the Effective Date and the earlier of (i) and (ii) being known as the "OPEN PERIOD"), the Company may, in its sole discretion, deliver a Put Notice written notice to the Investor which states (the "PUT NOTICE"). The Put Amount Notice shall state the dollar amount (the "DOLLAR AMOUNT") of Shares which that the Company intends to sell to the Investor during the Pricing Periodperiod beginning on the trading day immediately following the date which the Investor receives the Put Notice (the "PUT NOTICE DATE") and ending on and including the date which is ten (10) Trading Days after such Put Notice Date (the "PURCHASE PERIOD"). A Put Notice shall be deemed delivered on (x) the Trading Day it is received by facsimile or otherwise by the Investor if such notice is received prior to 12:00 noon Eastern Time (receipt being deemed to occur if the Company possess a facsimile confirmation showing completed transmission by such time), or (y) the immediately succeeding Trading Day if it is received by facsimile or otherwise after 12:00 noon Eastern Time on a Trading Day (receipt being documented as described in (x) above). No Put Notice may be deemed delivered, on a day that is not a Trading Day. For purposes of this Agreement, "TRADING DAY" shall mean any day on which the Principal Market (as defined in Section 1(f)) for the Common Stock is open for trading. In addition, the Put Dollar Amount designated by the Company in a Put Notice shall be equal to one hundred seventy-five percent (175%) in increments of the average daily volume for the forty (40) Trading Days prior to the applicable Put Notice Date multiplied by ninety-three (93%) of the lowest closing bid price during that period, but in no event not less than $25,000 nor 20,000 and not more than $1,000,000500,000 subject to the requirements set forth in this Agreement. Once the Put Notice is received by the Investor the Put Notice shall not be terminated, withdrawn or otherwise revoked by the Company except as set forth in this AgreementCompany. During the Open Period, the Company shall not Put Notices may be entitled to submit delivered no more frequently than once in each period of eleven (11) consecutive Trading Days, such that a Put Notice until after the previous closing has been completedmay not be given during a Purchase Period. The Purchase Price "VOLUME WEIGHTED AVERAGE PRICE" shall be as reported by Bloomberg Financial Markets ("BLOOMBERG") through its "Volume at Price" function or if not available through Bloomberg because of delisting, then the average of the bid prices of any market makers for the Company's Common Stock as reported in the "pink sheets" by the National Quotation Bureau, Inc. The maximum Dollar Amount (the "MAXIMUM PUT AMOUNT")of the Put Notice will be equal to 93500% of (i) the thirty (30) Trading Day average volume of the Common Stock times (ii) the Volume Weighted Average Price for the thirty (30) Trading Days immediately preceding the Put Notice Date. For the ten (10) Trading Days immediately preceding both the Put Notice Date and the applicable Closing Date, as defined in Section 1(h), the Volume Weighted Average Price must be at least $20,000. The price at which the Investor will purchase the Common Stock ("PURCHASE PRICE") will be 88% of the average of the lowest three closing bid price of the Company's Common Stock prices during the first five (5) Trading Days of ten days immediately preceding the specified Pricing Period and the lowest closing bid price of the Company's Common Stock during the second five (5) Trading Days of the specified Pricing Period. "Closing Date", as that term is defined in subsection 1(h); Within ten (10) calendar days after the commencement of each calendar quarter occurring subsequent to the commencement of the Open Period, the Company undertakes to notify Investor as to its reasonable expectations as to the Put Dollar Amount it intends to raise during such calendar quarter, if any, through the issuance of Put Notices. Such notification shall constitute only the Company's good faith estimate with respect to such calendar quarter and shall in no way obligate the Company to raise such amount during such calendar quarter or otherwise limit its ability to deliver Put Notices during such calendar quarter. The failure by the Company to comply with this provision can be cured by the Company's notifying Investor at any time as to its reasonable expectations with respect to the current calendar quarter.
