Draw Down Terms. Subject to the satisfaction of the conditions set forth in this Agreement, the parties agree as follows: (a) The Company, may, in its sole discretion, issue a Draw Down Notice at any time after February 20, 2001 with respect to a Draw Down during each Draw Down Pricing Period of up to (i) $2,000,000 if the Threshold Price is equal to or greater than $10.00 and less than $14.00, (ii) $3,000,000 if the Threshold Price is equal to or greater than $14.00 and less than $18.00, (iii) $3,500,000 if the Threshold Price is equal to or greater than $18.00 and less than $22.00, (iv) $4,000,000 if the Threshold Price is equal to or greater than $22.00 and less than $26.00, (v) $5,000,000 if the Threshold Price is equal to or greater than $26.00 and less than $30.00, and (vi) $6,000,000 if the Threshold Price is equal to or greater than $30.00; provided, HOWEVER, that the Company may, in its sole discretion, issue a Draw Down Notice with respect to any Draw Down Amount at any Threshold Price or any Draw Down Discount Percentage pursuant to terms mutually agreed upon by the Purchaser and the Company, which Draw Down the Purchaser will be obligated to accept. Prior to issuing any Draw Down Notice, the Company shall have sufficient Shares registered under the Registration Statement to cover any applicable Draw Down and Call Option. (b) The number of Shares to be issued in connection with each Draw Down shall be equal to the sum of the quotients (for each Trading Day of the Draw Down Pricing Period for which the VWAP equals or exceeds the Threshold Price) of (x) 1/18th (or such other fraction the denominator of which equals the number of Trading Days during the Draw Down Pricing Period) of the Draw Down Amount divided by (y) the applicable Draw Down Discount Percentage multiplied by the VWAP of the Common Stock for such Trading Day. (c) Only one Draw Down shall be allowed in each Draw Down Pricing Period. (d) The number of Shares purchased by the Purchaser with respect to each Draw Down shall be determined on a daily basis during each Draw Down Pricing Period and settled on the second Trading Day following the end of each Draw Down Pricing Period (the "SETTLEMENT DATE"). (e) There shall be a minimum of five (5) Trading Days between Draw Downs, unless otherwise mutually agreed upon between the Purchaser and the Company. (f) There shall be a maximum of twenty-four
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Igen International Inc /De)
Draw Down Terms. Subject to the satisfaction of the conditions set forth in this Agreement, the parties agree as follows:
(a) The Company, may, in its sole discretion, issue a Draw Down Notice at any time after February 20, 2001 with respect to a Draw Down during each Draw Down Pricing Period of up to (i) $2,000,000 500,000 if the Threshold Price is equal to or greater than $10.00 and 8.00 but less than $14.00, 10.00; (ii) $3,000,000 650,000 if the Threshold Price is equal to or greater than $14.00 10.00 and less than $18.00, (iii) up to an additional $3,500,000 if 50,000 for every $1.00 increase in the Threshold Price is equal above $10.00, up to or greater than $18.00 and less than $22.00, (iv) $4,000,000 if the a maximum Threshold Price is equal of $28.00, for a maximum Draw Down Amount during each Draw Down Pricing Period of up to or greater than $22.00 and less than $26.00, (v) $5,000,000 if the Threshold Price is equal to or greater than $26.00 and less than $30.00, and (vi) $6,000,000 if the Threshold Price is equal to or greater than $30.001,550,000; provided, HOWEVERPROVIDED, that the Company may, in its sole discretion, issue a Draw Down Notice with respect to any Draw Down Amount at any Threshold Price or any Draw Down Discount Percentage pursuant to terms mutually agreed upon by the Purchaser and the Company, which Draw Down the Purchaser will be obligated to accept. Prior to issuing any Draw Down Notice, the Company shall have sufficient Shares registered under the Registration Statement which are valued at an amount equal to cover any applicable or in excess of the Draw Down and Call OptionAmount.
(b) The number of Shares to be issued in connection with each Draw Down shall be equal to the sum of the quotients (for each Trading Day of the Draw Down Pricing Period for which the VWAP equals or exceeds the Threshold Price) of (x) 1/18th 1/20th (or such other fraction based on the denominator length of which equals the number of Trading Days during the Draw Down Pricing Period) of the Draw Down Amount divided by (y) the applicable Draw Down Discount Percentage multiplied by the VWAP of the Common Stock for such Trading Day.
(c) Only one Draw Down shall be allowed in each Draw Down Pricing Period. Each Draw Down Pricing Period shall consist of two (2) periods of ten (10) consecutive Trading Days (each, a "SETTLEMENT PERIOD").
(d) The number of Shares purchased by the Purchaser with respect to each Draw Down shall be determined on a daily basis during each Draw Down Pricing Period and settled on the second Trading Day business day following the end of each Draw Down Pricing Settlement Period (the "SETTLEMENT DATE").
(e) There shall be a minimum of five (5) Trading Days between Draw Downs, unless otherwise mutually agreed upon between the Purchaser and the Company.
(f) There shall be a maximum of twenty-fourfour (24) monthly Draw Downs during the term of this Agreement.
(g) Each Draw Down will expire on the end of the last Trading Day of each Draw Down Pricing Period.
(h) If the VWAP on a given Trading Day is less than the Threshold Price, then the total amount of the Draw Down for the relevant Draw Down Pricing Period will be reduced by 1/20th (or such other fraction based on the length of the Draw Down Pricing Period). Notwithstanding anything in the foregoing to the contrary, for each Trading Day during the Draw Down Pricing Period that the VWAP is less than the Threshold Price, the Purchaser may elect in its sole discretion to purchase Shares at a price equal to the Threshold Price multiplied by the Draw Down Discount Percentage at the end of such Draw Down Pricing Period. At no time shall the Threshold Price be set below $8.00, unless mutually agreed upon by the Company and the Purchaser. If trading in the Company's Common Stock is suspended for any reason for more than three (3) hours in any Trading Day, at the Purchaser's option, the price of the Common Stock shall be deemed to be below the Threshold Price for that Trading Day and the Draw Down for the relevant Draw Down Pricing Period shall be reduced by 1/20th (or such other fraction based on the length of the Draw Down Pricing Period). The Purchaser will inform the Company via facsimile transmission no later than 8:00 p.m. (eastern time) on the last Trading Day of such Draw Down Pricing Period as to the number of Shares, if any, the Purchaser chooses to purchase under such circumstances set forth in this Section 6.1(h).
(i) The Company must inform the Purchaser via facsimile transmission as to the Draw Down Amount the Company wishes to exercise before commencement of trading on the first Trading Day of the Draw Down Pricing Period (the "DRAW DOWN NOTICE"), substantially in the form attached hereto as Exhibit D. In addition to the Draw Down Amount, the Company shall set the Threshold Price with each Draw Down Notice and shall designate the first Trading Day of the Draw Down Pricing Period. Notwithstanding anything in the foregoing to the contrary, if the Company wishes the date of the Draw Down Notice to be the first day of the Draw Down Pricing Period, the Draw Down Notice must be delivered to the Purchaser and receipt of such Draw Down Notice confirmed by the Purchaser prior to the commencement of trading on the date of such Draw Down Notice.
(j) On each Settlement Date, the Company shall deliver the Shares purchased by the Purchaser to the Purchaser or to The Depositary Trust Company ("DTC") on the Purchaser's behalf via the Deposit Withdrawal Agent Commission system ("DWAC"), and upon receipt of the Shares, the Purchaser shall cause payment therefor to be made to the account designated by the Company by wire transfer of immediately available funds provided that the Shares are received no later than 1:00 p.m., eastern time, or next day available funds if the Shares are received thereafter.
(k) If during any Draw Down Pricing Period the Company shall enter into an Other Financing (other than shares of Common Stock issued under this Agreement or in connection with a Permitted Transaction), the Purchaser may in its sole discretion (i) purchase the Draw Down Amount of shares of Common Stock and/or exercise Call Options granted during such Draw Down Pricing Period on the terms at which the Company issued shares of Common Stock in the Other Financing during such Draw Down Pricing Period, (ii) purchase the Draw Down Amount of shares of Common Stock and/or exercise Call Options granted during such Draw Down Pricing Period at the applicable Draw Down Discount Percentage times the VWAP for such Draw Down Pricing Period, or (iii) elect not to purchase any Shares during such Draw Down Pricing Period. The Purchaser shall notify the Company of its election on the business day preceding the Settlement Date.
(l) If on the Settlement Date, the Company fails to deliver the Shares to be purchased by the Purchaser, and such failure continues for ten (10) Trading Days, the Company shall pay, in cash or restricted shares of Common Stock, at the option of the Purchaser, as liquidated damages and not as a penalty to the Purchaser an amount equal to two percent (2%) of the Draw Down Amount for the initial thirty (30) days and each additional thirty (30) day period thereafter until such failure has been cured, which shall be pro rated for such periods less than thirty (30) days (the "PERIODIC AMOUNT"). Cash payments to be made pursuant to this clause (1) shall be due and payable immediately upon demand in immediately available cash funds. Certificates evidencing the restricted shares of Common Stock shall be delivered immediately upon demand. The parties agree that the Periodic Amount represents a reasonable estimate on the part of the parties, as of the date of this Agreement, of the amount of damages that may be incurred by the Purchaser if the Company fails to deliver the Shares on the Settlement Date. If the Purchaser elects to receive shares of Common Stock instead of cash, the Purchaser shall have the right to demand registration once within twelve (12) months of the date of issuance of such shares of Common Stock and piggyback registration rights if the Company files a separate registration statement.
Appears in 1 contract
Draw Down Terms. Subject to the satisfaction of the conditions set forth in this AgreementAgreement and subject to Section 6.3 below, the parties agree as follows:
(a) The Company, may, in its sole discretion, issue a Draw Down Notice at any time after February 20, 2001 with respect to a Draw Down during each Draw Down Pricing Period of up to (i) $2,000,000 10,000,000 if the Threshold Price is equal to or greater than $10.00 30.00 and less than $14.0033.00, and (ii) an additional $3,000,000 1,000,000 for every $3.00 increase in the Threshold Price above $30.00 up to $75.00; provided, that if the Threshold Price is equal to or greater than $14.00 and less than 75.00, then the Draw Down Amount shall be $18.0025,000,000; provided, (iii) however, that for every $3,500,000 if 3.00 decrease in the Threshold Price is equal below $30.00 to or greater than $18.00 and less than 15.00, the Draw Down Amount shall be decreased by $22.001,000,000, (iv) $4,000,000 if the Threshold Price is equal to or greater than $22.00 and less than $26.00, (v) $5,000,000 if the Threshold Price is equal to or greater than $26.00 and less than $30.00, and (vi) $6,000,000 if the Threshold Price is equal to or greater than $30.00incrementally; provided, HOWEVERfurther, that the Company may, in its sole discretion, issue a Draw Down Notice with respect to any Draw Down Amount at any Threshold Price or any Draw Down Discount Percentage pursuant to terms mutually agreed upon by the Purchaser and the Company, which Draw Down the Purchaser will be obligated to accept. Prior to issuing any Draw Down Notice, the Company shall have sufficient Shares registered under the Registration Statement which are valued in a dollar amount equal to cover any applicable or in excess of the Draw Down and Call OptionAmount.
(b) The number of Shares to be issued in connection with each Draw Down shall be equal to the sum of the quotients (for each Trading Day of the Draw Down Pricing Period for which the VWAP equals or exceeds the Threshold Price) of (x) 1/18th (or such other fraction the denominator of which equals the number of Trading Days during the Draw Down Pricing Period) of the Draw Down Amount divided by (y) the applicable Draw Down Discount Percentage (or such other percentage mutually agreed upon by the parties) multiplied by the VWAP of the Common Stock for such Trading Day.
(c) Only one Draw Down shall be allowed in each Draw Down Pricing Period.
(d) The number of Shares purchased by the Purchaser with respect to each Draw Down shall be determined on a daily basis during each Draw Down Pricing Period and settled on the second Trading Day following the end of each Draw Down Pricing Period (the "SETTLEMENT DATESettlement Date").
(e) There shall be a minimum of five (5) Trading Days between Draw Downs, unless otherwise mutually agreed upon between the Purchaser and the Company.
(f) There shall be a maximum of twenty-fourfour (24) monthly Draw Downs during the term of this Agreement.
(g) Each Draw Down will expire on the end of the last Trading Day of each Draw Down Pricing Period.
(h) If the VWAP on a given Trading Day in a Draw Down Pricing Period is less than the Threshold Price, then the total amount of the Draw Down for the relevant Draw Down Pricing Period will be reduced by 1/18th (or such other fraction the denominator of which equals the number of Trading Days during the Draw Down Pricing Period). At no time shall the Threshold Price be set below $15.00, unless mutually agreed upon by the Company and the Purchaser. If trading in the Common Stock is suspended for any reason for more than three (3) hours in any Trading Day, at the Purchaser's option, the price of the Common Stock shall be deemed to be below the Threshold Price for that Trading Day and the Draw Down for the relevant Draw Down Pricing Period shall be reduced by 1/18th (or such other fraction the denominator of which equals the number of Trading Days during the Draw Down Pricing Period). Notwithstanding anything in the foregoing to the contrary, for each Trading Day during the Draw Down Pricing Period that the VWAP is less than the Threshold Price or is deemed to be below the Threshold Price pursuant to the immediately preceding sentence, the Purchaser may elect in its sole discretion to purchase Shares at a price equal to the Threshold Price multiplied by the Draw Down Discount Percentage at the end of such Draw Down Pricing Period. The Purchaser will inform the Company via facsimile transmission no later than 8:00 p.m. (eastern time) on the last Trading Day of such Draw Down Pricing Period as to the number of Shares, if any, the Purchaser chooses to purchase under such circumstances set forth in this Section 6.1(h).
(i) The Company must inform the Purchaser via facsimile transmission before 9:30 a.m. (eastern time) on the first Trading Day of the Draw Down Pricing Period in substantially in the form attached hereto as Exhibit D (the "Draw Down Notice") of the Draw Down Amount the Company wishes to exercise. In addition to the Draw Down Amount, the Company shall set the Threshold Price with each Draw Down Notice and shall designate the first Trading Day of the Draw Down Pricing Period. Notwithstanding anything in the foregoing to the contrary, if the Company wishes the Draw Down Exercise Date to be the first day of the Draw Down Pricing Period, the Draw Down Notice must be delivered to the Purchaser and receipt of such Draw Down Notice confirmed by the Purchaser prior to 9:30 a.m. (eastern time) on the date of such Draw Down Exercise Date.
(j) On each Settlement Date, the Company shall deliver the Shares purchased by the Purchaser to the Purchaser or to The Depositary Trust Company ("DTC") on the Purchaser's behalf via the Deposit Withdrawal Agent Commission system ("DWAC"), and upon receipt of the Shares, the Purchaser shall cause payment therefor to be made to the account designated by the Company by wire transfer of immediately available funds provided that the Shares are received no later than 1:00 p.m., eastern time, or next day available funds if the Shares are received thereafter.
(k) If during any Draw Down Pricing Period the Company shall enter into an Other Financing (other than shares of Common Stock issued under this Agreement or pursuant to a Permitted Transaction), the Purchaser may in its sole discretion (i) purchase the Draw Down Amount of shares of Common Stock and/or exercise Call Options granted during such Draw Down Pricing Period on the terms at which the Company issued shares of Common Stock in the Other Financing during such Draw Down Pricing Period, net of any third party's discount and fees, (ii) purchase the Draw Down Amount of shares of Common Stock and/or exercise Call Options granted during such Draw Down Pricing Period at the applicable Draw Down Discount Percentage times the VWAP for such Draw Down Pricing Period, or (iii) elect not to purchase any Shares during such Draw Down Pricing Period. The Purchaser shall notify the Company of its election on the Trading Day preceding the Settlement Date.
(l) If on the Settlement Date, the Company fails to deliver the Shares to be purchased by the Purchaser, and such failure continues for ten (10) Trading Days, the Company shall pay, in cash, as liquidated damages and not as a penalty to the Purchaser an amount equal to two percent (2%) of the Draw Down Amount for the initial thirty (30) days and each additional thirty (30) day period thereafter until such failure has been cured, which shall be pro rated for such periods less than thirty (30) days (the "Periodic Amount"). Cash payments to be made pursuant to this clause (1) shall be due and payable immediately upon demand in immediately available cash funds.