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DELIVERY OF PUT NOTICES. (i) Subject to the terms and conditions of the ----------------------- Transaction Documents, and from time to time during the Open Period Period, the Company may, in its sole discretion, deliver a Put Notice to the Investor which states the Put Amount Amount(designated in shares of Shares Common Stock) which the Company intends to sell to the Investor during the Pricing Period. In addition, The Put Notice shall be in the form attached hereto as Exhibit "F" and incorporated herein by reference. The Company shall deliver a copy of the Put Notice to the Escrow Agent. The Put Amount designated by the Company in a Put Notice shall be equal to one two hundred seventy-five fifty percent (175250%) of the average daily volume (U.S. market only) of the Common Stock for the forty TEN (4010) Trading Days prior to the applicable Put Notice Date multiplied by ninety-the average of the three (93%3) of the lowest daily closing bid price during that periodprices immediately preceding the Put Date, but in no event less than $25,000 nor more than $1,000,000. Once the Put Notice is received by the Investor Investor, the Put Notice shall not be terminated, withdrawn or otherwise revoked by the Company except as set forth in Section (b)(ii) of this Agreement. During the Open Period, the Company shall not be entitled to submit a Put Notice until after the previous closing Closing has been completed. The Purchase Price for the Common Stock identified in the Put Notice shall be equal to 9392% of the average of the three (3) lowest closing bid price prices of the Company's Common Stock during the first five (5) Trading Days of the specified Pricing Period and the lowest closing bid price of the Company's Common Stock during the second five (5) Trading Days of the specified Pricing Period. Within ten (10) calendar days after the commencement of each calendar quarter occurring subsequent to the commencement Trading Day Pricing Period. No other terms, rights or provisions of the Open Period, the Company undertakes Agreement are or should be considered to notify Investor as to its reasonable expectations as to the Put Amount it intends to raise during such calendar quarter, if any, through the issuance of Put Notices. Such notification shall constitute only the Company's good faith estimate with respect to such calendar quarter and shall in no way obligate the Company to raise such amount during such calendar quarter or otherwise limit its ability to deliver Put Notices during such calendar quarter. The failure have been modified by the Company to comply with terms of this provision can be cured by Addendum and each party retains all other rights, obligations, privileges and duties contained in the Company's notifying Investor at any time as to its reasonable expectations with respect to the current calendar quarter.Agreement. Agreed and Accepted on this 29h day of August, 2002 :
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DELIVERY OF PUT NOTICES. Subject to the terms and conditions satisfaction of the Transaction Documentsconditions set forth in this Section 1, at any time and from time to time during the Open Period period beginning on and including the Trading Day (as defined below) immediately following the date on which the initial Registration Statement (as defined in the Registration Rights Agreement) filed pursuant to the Registration Rights Agreement is declared effective (the "EFFECTIVE DATE") by the Securities and Exchange Commission (the "SEC") and ending on the earlier of (i) the date which is eighteen (18) months from the Effective Date, and (ii) termination of this Agreement in accordance with Section 8 (the time period between the Effective Date and the earlier of (i) and (ii) being known as the "OPEN PERIOD"), the Company may, in its sole discretion, deliver a Put Notice written notice to the Investor which states (the "PUT NOTICE"). The Put Amount Notice shall state the dollar amount (the "DOLLAR AMOUNT") of Shares which that the Company intends to sell to the Investor during the Pricing Periodperiod beginning on the trading day immediately following the date which the Investor receives the Put Notice (the "PUT NOTICE DATE") and ending on and including the date which is ten (10) Trading Days after such Put Notice Date (the "PURCHASE PERIOD"). A Put Notice shall be deemed delivered on (x) the Trading Day it is received by facsimile or otherwise by the Investor if such notice is received prior to 12:00 noon Eastern Time (receipt being deemed to occur if the Company possess a facsimile confirmation showing completed transmission by such time), or (y) the immediately succeeding Trading Day if it is received by facsimile or otherwise after 12:00 noon Eastern Time on a Trading Day (receipt being documented as described in (x) above). No Put Notice may be deemed delivered, on a day that is not a Trading Day. For purposes of this Agreement, "TRADING DAY" shall mean any day on which the Principal Market (as defined in Section 1(f)) for the Common Stock is open for trading. In addition, the Put Dollar Amount designated by the Company in a Put Notice shall be equal to one hundred seventy-five percent (175%) in increments of the average daily volume for the forty (40) Trading Days prior to the applicable Put Notice Date multiplied by ninety-three (93%) of the lowest closing bid price during that period, but in no event not less than $25,000 nor 100,000 and not more than $1,000,0005,000,000 subject to the requirements set forth in this Agreement. Once the Put Notice is received by the Investor the Put Notice shall not be terminated, withdrawn or otherwise revoked by the Company except as set forth in this AgreementCompany. During