(m) If during any Draw Down Pricing Period the Company reasonably believes an event may occur which would require the suspension of the Registration Statement, the Company shall notify the Purchaser before commencement of trading on any Trading Day (a "Section 6.1(m) Notice") and reduce the number of Trading Days in such Draw Down Pricing Period. The last Trading Day of such Draw Down Pricing Period shall be the Trading Day preceding the receipt of the Section 6.1(m) Notice; provided, however, that if the Company delivers the Section 6.1(m) Notice during trading hours on a Trading Day, then the last Trading Day of such Draw Down Pricing Period shall be the Trading Day on which the Section 6.1(m) Notice was received by the Purchaser. The Purchaser will purchase the Truncated Draw Down Allocation for each of the Trading Days prior to receipt of the Section 6.1(m) Notice, for an aggregate purchase price determined in accordance with clauses (b) and (i) of this Section 6.1. In addition, the Purchaser may, at its option, elect to purchase Shares in an additional dollar amount equal to the product of the Draw Down Amount Requested, first multiplied by (x) a fraction, the numerator of which equals one (1) and the denominator of which equals eighteen (18) or such other number of Trading Days in such Draw Down Pricing Period as the parties may have mutually agreed upon with respect to such Draw Down Pricing Period (eighteen or such other mutually agreed upon number being referred to herein as the "Trading Day Number"), and next multiplied by (y) that number that is equal to the Trading Day Number minus the number of Trading Days in the reduced Draw Down Pricing Period. The price per share for such additional dollar amount shall equal (i) the aggregate total of Truncated Draw Down Allocation Amounts during the reduced Draw Down Pricing Period divided by (ii) the number of Shares to be purchased during such reduced Draw Down Pricing Period. Upon receipt of the Section 6.1(m) Notice, the Purchaser may (x) elect to purchase the Common Stock at the Threshold Price for any Trading Day that the VWAP was below the Threshold Price during the reduced Draw Down Pricing Period in accordance with Section 6.1(i) hereof, (y) elect to purchase the Common Stock in the additional amount as set forth in the preceding paragraph of this Section 6.1(m), and (z) elect to exercise any unexercised Call Options (for a Call Option Amount not to exceed $1,000,000) by issuing a Call Option Notice to the Company, in each such case, no later than 10:00 a.m. (eastern time) on the first Trading Day after the end of the reduced Draw Down Pricing Period. The exercise price of the Call Option shall be based on the VWAP on the last Trading Day of the reduced Draw Down Pricing Period (in lieu of the VWAP as specified in clause (A) of Section 6.2(b) hereof) and otherwise determined in accordance with Section 6.2(b) hereof.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Leap Wireless International Inc)
Draw Down Terms. Subject to the satisfaction of the conditions set forth in this Agreement, the parties agree as follows:
(a) The Company, may, in its sole discretion, issue a Draw Down Notice at any time after February 20, 2001 with respect to a Draw Down during each Draw Down Pricing Period of up to as follows:
(i) $2,000,000 if If the Threshold Price is set equal to or greater than $10.00 and 15.00 but less than $14.0017.00, the Draw Down Amount shall be up to $3,000,000; (ii) from $3,000,000 if 15.00 to a maximum of $35.00, for every $2.00 increase in the Threshold Price is equal Price, the Draw Down Amount shall be increased by up to or greater than $14.00 500,000, incrementally, for a maximum Draw Down Amount during each Draw Down Pricing Period of up to $8,000,000; and less than $18.00, (iii) from $3,500,000 if 15.00 to $9.00, for every $2.00 decrease in the Threshold Price is equal Price, the Draw Down Amount shall be decreased by up to or greater than $18.00 and less than 500,000, incrementally, down to a minimum Draw Down Amount of $22.00, (iv) $4,000,000 if the Threshold Price is equal to or greater than $22.00 and less than $26.00, (v) $5,000,000 if the Threshold Price is equal to or greater than $26.00 and less than $30.00, and (vi) $6,000,000 if the Threshold Price is equal to or greater than $30.001,500,000; provided, HOWEVER, that the Company may, in its sole discretion, issue a Draw Down Notice with respect to any Draw Down Amount at any Threshold Price or any Draw Down Discount Percentage pursuant to terms mutually agreed upon by the Purchaser and the Company, which Draw Down the Purchaser will be obligated to accept. Prior to issuing any Draw Down Notice, the Company shall have sufficient Shares registered under the Registration Statement which are valued at an amount equal to cover any applicable or in excess of the Draw Down and Call OptionAmount.
(b) The number of Shares to be issued in connection with each Draw Down shall be equal to the sum of the quotients (for each Trading Day of the Draw Down Pricing Period for which the VWAP equals or exceeds the Threshold Price) of (x) 1/18th 1/20th (or such other fraction based on the denominator length of which equals the number of Trading Days during the Draw Down Pricing Period) of the Draw Down Amount divided by (y) the applicable Draw Down Discount Percentage multiplied by the VWAP of the Common Stock for such Trading Day.
(c) Only one Draw Down shall be allowed in each Draw Down Pricing Period.
(d) The number of Shares purchased by the Purchaser with respect to each Draw Down shall be determined on a daily basis during each Draw Down Pricing Period and settled on the second Trading Day business day following the end of each Draw Down Pricing Period (the "SETTLEMENT DATESettlement Date").
(e) There shall be a minimum of five (5) Trading Days between Draw Downs, unless otherwise mutually agreed upon between the Purchaser and the Company.
(f) There shall be a maximum of twenty-foureighteen (18) monthly Draw Downs during the term of this Agreement.
(g) Each Draw Down will expire on the end of the last Trading Day of each Draw Down Pricing Period.
(h) If the VWAP on a given Trading Day is less than the Threshold Price, then the total amount of the Draw Down for the relevant Draw Down Pricing Period will be reduced by 1/20th (or such other fraction based on the length of the Draw Down Pricing Period). At no time shall the Threshold Price be set below $9.00, unless mutually agreed upon by the Company and the Purchaser. If trading in the Company's Common Stock is suspended for any reason for more than three (3) hours in any Trading Day, at the Purchaser's option, the price of the Common Stock shall be deemed to be below the Threshold Price for that Trading Day and the Draw Down for the relevant Draw Down Pricing Period shall be reduced by 1/20th (or such other fraction based on the length of the Draw Down Pricing Period). Notwithstanding anything in the foregoing to the contrary, for each Trading Day during the Draw Down Pricing Period that the VWAP is less than the Threshold Price or is deemed to be below the Threshold Price pursuant to the immediately preceding sentence, the Purchaser may elect in its sole discretion to purchase Shares at a price equal to the Threshold Price multiplied by the Draw Down Discount Percentage at the end of such Draw Down Pricing Period. The Purchaser will inform the Company via facsimile transmission no later than 8:00 p.m. (eastern time) on the last Trading Day of such Draw Down Pricing Period as to the number of Shares, if any, the Purchaser chooses to purchase under such circumstances set forth in this Section 6.1(h).
(i) The Company must inform the Purchaser via facsimile transmission as to the Draw Down Amount the Company wishes to exercise before commencement of trading on the first Trading Day of the Draw Down Pricing Period (the "Draw Down Notice"), substantially in the form attached hereto as Exhibit C. In addition to the Draw Down Amount, the Company shall set the Threshold Price with each Draw Down Notice and shall designate the first Trading Day of the Draw Down Pricing Period. Notwithstanding anything in the foregoing to the contrary, if the Company wishes the date of the Draw Down Notice to be the first day of the Draw Down Pricing Period, the Draw Down Notice must be delivered to the Purchaser and receipt of such Draw Down Notice confirmed by the Purchaser prior to the commencement of trading on the date of such Draw Down Notice.
(j) On each Settlement Date, the Company shall deliver the Shares purchased by the Purchaser to the Purchaser or to The Depositary Trust Company ("DTC") on the Purchaser's behalf via the Deposit Withdrawal Agent Commission system ("DWAC"), and upon receipt of the Shares, the Purchaser shall cause payment therefor to be made to the account designated by the Company by wire transfer of immediately available funds provided that the Shares are received no later than 1:00 p.m., eastern time, or next day available funds if the Shares are received thereafter.
(k) If during any Draw Down Pricing Period the Company shall enter into an Other Financing (other than shares of Common Stock issued under this Agreement or pursuant to a Permitted Transaction), the Purchaser may in its sole discretion (i) purchase the Draw Down Amount of shares of Common Stock and/or exercise Call Options granted during such Draw Down Pricing Period on the terms at which the Company issued shares of Common Stock in the Other Financing during such Draw Down Pricing Period, net of any third party's discount and fees, (ii) purchase the Draw Down Amount of shares of Common Stock and/or exercise Call Options granted during such Draw Down Pricing Period at the applicable Draw Down Discount Percentage times the VWAP for such Draw Down Pricing Period, or (iii) elect not to purchase any Shares during such Draw Down Pricing Period. The Purchaser shall notify the Company of its election on the business day preceding the Settlement Date.
(l) If on the Settlement Date, the Company fails to deliver the Shares to be purchased by the Purchaser, and such failure continues for ten (10) Trading Days, the Company shall pay, in cash or restricted shares of Common Stock, at the option of the Purchaser, as liquidated damages and not as a penalty to the Purchaser an amount equal to two percent (2%) of the Draw Down Amount for the initial thirty (30) days and each additional thirty (30) day period thereafter until such failure has been cured, which shall be pro rated for such periods less than thirty (30) days (the "Periodic Amount"). Cash payments to be made pursuant to this clause (1) shall be due and payable immediately upon demand in immediately available cash funds. Certificates evidencing the restricted shares of Common Stock shall be delivered immediately upon demand. The parties agree that the Periodic Amount represents a reasonable estimate on the part of the parties, as of the date of this Agreement, of the amount of damages that may be incurred by the Purchaser if the Company fails to deliver the Shares on the Settlement Date. If the Purchaser elects to receive shares of Common Stock instead of cash, the Purchaser shall have the right to demand registration once within twelve (12) months of the date of issuance of such shares of Common Stock and piggyback registration rights if the Company files a separate registration statement.
Appears in 1 contract
Draw Down Terms. Subject to the satisfaction of the --------------- conditions set forth in this Agreement, the parties agree as follows:
(a) The Company, may, in its sole discretion, issue a Draw Down Notice at any time after February 20, 2001 with respect to a Draw Down during each Draw Down Pricing Period of up to (i) $2,000,000 500,000 if the Threshold Price is equal to or greater than $10.00 3.00 and less than $14.004.00, (ii) $3,000,000 750,000 if the Threshold Price is equal to or greater than $14.00 4.00 and less than $18.005.00, and (iii) $3,500,000 1,500,000 if the Threshold Price is equal to or greater than $18.00 5.00 and less than $22.00, 7.00 and (iv) an additional $4,000,000 500,000 for every $2.00 increase in the Threshold Price above $5.00; provided, however, that if -------- ------- the Threshold Price is equal to or greater than $22.00 and less than $26.0023.00, (v) $5,000,000 if the Threshold Price is Draw Down Amount may be equal to or greater than up to $26.00 and less than $30.00, and (vi) $6,000,000 if the Threshold Price is equal to or greater than $30.006,000,000; provided, HOWEVERfurther, that the Company may, in its sole discretion, issue a -------- ------- Draw Down Notice with respect to any Draw Down Amount at any Threshold Price or any Draw Down Discount Percentage pursuant to terms mutually agreed upon by the Purchaser and the Company, which Draw Down the Purchaser will be obligated to accept. Notwithstanding the foregoing, the Purchaser shall not be required to accept any Draw Down Notice for which the Threshold Price is less than $5.00 after the Company and the Purchaser have completed Draw Downs, at Threshold Prices less than $5.00, in an aggregate amount of $15,000,000 or greater. Prior to issuing any Draw Down Notice, the Company shall have sufficient Shares registered under the Registration Statement which are valued in a dollar amount equal to cover any applicable or in excess of the Draw Down and Call OptionAmount.
(b) The number of Shares to be issued in connection with each Draw Down shall be equal to the sum of the quotients (for each Trading Day of the Draw Down Pricing Period for which the VWAP equals or exceeds the Threshold Price) of (x) 1/18th 1/20th (or such other fraction the denominator of which equals the number of Trading Days during the Draw Down Pricing Period) of the Draw Down Amount divided by (y) the applicable Draw Down Discount Percentage multiplied by the VWAP of the Common Stock for such Trading Day.
(c) Only one Draw Down shall be allowed in each Draw Down Pricing Period.
(d) The number of Shares purchased by the Purchaser with respect to each Draw Down shall be determined on a daily basis during each Draw Down Pricing Period and settled on the second Trading Day following the end of each Draw Down Pricing Period (the "SETTLEMENT DATESettlement Date").. ---------------
(e) There shall be a minimum of five (5) Trading Days between the end of a Draw DownsDown Pricing Period and the commencement of the next Draw Down Pricing Period, unless otherwise mutually agreed upon between the Purchaser and the Company.
(f) There shall be a maximum of twenty-foureighteen (18) monthly Draw Downs during the term of this Agreement.
(g) Each Draw Down will expire on the end of the last Trading Day of each Draw Down Pricing Period.
(h) If the VWAP on a given Trading Day is less than the Threshold Price, then the total amount of the Draw Down for the relevant Draw Down Pricing Period will be reduced by 1/20th (or such other fraction the denominator of which equals the number of Trading Days during the Draw Down Pricing Period). At no time shall the Threshold Price be set below $3.00, unless mutually agreed upon by the Company and the Purchaser. If trading in the Common Stock is suspended for any reason for more than three (3) hours in any Trading Day, at the Purchaser's option, the price of the Common Stock shall be deemed to be below the Threshold Price for that Trading Day and the Draw Down for the relevant Draw Down Pricing Period shall be reduced by 1/20th (or such other fraction the denominator of which equals the number of Trading Days during the Draw Down Pricing Period). Notwithstanding anything in the foregoing to the contrary, for each Trading Day during the Draw Down Pricing Period that the VWAP is less than the Threshold Price or is deemed to be below the Threshold Price pursuant to the immediately preceding sentence, the Purchaser may elect in its sole discretion to purchase Shares at a price equal to the Threshold Price multiplied by the Draw Down Discount Percentage at the end of such Draw Down Pricing Period. The Purchaser will inform the Company via facsimile transmission no later than 8:00 p.m. (eastern time) on the last Trading Day of such Draw Down Pricing Period as to the number of Shares, if any, the Purchaser chooses to purchase under such circumstances set forth in this Section 6.1(h).
(i) The Company must inform the Purchaser via facsimile transmission before 9:30 a.m. (eastern time) on the first Trading Day of the Draw Down Pricing Period in substantially in the form attached hereto as Exhibit D (the "Draw Down Notice") of the Draw Down Amount the Company wishes to exercise. In ---------------- addition to the Draw Down Amount, the Company shall set the Threshold Price with each Draw Down Notice and shall designate the first Trading Day of the Draw Down Pricing Period. Notwithstanding anything in the foregoing to the contrary, if the Company wishes the Draw Down Exercise Date to be the first day of the Draw Down Pricing Period, the Draw Down Notice must be delivered to the Purchaser and receipt of such Draw Down Notice confirmed by the Purchaser prior to 9:30 a.m. (eastern time) on the date of such Draw Down Exercise Date.
(j) Purchaser's behalf via the Deposit Withdrawal Agent Commission system ("DWAC"), ---- and upon receipt of the Shares, the Purchaser shall cause payment therefor to be made to the account designated by the Company by wire transfer of immediately available funds provided that the Shares are received no later than 1:00 p.m., eastern time, or next day available funds if the Shares are received thereafter.
(k) If during any Draw Down Pricing Period the Company shall enter into an Other Financing (other than shares of Common Stock issued under this Agreement or pursuant to a Permitted Transaction), the Purchaser may in its sole discretion (i) purchase the Draw Down Amount of shares of Common Stock and/or exercise Call Options granted during such Draw Down Pricing Period on the terms at which the Company issued shares of Common Stock in the Other Financing during such Draw Down Pricing Period, net of any third party's discount and fees, (ii) purchase the Draw Down Amount of shares of Common Stock and/or exercise Call Options granted during such Draw Down Pricing Period at the applicable Draw Down Discount Percentage times the VWAP for such Draw Down Pricing Period, or (iii) elect not to purchase any Shares during such Draw Down Pricing Period. The Purchaser shall notify the Company of its election on the Trading Day preceding the Settlement Date.
(l) If on the Settlement Date, the Company fails to deliver the Shares to be purchased by the Purchaser, and such failure continues for ten (10) Trading Days, the Company shall pay, in cash or restricted shares of Common Stock, at the option of the Purchaser, as liquidated damages and not as a penalty to the Purchaser an amount equal to two percent (2%) of the Draw Down Amount for the initial thirty (30) days and each additional thirty (30) day period thereafter until such failure has been cured, which shall be pro rated for such periods less than thirty (30) days (the "Periodic Amount"). --------------- Cash payments to be made pursuant to this clause (1) shall be due and payable immediately upon demand in immediately available cash funds. Certificates evidencing the restricted shares of Common Stock shall be delivered immediately upon demand. The parties agree that the Periodic Amount represents a reasonable estimate on the part of the parties, as of the date of this Agreement, of the amount of damages that may be incurred by the Purchaser if the Company fails to deliver the Shares on the Settlement Date. If the Purchaser elects to receive shares of Common Stock instead of cash, the Purchaser shall have the right to demand registration once within twelve (12) months of the date of issuance of such shares of Common Stock and piggyback registration rights if the Company files a separate registration statement.