the Open Period, the Company shall not Put Notices may be entitled to submit delivered no more frequently than once in each period of eleven (11) consecutive Trading Days, such that a Put Notice until after the previous closing has been completedmay not be given during a Purchase Period. The Purchase Price shall be equal Dollar Amount that the Company is permitted to 93% request with respect to each Put Notice depends on the product of the daily trading volume and the average of the lowest closing bid trade price of the Company's Common Stock during on the first five Principal Market (5as defined in Section 1(f)), (the "VOLUME WEIGHTED AVERAGE PRICE"). The Volume Weighted Average Price shall be as reported by Bloomberg Financial Markets ("BLOOMBERG") Trading Days through its "Volume at Price" function or if not available through Bloomberg because of delisting, then the average of the specified Pricing Period and the lowest closing bid price prices of any market makers for the Company's Common Stock during as reported in the second five "pink sheets" by the National Quotation Bureau, Inc. The maximum Dollar Amount of the Put Notice will be calculated by multiplying the average of the Volume Weighted Average Price for the thirty (530) Trading Days of immediately preceding the specified Pricing PeriodPut Notice Date, by (1.5) (the "MAXIMUM PUT AMOUNT"). Within The amount that the Company is able to draw down can be increased or decreased if mutually agreed upon by both parties in writing. For the ten (10) calendar days after Trading Days immediately preceding both the commencement of each calendar quarter occurring subsequent to Put Notice Date and the commencement of the Open Periodapplicable Closing Date, as defined in Section 1(h), the Company undertakes to notify Investor as to its reasonable expectations as to the Put Amount it intends to raise during such calendar quarter, if any, through the issuance of Put Notices. Such notification shall constitute only the Company's good faith estimate with respect to such calendar quarter and shall in no way obligate the Company to raise such amount during such calendar quarter or otherwise limit its ability to deliver Put Notices during such calendar quarterVolume Weighted Average Price must be at least $75,000. The failure by price at which the Company to comply with this provision can Investor will purchase the Common Stock ("PURCHASE PRICE") will be cured by the Company's notifying Investor at any time as to its reasonable expectations with respect to the current calendar quarter.follows:
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DELIVERY OF PUT NOTICES. (I) Subject to the terms and conditions of the Transaction Documents, and from time to time during the Open Period Period, the Company may, in its sole discretion, deliver a Put Notice to the Investor which states the Put Amount (designated in shares of Shares Common Stock) which the Company intends to sell to the Investor during the Pricing Periodon a Closing Date. In addition, the Put Amount designated by the Company in a The Put Notice shall be in the form attached hereto as Exhibit B and incorporated herein by reference. The amount that the Company shall be entitled to Put to the Investor (the "Put Amount") shall be equal to one hundred seventy-five percent to, at the Company's election, either: (175%A) 200% of the average daily volume (U.S. market only) of the Common Stock for the forty (40) 20 Trading Days prior to the applicable Put Notice Date Date, multiplied by ninety-three (93%) the average of the lowest three daily closing bid price during prices immediately preceding the Put Date, or (B) $25,000; provided that period, but in no event less than $25,000 nor will the Put Amount be more than $1,000,000. Once the Put Notice is received by the Investor the Put Notice shall not be terminated, withdrawn or otherwise revoked by the Company except as set forth in this Agreement1,000,000 with respect to any single Put. During the Open Period, the Company shall not be entitled to submit a Put Notice until after the previous closing Closing has been completed. The Purchase Price for the Common Stock identified in the Put Notice shall be equal to 9395% of the average of the lowest closing bid price of the Company's Common Stock during the first five Pricing Period. (5II) Trading Days of the specified Pricing Period and the lowest If any closing bid price during the applicable Pricing Period with respect to that Put Notice is less than 75% of the any closing bid prices of the Common Stock for the ten Trading Days prior to the Put Notice Date (the "Minimum Acceptable Price"), the Put Notice will terminate at the Company's Common Stock during request. In the second five (5) Trading Days of event that the specified closing bid price for the applicable Pricing Period. Within ten (10) calendar days after Period is less than the commencement of each calendar quarter occurring subsequent to the commencement of the Open PeriodMinimum Acceptable Price, the Company undertakes to notify Investor as to its reasonable expectations as may elect, by sending written notice to the Investor to cancel the Put Amount it intends to raise during such calendar quarter, if any, through the issuance of Put Notices. Such notification shall constitute only the Company's good faith estimate with respect to such calendar quarter and shall in no way obligate the Company to raise such amount during such calendar quarter or otherwise limit its ability to deliver Put Notices during such calendar quarter. The failure by the Company to comply with this provision can be cured by the Company's notifying Investor at any time as to its reasonable expectations with respect to the current calendar quarterNotice.
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Samples: Investment Agreement Investment Agreement (Nighthawk Systems Inc)
DELIVERY OF PUT NOTICES. Subject to the terms and conditions of the Equity Line Transaction Documents, and from time to time during the Open Period Period, the Company may, in its sole discretion, deliver a Put Notice to the Investor which states the dollar amount (designated in U.S. Dollars) (the “Put Amount Amount”) of Shares which the Company intends to sell to the Investor during on a Closing Date (the Pricing Period“Put”). In addition, the The Put Amount designated by the Company in a Put Notice shall be equal to one hundred seventy-five percent (175%) of the average daily volume for the forty (40) Trading Days prior to the applicable Put Notice Date multiplied by ninety-three (93%) of the lowest closing bid price during that period, but in no event less than $25,000 nor more than $1,000,000. Once the Put Notice is received by the Investor the Put Notice shall not be terminated, withdrawn or otherwise revoked by the Company except as set forth in this Agreementexceed five hundred thousand dollars ($500,000). During the Open Period, the Company shall not be entitled to submit a Put Notice until after the previous closing Pricing Period for the prior Put has been completed. The Purchase Price Common Stock identified in the Put Notice shall be purchased for a price equal to 93% the Purchase Price. Within two (2) days of delivering a Put Notice to the Investor, the Company shall deliver to the Investor pursuant to this Agreement, certificates representing the Shares to be issued to the Investor on such date and registered in the name of the average Investor; and (II) In lieu of delivering physical certificates representing the lowest closing bid price of Securities and provided that the Company's Common Stock during the first five transfer agent then is participating in The Depository Trust Company (5“DTC”) Trading Days Fast Automated Securities Transfer (“FAST”) program, upon request of the specified Pricing Period and the lowest closing bid price of the Company's Common Stock during the second five (5) Trading Days of the specified Pricing Period. Within ten (10) calendar days after the commencement of each calendar quarter occurring subsequent to the commencement of the Open PeriodInvestor, the Company undertakes shall use all commercially reasonable efforts to notify cause its transfer agent to electronically transmit the Securities by crediting the account of the Investor's prime broker (as specified by the Investor as within a reasonable period in advance of the Investor's notice) with DTC through its Deposit Withdrawal Agent Commission (“DWAC”) system. The number of Shares to its reasonable expectations as to be delivered will be determined by dividing the Put Amount it intends specified in the Put Notice by the Suspension Price outlined in that particular Put. In the event the Shares are not sufficient to raise during such calendar quartercover the entire Put, if any, through the issuance of Put Notices. Such notification shall constitute only the Company's good faith estimate with respect to such calendar quarter and shall in no way obligate the Company shall immediately deliver more Shares pursuant to raise such amount during such calendar quarter or otherwise limit its ability to deliver Put Notices during such calendar quarter. The failure a request by the Investor. In the event there is an excess of Shares for that Put, the Company will be able to comply with this provision can be cured by deduct that particular amount of excess Shares for the Company's notifying Investor at any time as to its reasonable expectations with respect to the current calendar quartersubsequent Put.