(m) If during any Draw Down Pricing Period the Company reasonably believes an event may occur which would require the suspension of the Registration Statement, the Company shall notify the Purchaser before commencement of trading on any Trading Day (a "Section 6.1(m) Notice") and --------------------- reduce the number of Trading Days in such Draw Down Pricing Period. The last Trading Day of such Draw Down Pricing Period shall be the Trading Day preceding the receipt of the Section 6.1(m) Notice; provided, however, that if the -------- ------- Company delivers the Section 6.1(m) Notice during trading hours on a Trading Day, then the last Trading Day of such Draw Down Pricing Period shall be the Trading Day on which the Section 6.1(m) Notice was received by the Purchaser. The Purchaser will purchase the Truncated Draw Down Allocation Amount for each of the Trading Days prior to receipt of the Section 6.1(m) Notice, for an aggregate purchase price determined in accordance with clauses (b) and (i) of this Section 6.1. In addition, the Purchaser may, at its option, elect to purchase Shares in an additional dollar amount equal to the product of the Draw Down Amount Requested, first multiplied by (x) a fraction, the numerator of which equals one (1) and the denominator of which equals eighteen (18) or such other number of Trading Days in such Draw Down Pricing Period as the parties may have mutually agreed upon with respect to such Draw Down Pricing Period (eighteen or such other mutually agreed upon number being referred to herein as the "Trading Day ----------- Number"), and next multiplied by (y) that number that is equal to the Trading ------ Day Number minus the number of Trading Days in the reduced Draw Down Pricing Period. The price per share for such additional dollar amount shall equal (i) the aggregate total of Truncated Draw Down Allocation Amounts during the reduced Draw Down Pricing Period divided by (ii) the number of Shares to be purchased during such reduced Draw Down Pricing Period. Upon receipt of the Section 6.1(m) Notice, the Purchaser may (x) elect to purchase the Common Stock at the Threshold Price for any Trading Day that the VWAP was below the Threshold Price during the reduced Draw Down Pricing Period in accordance with Section 6.1(i) hereof, (y) elect to purchase the Common Stock in the additional amount as set forth in the preceding paragraph of this Section 6.1(m), and (z) elect to exercise any unexercised Call Options by issuing a Call Option Notice to the Company, in each such case, no later than 10:00 a.m. (eastern time) on the first Trading Day after the end of the reduced Draw Down Pricing Period. The exercise price of the Call Option shall be based on the VWAP on the last Trading Day of the reduced Draw Down Pricing Period (in lieu of the VWAP as specified in clause (A) of Section 6.2(b) hereof) and otherwise determined in accordance with Section 6.2(b) hereof.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Nexell Therapeutics Inc)
Draw Down Terms. Subject to the satisfaction of the conditions set forth in this AgreementAgreement and subject to Section 6.3 below, the parties agree as follows:
(a) The Company, may, in its sole discretion, issue a Draw Down Notice at any time after February 20, 2001 with respect to a Draw Down during each Draw Down Pricing Period of up to (i) $2,000,000 1,500,000 if the Threshold Price is equal to or greater than $10.00 and 1.00 but less than $14.002.00, (ii) $3,000,000 2,500,000 if the Threshold Price is equal to or greater than $14.00 and 2.00 but less than $18.00, 3.00 and (iii) $3,500,000 if the Threshold Price is equal to or greater than $18.00 and less than $22.00, (iv) $4,000,000 if the Threshold Price is equal to or greater than $22.00 and less than $26.00, (v) $5,000,000 if the Threshold Price is equal to or greater than $26.00 and 3.00 but less than $30.00, 4.00 and (vi) up to an additional $6,000,000 if 2,000,000 for every $1.00 increase in the Threshold Price is equal above $3.00 for a maximum Draw Down Amount during each Draw Down Pricing Period of up to or greater than $30.0035,000,000; provided, HOWEVERhowever, that the Company may, in its sole discretion, issue a Draw Down Notice with respect to any Draw Down Amount at any Threshold Price or any Draw Down Discount Percentage pursuant to terms mutually agreed upon by the Purchaser and the Company, which Draw Down the Purchaser will be obligated to accept. Prior to issuing any Draw Down Notice, the Company shall have sufficient Shares registered under the Registration Statement which are valued in a dollar amount equal to cover any applicable or in excess of the Draw Down and Call OptionAmount.
(b) The number of Shares to be issued in connection with each Draw Down shall be equal to the sum of the quotients (for each Trading Day of the Draw Down Pricing Period for which the VWAP equals or exceeds the Threshold Price) of (x) 1/18th (or such other fraction based on the denominator length of which equals the number of Trading Days during the Draw Down Pricing Period) of the Draw Down Amount divided by (y) the applicable Draw Down Discount Percentage (or such other percentage mutually agreed upon by the parties) multiplied by the VWAP of the Common Stock for such Trading Day.
(c) Only one Draw Down shall be allowed in each Draw Down Pricing Period.
(d) The number of Shares purchased by the Purchaser with respect to each Draw Down shall be determined on a daily basis during each Draw Down Pricing Period and settled on the second Trading Day business day following the end of each Draw Down Pricing Period (the "SETTLEMENT DATESettlement Date").
(e) There shall be a minimum of five (5) Trading Days between Draw Downs, unless otherwise mutually agreed upon between the Purchaser and the Company.
(f) There shall be a maximum of twenty-fourtwenty four (24) monthly Draw Downs during the term of this Agreement.
(g) Each Draw Down will expire immediately after the last Trading Day of each Draw Down Pricing Period.
(h) If the VWAP on a given Trading Day in a Draw Down Pricing Period is less than the Threshold Price, then the total amount of the Draw Down for the relevant Draw Down Pricing Period will be reduced by 1/18th (or such other fraction based on the length of the Draw Down Pricing Period). At no time shall the Threshold Price be set below $1.00, unless mutually agreed upon by the Company and the Purchaser. If trading in the Company's Common Stock is suspended for any reason for more than three (3) hours in any Trading Day, at the Purchaser's option, the price of the Common Stock shall be deemed to be below the Threshold Price for that Trading Day and the Draw Down for the relevant Draw Down Pricing Period shall be reduced by 1/18th (or such other fraction based on the length of the Draw Down Pricing Period). Notwithstanding anything in the foregoing to the contrary, for each Trading Day during the Draw Down Pricing Period that the VWAP is less than the Threshold Price or is deemed to be below the Threshold Price pursuant to the immediately preceding sentence, the Purchaser may elect in its sole discretion to purchase Shares at a price equal to the Threshold Price multiplied by the Draw Down Discount Percentage at the end of such Draw Down Pricing Period. The Purchaser will inform the Company via facsimile transmission no later than 8:00 p.m. (New York time) on the last Trading Day of such Draw Down Pricing Period as to the number of Shares, if any, the Purchaser chooses to purchase under such circumstances set forth in this Section 6.1(h).
(i) The Company must inform the Purchaser via facsimile transmission as to the Draw Down Amount the Company wishes to exercise before commencement of trading on the first Trading Day of the Draw Down Pricing Period covered by such notice (the "Draw Down Notice"), substantially in the form attached hereto as Exhibit D. In addition to the Draw Down Amount, the Company shall set the Threshold Price with each Draw Down Notice and shall designate the first Trading Day of the Draw Down Pricing Period. Notwithstanding anything in the foregoing to the contrary, if the Company wishes the date of the Draw Down Notice to be the first day of the Draw Down Pricing Period, the Draw Down Notice must be delivered to the Purchaser and receipt of such Draw Down Notice confirmed by the Purchaser prior to the commencement of trading on the date of such Draw Down Notice.
(j) On each Settlement Date, the Company shall deliver the Shares purchased by the Purchaser to the Purchaser or to The Depositary Trust Company ("DTC") on the Purchaser's behalf via the Deposit Withdrawal Agent Commission system ("DWAC"), and upon receipt of the Shares, the Purchaser shall cause payment therefor to be made to the account designated by the Company by wire transfer of immediately available funds provided that the Shares are received no later than 1:00 p.m., New York time, or next day available funds if the Shares are received thereafter.
(k) If during any Draw Down Pricing Period the Company shall enter into an Other Financing (other than shares of Common Stock issued under this Agreement or pursuant to a Permitted Transaction), the Purchaser may in its sole discretion (i) purchase the Draw Down Amount of shares of Common Stock and/or exercise Call Options granted during such Draw Down Pricing Period on the terms at which the Company issued shares of Common Stock in the Other Financing during such Draw Down Pricing Period, net of any third party's discount and fees, (ii) purchase the Draw Down Amount of shares of Common Stock and/or exercise Call Options granted during such Draw Down Pricing Period at the applicable Draw Down Discount Percentage times the VWAP for such Draw Down Pricing Period, or (iii) elect not to purchase any Shares during such Draw Down Pricing Period. The Purchaser shall notify the Company of its election on the business day preceding the Settlement Date.