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DELIVERY OF PUT NOTICES. Subject to the terms and conditions of ------------------------ the Transaction Documents, and from time to time during the Open Period the Company may, in its sole discretion, deliver a Put Notice to the Investor which states the Put Amount of Shares which the Company intends to sell to the Investor during the Pricing Period. In addition, the Put Amount designated by the Company in a Put Notice shall be equal to one hundred seventy-five percent (175%) of the average daily volume (U.S. market only) for the forty (40) Trading Days prior to the applicable Put Notice Date multiplied by ninety-the average of the three (93%3) of the lowest daily closing bid price during that periodprices immediately preceding the Put Date, but in no event less than $25,000 nor more than $1,000,000. Once the Put Notice is received by the Investor the Put Notice shall not be terminated, withdrawn or otherwise revoked by the Company except as set forth in this Agreement. During the Open Period, the Company shall not be entitled to submit a Put Notice until after the previous closing has been completed. The Purchase Price shall be equal to 9394% of the average of the three (3) lowest closing bid price prices of the Company's Common Stock during the first ten (10) Trading Day Pricing Period. The Company shall, in its sole discretion, be entitled to terminate the balance of the current Put Notice, if the closing bid price during the applicable Pricing Period with respect to that Put Notice is less than seventy-five percent (575%) of the Volume Weighted Average Price of the Common Stock for the fifteen (15) Trading Days of prior to the specified Pricing Period and Put Notice Date ("MINIMUM ACCEPTABLE PRICE"). In the lowest event that the closing bid price for the applicable Pricing Period is less than the Minimum Acceptable Price, the Company may elect, by sending written notice to the Investors via facsimile, to cancel that portion of the Company's Put Notice remaining for that number of Trading Days remaining after the written cancellation notice is deemed received by the Investors. The written --------------- notice shall be deemed received by the Investors on (i) the Trading Day it is --------------- received by facsimile or otherwise by the Investors if such notice is received on or prior to 12:00 noon New York time, or (ii) the immediately succeeding Trading Day if it is received by facsimile after 12:00 noon New York time on a Trading Day or at anytime on a day which is not a Trading Day. The Company shall still be responsible however, for delivering that number of shares of Common Stock during to the second five (5) Trading Days Escrow Agent that were sold by the Investors through and including the end of the specified Pricing PeriodTrading Day the written cancellation notice is deemed ------ received by the Investors. ------- Within ten (10) calendar days after the commencement of each calendar quarter occurring subsequent to the commencement of the Open Period, the Company undertakes to notify Investor as to its reasonable expectations as to the Put Amount it intends to raise during such calendar quarter, if any, through the issuance of Put Notices. Such notification shall constitute only the Company's good faith estimate with respect to such calendar quarter and shall in no way obligate the Company to raise such amount during such calendar quarter or otherwise limit its ability to deliver Put Notices during such calendar quarter. The failure by the Company to comply with this provision can be cured by the Company's notifying Investor at any time as to its reasonable expectations with respect to the current calendar quarter.
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DELIVERY OF PUT NOTICES. Subject to the terms and conditions of the Transaction Documents, and from time to time during the Open Period the Company may, in its sole discretion, deliver a Put Notice in substantially the same form as Exhibit "C" attached hereto to the Investor which states the Put Dollar Amount of Shares which the Company intends to sell to the Investor during the Pricing Purchase Period. In addition, the Put Dollar Amount designated by the Company in a Put Notice shall be equal to one hundred seventy-five percent (175%) in increments of the average daily volume for the forty (40) Trading Days prior to the applicable Put Notice Date multiplied by ninety-three (93%) of the lowest closing bid price during that period, but in no event not less than $25,000 nor 75,000 and not more than $1,000,0005,000,000 subject to a waiver of such minimum and maximum amounts in the Investor's sole discretion. Once the Put Notice is received by the Investor the Put Notice shall not be be, terminated, withdrawn or otherwise revoked by the Company except as set forth in this AgreementCompany. During the Open Period, the Company shall not be entitled to submit a Put Notice until after during the previous closing has been completedthree (3) Trading Day period following a Closing Date and a Put Notice may not be given during a Purchase Period. The Company shall not be entitled to issue a Put Notice to Investor for more than the Maximum Put Amount. The average Volume Weighted Average Price for the ten (10) Trading Days immediately preceding both the Put Notice Date and the expiration of a Purchase Period must be at least $50,000, unless the Investor in its sole discretion reduces such amount. The Purchase Price shall be equal to 9391% of the average of the lowest three (3) closing bid price prices of the Company's Common Stock during the first five Purchase Period. The Floor Price shall be stated in each Put Notice. In the event that the Shares are trading at or below the Floor Price during the Purchase Period immediately preceding the applicable Closing Date, the Investor, in its sole discretion, shall have the right to decrease the Dollar Amount set forth in that Put Notice by a pro rata percentage equal to ten percent (510%) for every day during the ten (10) Trading Days of Day Purchase Period that the specified Pricing Period and average trading price as reported by Bloomberg is at or below the lowest closing bid price of the Company's Common Stock during the second five (5) Trading Days of the specified Pricing PeriodFloor Price. Within ten (10) calendar days after the commencement of each calendar quarter occurring subsequent to the commencement of the Open Period, the Company undertakes to notify Investor as to its reasonable expectations as to the Put Dollar Amount it intends to raise during such calendar quarter, if any, through the issuance of Put Notices. Such notification shall constitute only the Company's good faith estimate with respect to such calendar quarter and shall in no way obligate the Company to raise such amount during such calendar quarter or otherwise limit its ability to deliver Put Notices during such calendar quarter. The failure by the Company to comply with this provision can be cured by the Company's notifying Investor at any time as to its reasonable expectations with respect to the current calendar quarter.
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DELIVERY OF PUT NOTICES. Subject to the terms and conditions of the Transaction Documents, and from From time to time during the Open Period the Company may, in its sole discretion, deliver a Put Notice to the Investor which states the Put Amount of Shares which the Company intends to sell to the Investor during the Pricing Period. In addition, the Put Amount designated by the Company in a Put Notice shall be equal to one two hundred seventy-five percent (175200%) of the average daily volume for the forty twenty (4020) Trading Days prior to the applicable Put Notice Date multiplied by ninety-three (93%) the average of the lowest three closing bid price during that periodprices immediately preceding the Put Notice Date, but in no event less than fifteen thousand dollars ($25,000 nor more than $1,000,00015,000). Once the Put Notice is received by the Investor the Put Notice shall not be terminated, withdrawn or otherwise revoked terminated by the Company Company, except as set forth in pursuant to this AgreementSection 2(b). During the Open Period, the Company shall not be entitled to submit a another Put Notice until after the previous closing has been completedcompleted and there is a minimum of eight (8) Trading Days between Put Notices. The Purchase Price shall be equal to 93% ninety-six percent (96%) of the average of the three (3) lowest closing bid price prices of the Company's Common Stock during the first five (5) Trading Days of the specified Pricing Period and the lowest closing bid price of the Company's Common Stock during the second five (5) Trading Days of the specified Pricing Period. Within ten (10) calendar days after The Company shall, in its sole discretion, be entitled to terminate the commencement of each calendar quarter occurring subsequent to the commencement balance of the Open Periodcurrent Put Notice, if the closing bid price during the applicable Pricing Period with respect to that Put Notice is less than seventy-five percent (75%) of the Volume Weighted Average Price for the fifteen (15) Trading Day period immediately preceding such Put Notice Date ("MINIMUM ACCEPTABLE PRICE"). In the event that the closing bid price for the applicable Pricing Period is less than the Minimum Acceptable Price, the Company undertakes to notify Investor as to its reasonable expectations as may elect, by sending written notice to the Investors via facsimile, to cancel that portion of the Put Amount Notice remaining for that number of Trading Days remaining after the written cancellation notice is deemed received by the Investor. The written cancellation notice shall be deemed received by the Investor on (i) the Trading Day it intends to raise during such calendar quarteris received by facsimile, if any, through the issuance of Put Notices. Such notification shall constitute only the Company's good faith estimate with respect to such calendar quarter and shall in no way obligate the Company to raise such amount during such calendar quarter or otherwise limit its ability on that day or the immediate next Trading Day as determined by the Investor if such notice is received on or prior to deliver Put Notices during such calendar quarter12:00 noon New York time, or (ii) the immediately succeeding Trading Day if it is received by facsimile after 12:00 noon New York time on a Trading Day or at anytime on a day which is not a Trading Day. The failure Company shall still be responsible however, for delivering that number of shares of Common Stock to the Escrow Agent that were purchased and sold by the Company to comply with this provision can be cured Investor through and including the end of the Trading Day the written cancellation notice is deemed received by the Company's notifying Investor at any time as to its reasonable expectations with respect to the current calendar quarterInvestor.