(l) If on the Settlement Date, the Company fails to deliver the Shares to be purchased by the Purchaser, and such failure continues for ten (10) Trading Days, the Company shall pay, in cash, as liquidated damages and not as a penalty to the Purchaser an amount equal to two percent (2%) of the Draw Down Amount for the initial thirty (30) days and each additional thirty (30) day period thereafter until such failure has been cured, which shall be pro rated for such periods less than thirty (30) days (the "Periodic Amount"). Cash payments to be made pursuant to this clause (1) shall be due and payable immediately upon demand in immediately available cash funds.
(m) If during any Draw Down Pricing Period the Company reasonably believes an event may occur which would require the suspension of the Registration Statement, the Company shall notify the Purchaser before commencement of trading on any Trading Day (a "Section 6.1(m) Notice") and reduce the number of Trading Days in such Draw Down Pricing Period. The last Trading Day of such Draw Down Pricing Period shall be the Trading Day preceding the receipt of the Section 6.1(m) Notice; provided, however, that if the Company delivers the Section 6.1(m) Notice during trading hours on a Trading Day, then the last Trading Day of such Draw Down Pricing Period shall be the Trading Day on which the Section 6.1(m) Notice was received by the Purchaser. The Purchaser will purchase the Truncated Draw Down Allocation for each of the Trading Days prior to receipt of the Section 6.1(m) Notice, for an aggregate purchase price determined in accordance with clauses (b) and (i) of this Section 6.1. In addition, the Purchaser may, at its option, elect to purchase Shares in an additional dollar amount equal to the product of the Draw Down Amount Requested, first multiplied by (x) a fraction, the numerator of which equals one (1) and the denominator of which equals eighteen (18) or such other number of Trading Days in such Draw Down Pricing Period as the parties may have mutually agreed upon with respect to such Draw Down Pricing Period (eighteen or such other mutually agreed upon number being referred to herein as the "Trading Day Number"), and next multiplied by (y) that number that is equal to the Trading Day Number minus the number of Trading Days in the reduced Draw Down Pricing Period. The price per share for such additional dollar amount shall equal (i) the aggregate total of Truncated Draw Down Allocation Amounts during the reduced Draw Down Pricing Period divided by (ii) the number of Shares to be purchased during such reduced Draw Down Pricing Period. Upon receipt of the Section 6.1(m) Notice, the Purchaser may (x) elect to purchase the Common Stock at the Threshold Price for any Trading Day that the VWAP was below the Threshold Price during the reduced Draw Down Pricing Period in accordance with Section 6.1(i) hereof, (y) elect to purchase the Common Stock in the additional amount as set forth in the preceding paragraph of this Section 6.1(m), and (z) elect to exercise any unexercised Call Options (for a Call Option Amount not to exceed $1,000,000) by issuing a Call Option Notice to the Company, in each such case, no later than 10:00 a.m. (New York time) on the first Trading Day after the end of the reduced Draw Down Pricing Period. The exercise price of the Call Option shall be based on the VWAP on the last Trading Day of the reduced Draw Down Pricing Period (in lieu of the VWAP as specified in clause (A) of Section 6.2(b) hereof) and otherwise determined in accordance with Section 6.2(b) hereof.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Usinternetworking Inc)
Draw Down Terms. Subject to the satisfaction of the --------------- conditions set forth in this Agreement, the parties agree as follows:
(a) The Company, may, in its sole discretion, issue a Draw Down Notice at any time after February 20, 2001 with respect to a Draw Down during each Draw Down Pricing Period of up to (i) $2,000,000 10,000,000 if the Threshold Price is equal to or greater than $10.00 30.00 and less than $14.0033.00, and (ii) an additional $3,000,000 1,000,000 for every $3.00 increase in the Threshold Price above $30.00 up to $75.00; provided, that if the Threshold Price is -------- equal to or greater than $14.00 and less than 75.00, then the Draw Down Amount shall be $18.0025,000,000; provided, (iii) however, that for every $3,500,000 if 3.00 decrease in the Threshold Price is equal below -------- ------- $30.00 to or greater than $18.00 and less than 15.00, the Draw Down Amount shall be decreased by $22.001,000,000, (iv) $4,000,000 if the Threshold Price is equal to or greater than $22.00 and less than $26.00, (v) $5,000,000 if the Threshold Price is equal to or greater than $26.00 and less than $30.00, and (vi) $6,000,000 if the Threshold Price is equal to or greater than $30.00incrementally; provided, HOWEVERfurther, that the Company may, in its sole discretion, -------- ------- issue a Draw Down Notice with respect to any Draw Down Amount at any Threshold Price or any Draw Down Discount Percentage pursuant to terms mutually agreed upon by the Purchaser and the Company, which Draw Down the Purchaser will be obligated to accept. Prior to issuing any Draw Down Notice, the Company shall have sufficient Shares registered under the Registration Statement which are valued in a dollar amount equal to cover any applicable or in excess of the Draw Down and Call OptionAmount.
(b) The number of Shares to be issued in connection with each Draw Down shall be equal to the sum of the quotients (for each Trading Day of the Draw Down Pricing Period for which the VWAP equals or exceeds the Threshold Price) of (x) 1/18th (or such other fraction the denominator of which equals the number of Trading Days during the Draw Down Pricing Period) of the Draw Down Amount divided by (y) the applicable Draw Down Discount Percentage (or such other percentage mutually agreed upon by the parties) multiplied by the VWAP of the Common Stock for such Trading Day.
(c) Only one Draw Down shall be allowed in each Draw Down Pricing Period.
(d) The number of Shares purchased by the Purchaser with respect to each Draw Down shall be determined on a daily basis during each Draw Down Pricing Period and settled on the second Trading Day following the end of each Draw Down Pricing Period (the "SETTLEMENT DATESettlement Date").. ---------------
(e) There shall be a minimum of five (5) Trading Days between Draw Downs, unless otherwise mutually agreed upon between the Purchaser and the Company.
(f) There shall be a maximum of twenty-fourfour (24) monthly Draw Downs during the term of this Agreement.
(g) Each Draw Down will expire on the end of the last Trading Day of each Draw Down Pricing Period.
(h) If the VWAP on a given Trading Day in a Draw Down Pricing Period is less than the Threshold Price, then the total amount of the Draw Down for the relevant Draw Down Pricing Period will be reduced by 1/18th (or such other fraction the denominator of which equals the number of Trading Days during the Draw Down Pricing Period). At no time shall the Threshold Price be set below $15.00, unless mutually agreed upon by the Company and the Purchaser. If trading in the Common Stock is suspended for any reason for more than three (3) hours in any Trading Day, at the Purchaser's option, the price of the Common Stock shall be deemed to be below the Threshold Price for that Trading Day and the Draw Down for the relevant Draw Down Pricing Period shall be reduced by 1/18th (or such other fraction the denominator of which equals the number of Trading Days during the Draw Down Pricing Period). Notwithstanding anything in the foregoing to the contrary, for each Trading Day during the Draw Down Pricing Period that the VWAP is less than the Threshold Price or is deemed to be below the Threshold Price pursuant to the immediately preceding sentence, the Purchaser may elect in its sole discretion to purchase Shares at a price equal to the Threshold Price multiplied by the Draw Down Discount Percentage at the end of such Draw Down Pricing Period. The Purchaser will inform the Company via facsimile transmission no later than 8:00 p.m. (eastern time) on the last Trading Day of such Draw Down Pricing Period as to the number of Shares, if any, the Purchaser chooses to purchase under such circumstances set forth in this Section 6.1(h).
(i) The Company must inform the Purchaser via facsimile transmission before 9:30 a.m. (eastern time) on the first Trading Day of the Draw Down Pricing Period in substantially in the form attached hereto as Exhibit D (the "Draw Down Notice") of the Draw Down Amount the Company wishes to exercise. In ----------------- addition to the Draw Down Amount, the Company shall set the Threshold Price with each Draw Down Notice and shall designate the first Trading Day of the Draw Down Pricing Period. Notwithstanding anything in the foregoing to the contrary, if the Company wishes the Draw Down Exercise Date to be the first day of the Draw Down Pricing Period, the Draw Down Notice must be delivered to the Purchaser and receipt of such Draw Down Notice confirmed by the Purchaser prior to 9:30 a.m. (eastern time) on the date of such Draw Down Exercise Date.
(j) On each Settlement Date, the Company shall deliver the Shares purchased by the Purchaser to the Purchaser or to The Depositary Trust Company ("DTC") on the Purchaser's behalf via the Deposit Withdrawal Agent Commission --- system ("DWAC"), and upon ---- receipt of the Shares, the Purchaser shall cause payment therefor to be made to the account designated by the Company by wire transfer of immediately available funds provided that the Shares are received no later than 1:00 p.m., eastern time, or next day available funds if the Shares are received thereafter.
(k) If during any Draw Down Pricing Period the Company shall enter into an Other Financing (other than shares of Common Stock issued under this Agreement or pursuant to a Permitted Transaction), the Purchaser may in its sole discretion (i) purchase the Draw Down Amount of shares of Common Stock and/or exercise Call Options granted during such Draw Down Pricing Period on the terms at which the Company issued shares of Common Stock in the Other Financing during such Draw Down Pricing Period, net of any third party's discount and fees, (ii) purchase the Draw Down Amount of shares of Common Stock and/or exercise Call Options granted during such Draw Down Pricing Period at the applicable Draw Down Discount Percentage times the VWAP for such Draw Down Pricing Period, or (iii) elect not to purchase any Shares during such Draw Down Pricing Period. The Purchaser shall notify the Company of its election on the Trading Day preceding the Settlement Date.
(l) If on the Settlement Date, the Company fails to deliver the Shares to be purchased by the Purchaser, and such failure continues for ten (10) Trading Days, the Company shall pay, in cash, as liquidated damages and not as a penalty to the Purchaser an amount equal to two percent (2%) of the Draw Down Amount for the initial thirty (30) days and each additional thirty (30) day period thereafter until such failure has been cured, which shall be pro rated for such periods less than thirty (30) days (the "Periodic Amount"). Cash ---------------- payments to be made pursuant to this clause (1) shall be due and payable immediately upon demand in immediately available cash funds.
(m) If during any Draw Down Pricing Period the Company reasonably believes an event may occur which would require the suspension of the Registration Statement, the Company shall notify the Purchaser before commencement of trading on any Trading Day (a "Section 6.1(m) Notice") and --------------------- reduce the number of Trading Days in such Draw Down Pricing Period. The last Trading Day of such Draw Down Pricing Period shall be the Trading Day preceding the receipt of the Section 6.1(m) Notice; provided, however, that if the -------- ------- Company delivers the Section 6.1(m) Notice during trading hours on a Trading Day, then the last Trading Day of such Draw Down Pricing Period shall be the Trading Day on which the Section 6.1(m) Notice was received by the Purchaser. The Purchaser will purchase the Truncated Draw Down Allocation for each of the Trading Days prior to receipt of the Section 6.1(m) Notice, for an aggregate purchase price determined in accordance with clauses (b) and (i) of this Section 6.1. In addition, the Purchaser may, at its option, elect to purchase Shares in an additional dollar amount equal to the product of the Draw Down Amount Requested, first multiplied by (x) a fraction, the numerator of which equals one (1) and the denominator of which equals eighteen (18) or such other number of Trading Days in such Draw Down Pricing Period as the parties may have mutually agreed upon with respect to such Draw Down Pricing Period (eighteen or such other mutually agreed upon number being referred to herein as the "Trading Day ----------- Number"), and next multiplied by (y) that number that is equal to the Trading ------- Day Number minus the number of Trading Days in the reduced Draw Down Pricing Period. The price per share for such additional dollar amount shall equal (i) the aggregate total of Truncated Draw Down Allocation Amounts during the reduced Draw Down Pricing Period divided by (ii) the number of Shares to be purchased during such reduced Draw Down Pricing Period. Upon receipt of the Section 6.1(m) Notice, the Purchaser may (x) elect to purchase the Common Stock at the Threshold Price for any Trading Day that the VWAP was below the Threshold Price during the reduced Draw Down Pricing Period in accordance with Section 6.1(i) hereof, (y) elect to purchase the Common Stock in the additional amount as set forth in the preceding paragraph of this Section 6.1(m), and (z) elect to exercise any unexercised Call Options (for a Call Option Amount not to exceed $1,000,000) by issuing a Call Option Notice to the Company, in each such case, no later than 10:00 a.m. (eastern time) on the first Trading Day after the end of the reduced Draw Down Pricing Period. The exercise price of the Call Option shall be based on the VWAP on the last Trading Day of the reduced Draw Down Pricing Period (in lieu of the VWAP as specified in clause (A) of Section 6.2(b) hereof) and otherwise determined in accordance with Section 6.2(b) hereof.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Leap Wireless International Inc)
Draw Down Terms. Subject to the satisfaction of the conditions set forth in this Agreement, the parties agree as follows:
(a) The Company, may, in its sole discretion, issue a Draw Down Notice at any time after February 20, 2001 with respect to a Draw Down draw down (a "DRAW DOWN") during each Draw Down Pricing Period of up to (i) $2,000,000 2,500,000 if the Threshold Price is equal to or greater than $10.00 5.00 and less than up to and additional $14.00, (ii) 500,000 for every $3,000,000 if 1.00 increase in the Threshold Price is equal above $5.00 up to or greater than and including $14.00 and less than 20.00 for a maximum Draw Down Amount during each Draw Down Pricing Period of up to $18.0010,000,000; PROVIDED, (iii) HOWEVER, that for every $3,500,000 if 1.00 decrease in the Threshold Price is equal below $5.00, down to or greater than $18.00 and less than $22.00, (iv) $4,000,000 if the a minimum Threshold Price is equal to or greater than of $22.00 and less than 3.00, the Draw Down shall be decreased by $26.00500,000, (v) $5,000,000 if the Threshold Price is equal to or greater than $26.00 and less than $30.00incrementally; PROVIDED, and (vi) $6,000,000 if the Threshold Price is equal to or greater than $30.00; provided, HOWEVERFURTHER, that the Company may, in its sole discretion, issue a Draw Down Notice with respect to any Draw Down Amount at any Threshold Price or any Draw Down Discount Percentage pursuant to terms mutually agreed upon by the Purchaser and the Company, which Draw Down the Purchaser will be obligated to accept. Prior to issuing any Draw Down Notice, the Company shall have sufficient Shares registered under the Registration Statement which are valued at an amount equal to cover any applicable or in excess of the Draw Down and Call OptionAmount.
(b) The number of Shares to be issued in connection with each Draw Down shall be equal to the sum of the quotients (for each Trading Day trading day of the Draw Down Pricing Period for which the VWAP equals or exceeds the Threshold Price) of (x) 1/18th 1/20th (or such other fraction based on the denominator length of which equals the number of Trading Days during the Draw Down Pricing Period) of the Draw Down Amount divided by (y) the applicable Draw Down Discount Percentage multiplied by the VWAP of the Common Stock for such Trading Daytrading day.
(c) Only one Draw Down shall be allowed in each Draw Down Pricing Period. Each Draw Down Pricing Period shall consist of two (2) periods of ten (10) consecutive trading days (each, a "SETTLEMENT PERIOD").
(d) The number of Shares purchased by the Purchaser with respect to each Draw Down shall be determined on a daily basis during each Draw Down Pricing Period and settled on the second Trading Day business day following the end of each Draw Down Pricing Settlement Period (the "SETTLEMENT DATE").
(e) There shall be a minimum of five (5) Trading Days trading days between Draw Downs, unless otherwise mutually agreed upon between the Purchaser and the Company.
(f) There shall be a maximum of twenty-fourtwelve (12) monthly Draw Downs during the term of this Agreement.
(g) Each Draw Down will expire on the end of the last trading day of each Draw Down Pricing Period.
(h) If the VWAP on a given trading day is less than the Threshold Price, then the total amount of the Draw Down for the relevant Draw Down Pricing Period will be reduced by 1/20th (or such other fraction based on the length of the Draw Down Pricing Period). Notwithstanding anything in the foregoing to the contrary, for each trading day during the Draw Down Pricing Period that the VWAP is less than the Threshold Price, the Purchaser may elect in its sole discretion to purchase Shares at a price equal to the Threshold Price multiplied by the Draw Down Discount Percentage at the end of such Draw Down Pricing Period. At no time shall the Threshold Price be set below $3.00, unless mutually agreed upon by the Company and the Purchaser. If trading in the Company's Common Stock is suspended for any reason for more than three (3) hours in any trading day, at the Purchaser's option, the price of the Common Stock shall be deemed to be below the Threshold Price for that trading day and the Draw Down for the relevant Draw Down Pricing Period shall be reduced by 1/20th (or such other fraction based on the length of the Draw Down Pricing Period).
(i) The Company must inform the Purchaser via facsimile transmission as to the Draw Down Amount the Company wishes to exercise before commencement of trading on the first trading day of the Draw Down Pricing Period (the "DRAW DOWN NOTICE"), substantially in the form attached hereto as Exhibit C. In addition to the Draw Down Amount, the Company shall set the Threshold Price with each Draw Down Notice and shall designate the first trading day of the Draw Down Pricing Period.