Appears in 1 contract
Samples: Investment Agreement (Ness Energy International Inc /Nv/)
DELIVERY OF PUT NOTICES. Subject to the terms and conditions satisfaction of the Transaction Documents-------------------------- conditions set forth in this Section 1, at any time and from time to time during the Open Period period beginning on and including the Trading Day (as defined below) immediately following the date on which the initial Registration Statement (as defined in the Registration Rights Agreement) filed pursuant to the Registration Rights Agreement is declared effective (the "EFFECTIVE DATE") by the Securities and Exchange Commission (the "SEC") and ending on the earlier of (i) the date which is eighteen (18) months from the Effective Date, and (ii) termination of this Agreement in accordance with Section 8 (the time period between the Effective Date and the earlier of (i) and (ii) being known as the "OPEN PERIOD"), the Company may, in its sole discretion, deliver a Put Notice written notice to the Investor which states (the "PUT NOTICE"). The Put Amount Notice shall state the dollar amount (the "DOLLAR AMOUNT") of Shares which that the Company intends to sell to the Investor during the Pricing Periodperiod beginning on the trading day immediately following the date which the Investor receives the Put Notice (the "PUT NOTICE DATE") and ending on and including the date which is ten (10) Trading Days after such Put Notice Date (the "PURCHASE PERIOD"). A Put Notice shall be deemed delivered on (x) the Trading Day it is received by facsimile or otherwise by the Investor if such notice is received prior to 12:00 noon Eastern Time (receipt being deemed to occur if the Company possess a facsimile confirmation showing completed transmission by such time), or (y) the immediately succeeding Trading Day if it is received by facsimile or otherwise after 12:00 noon Eastern Time on a Trading Day (receipt being documented as described in (x) above). No Put Notice may be deemed delivered, on a day that is not a Trading Day. For purposes of this Agreement, "TRADING DAY" shall mean any day on which the Principal Market (as defined in Section 1(f)) for the Common Stock is open for trading. In addition, the Put Dollar Amount designated by the Company in a Put Notice shall be equal to one hundred seventy-five percent (175%) in increments of the average daily volume for the forty (40) Trading Days prior to the applicable Put Notice Date multiplied by ninety-three (93%) of the lowest closing bid price during that period, but in no event not less than $25,000 nor 100,000 and not more than $1,000,0005,000,000 subject to the requirements set forth in this Agreement. Once the Put Notice is received by the Investor the Put Notice shall not be terminated, withdrawn or otherwise revoked by the Company except as set forth in this AgreementCompany. During the Open Period, the Company shall not Put Notices may be entitled to submit delivered no more frequently than once in each period of eleven (11) consecutive Trading Days, such that a Put Notice until after the previous closing has been completedmay not be given during a Purchase Period. The Purchase Price shall be equal Dollar Amount that the Company is permitted to 93% request with respect to each Put Notice depends on the product of the daily trading volume and the average of the lowest closing bid trade price of the Company's Common Stock during on the first five Principal Market (5as defined in Section 1(f)), (the "VOLUME WEIGHTED AVERAGE PRICE"). The Volume Weighted Average Price shall be as reported by Bloomberg Financial Markets ("BLOOMBERG") Trading Days through its "Volume at Price" function or if not available through Bloomberg because of delisting, then the average of the specified Pricing Period and the lowest closing bid price prices of any market makers for the Company's Common Stock during as reported in the second five "pink sheets" by the National Quotation Bureau, Inc. The maximum Dollar Amount of the Put Notice will be calculated by multiplying the average of the Volume Weighted Average Price for the thirty (530) Trading Days of immediately preceding the specified Pricing PeriodPut Notice Date, by (1.5) (the "MAXIMUM PUT AMOUNT"). Within The amount that the Company is able to draw down can be increased or decreased if mutually agreed upon by both parties in writing. For the ten (10) calendar days after Trading Days immediately preceding both the commencement of each calendar quarter occurring subsequent to Put Notice Date and the commencement of the Open Periodapplicable Closing Date, as defined in Section 1(h), the Company undertakes to notify Investor as to its reasonable expectations as to the Put Amount it intends to raise during such calendar quarter, if any, through the issuance of Put Notices. Such notification shall constitute only the Company's good faith estimate with respect to such calendar quarter and shall in no way obligate the Company to raise such amount during such calendar quarter or otherwise limit its ability to deliver Put Notices during such calendar quarterVolume Weighted Average Price must be at least $75,000. The failure by price at which the Company to comply with this provision can Investor will purchase the Common Stock ("PURCHASE PRICE") will be cured by the Company's notifying Investor at any time as to its reasonable expectations with respect to the current calendar quarter.follows:
Appears in 1 contract