(j) On each Settlement Date, the Company shall deliver the Shares purchased by the Purchaser to the Purchaser or to The Depositary Trust Company ("DTC") on the Purchaser's behalf via the Deposit Withdrawal Agent Commission system ("DWAC"), and upon receipt of the Shares, the Purchaser shall cause payment therefor to be made to the account designated by the Company by wire transfer of immediately available funds provided that the Shares are received no later than 1:00 p.m., eastern time, or next day available funds if the Shares are received thereafter.
(k) If during any Draw Down Pricing Period the Company shall enter into an Other Financing (other than shares of Common Stock issued under this Agreement or in connection with a Permitted Transaction), the Purchaser may in its sole discretion (i) purchase up to the Draw Down Amount of shares of Common Stock and/or exercise Call Options granted during such Draw Down Pricing Period on the terms at which the Company issued shares of Common Stock in the Other Financing during such Draw Down Pricing Period, (ii) purchase up to the Draw Down Amount of shares of Common Stock and/or exercise Call Options granted during such Draw Down Pricing Period at the applicable Draw Down Discount Percentage times the VWAP for such Draw Down Pricing Period, or (iii) elect not to purchase any Shares during such Draw Down Pricing Period. The Purchaser shall notify the Company of its election on the business day preceding the Settlement Date.
(l) If on the Settlement Date, the Company fails to deliver the Shares to be purchased by the Purchaser, and such failure continues for ten (10) trading days, the Company shall pay, in cash or restricted shares of Common Stock, at the option of the Purchaser, as liquidated damages and not as a penalty to the Purchaser an amount equal to two percent (2%) of the Draw Down Amount for the initial thirty (30) days and each additional thirty (30) day period thereafter until such failure has been cured, which shall be pro rated for such periods less than thirty (30) days (the "PERIODIC AMOUNT"). Cash payments to be made pursuant to this clause (1) shall be due and payable immediately upon demand in immediately available cash funds. Certificates evidencing the restricted shares of Common Stock shall be delivered immediately upon demand. The parties agree that the Periodic Amount represents a reasonable estimate on the part of the parties, as of the date of this Agreement, of the amount of damages that may be incurred by the Purchaser if the Company fails to deliver the Shares on the Settlement Date. If the Purchaser elects to receive shares of Common Stock instead of cash, the Purchaser shall have the right to demand registration once within twelve (12) months of the date of issuance of such shares of Common Stock and piggyback registration rights if the Company files a separate registration statement.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Matritech Inc/De/)
Draw Down Terms. Subject to the satisfaction of the conditions set forth in this Agreement, the parties agree as follows:
(a) The Company, may, in its sole discretion, issue a Draw Down Notice at any time after February 20, 2001 with respect to a draw down (a "Draw Down Down") during each Draw Down Pricing Period of up to (i) $2,000,000 if the Threshold Price is equal to or greater than $10.00 and less than $14.00, (ii) $3,000,000 if the Threshold Price is equal to or greater than $14.00 and less than $18.00, (iii) $3,500,000 if the Threshold Price is equal to or greater than $18.00 and less than $22.00, (iv) $4,000,000 if the Threshold Price is equal to or greater than $22.00 and 6.00 but less than $26.00, 8.00; (v) $5,000,000 if the Threshold Price is equal to or greater than $26.00 and less than $30.00, and (viii) $6,000,000 if the Threshold Price is equal to or greater than $30.008.00 but less than $11.00; (iii) $8,000,000 if the Threshold Price is equal to or greater than $11.00 but less than $14.00; or (iv) $10,000,000 if the Threshold Price is equal to or greater than $14.00; provided, HOWEVER, that the Company may, in its sole discretion, issue a Draw Down Notice with respect to any Draw Down Amount at any Threshold Price or any Draw Down Discount Percentage pursuant to terms mutually agreed upon by the Purchaser and the Company, which Draw Down the Purchaser will be obligated to accept. Prior to issuing any Draw Down Notice, the Company shall have sufficient Shares registered under the Registration Statement which are valued at an amount equal to cover any applicable or in excess of the Draw Down and Call OptionAmount.
(b) The number of Shares to be issued in connection with each Draw Down shall be equal to the sum of the quotients (for each Trading Day trading day of the Draw Down Pricing Period for which the VWAP equals or exceeds the Threshold Price) of (x) 1/18th 1/20th (or such other fraction based on the denominator length of which equals the number of Trading Days during the Draw Down Pricing Period) of the Draw Down Amount divided by (y) the applicable Draw Down Discount Percentage multiplied by the VWAP of the Common Stock for such Trading Daytrading day.
(c) Only one Draw Down shall be allowed in each Draw Down Pricing Period. Each Draw Down Pricing Period shall consist of two (2) periods of ten (10) consecutive trading days (each, a "Settlement Period").
(d) The number of Shares purchased by the Purchaser with respect to each Draw Down shall be determined on a daily basis during each Draw Down Pricing Period and settled on the second Trading Day business day following the end of each Draw Down Pricing Settlement Period (the "SETTLEMENT DATESettlement Date").
(e) There shall be a minimum of five (5) Trading Days trading days between Draw DownsDowns (including after consummation of the Initial Purchase), unless otherwise mutually agreed upon between the Purchaser and the Company.
(f) There shall be a maximum of twenty-fourtwelve (12) monthly Draw Downs during the term of this Agreement.
(g) Each Draw Down will expire on the last trading day of each Draw Down Pricing Period.
(h) If the VWAP on a given trading day is less than the Threshold Price, then the total amount of the Draw Down for the relevant Draw Down Pricing Period will be reduced by 1/20th (or such other fraction based on the length of the Draw Down Pricing Period). Notwithstanding anything in the foregoing to the contrary, for each trading day during the Draw Down Pricing Period that the VWAP is less than the Threshold Price, the Purchaser may elect in its sole discretion to purchase Shares at the Threshold Price at the end of such Draw Down Pricing Period and the total amount of the Draw Down shall not be reduced by 1/20th pursuant to the foregoing sentence. At no time shall the Threshold Price be set below $6.00, unless mutually
(i) The Company must inform the Purchaser via facsimile transmission as to the Draw Down Amount the Company wishes to exercise before commencement of trading on the first trading day of the Draw Down Pricing Period (the "Draw Down Notice"), substantially in the form attached hereto as Exhibit C. In addition to the Draw Down Amount, the Company shall set the Threshold Price with each Draw Down Notice and shall designate the first trading day of the Draw Down Pricing Period.
(j) On each Settlement Date, the Company shall deliver the Shares purchased by the Purchaser to the Purchaser or to The Depositary Trust Company ("DTC") on the Purchaser's behalf via the Deposit Withdrawal Agent Commission system ("DWAC"), and upon receipt of the Shares, the Purchaser shall cause payment therefor to be made to the account designated by the Company by wire transfer of immediately available funds provided that the Shares are received no later than 1:00 p.m., eastern time, or next day available funds if the Shares are received thereafter.
(k) If during any Draw Down Pricing Period, the Company shall enter into any other equity financing agreement (the "Other Financing") the primary purpose of which is to raise financing for the Company, the Purchaser may in its sole discretion (i) purchase the Draw Down Amount of shares of Common Stock and/or exercise Call Options granted during such Draw down Pricing Period at the price at which the Company issued shares of Common Stock in the Other Financing during such Draw Down Pricing Period, (ii) purchase the Draw Down Amount of shares of Common Stock and/or exercise Call Options granted during such Draw Down Pricing Period at the applicable Draw Down Discount Percentage times the VWAP for such Draw Down Pricing Period, or (iii) elect not to purchase any Shares during such Draw Down Pricing Period. The Purchaser shall notify the Company of its election on the business day preceding the Settlement Date.
(l) If on the Settlement Date, the Company fails to deliver the Shares to be purchased by the Purchaser, and such failure continues for ten (10) trading days, the Company shall pay, in cash or restricted shares of Common Stock, at the option of the Purchaser, as liquidated damages and not as a penalty to the Purchaser an amount equal to two percent (2%) of the Draw Down Amount for the initial thirty (30) days and each additional thirty (30) day period thereafter until such failure has been cured, which shall be pro rated for such periods less than thirty (30) days (the "Periodic Amount"). Cash payments to be made pursuant to this clause (l) shall be due and payable immediately upon demand in immediately available cash funds. Certificates evidencing the restricted shares of Common Stock shall be delivered immediately upon demand. The parties agree that the Periodic Amount represents a reasonable estimate on the part of the parties, as of the date of this Agreement, of the amount of damages that may be incurred by the Purchaser if the Company fails to deliver the Shares on the Settlement Date. If the Purchaser elects to receive shares of Common Stock instead of cash, the Purchaser shall have the right to demand registration once within twelve (12) months of the date of issuance of such
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Axys Pharmecueticals Inc)
