Investor Call. For any Investment Period with respect to which the Company has timely delivered a Mandatory Purchase Notice, the Investor may deliver to the Company an Investor Call Purchase Notice or Notices during such Investment Period, subject to the Company’s right to limit or cancel the Investor Call Amount pursuant to Section 2.3(a)(ii) and Section 2.3(a)(iii). Upon delivery of such an Investor Call Purchase Notice, the Company shall be obligated to sell shares of Common Stock to the Investor (in addition to the Minimum Obligation and the Additional Amount, if any) during the corresponding Investment Period for an aggregate Purchase Price to be specified by the Investor in the Investor Call Purchase Notice, but not to exceed an aggregate of $1,500,000 if the applicable Investment Period is at least fifteen (15) days, $3,000,000 if the applicable Investment Period is at least thirty (30) days, $6,000,000 if the applicable Investment Period is at least sixty (60) days or $9,000,000 if the applicable Investment Period is ninety (90) days, in each case (which individual purchases shall be at least $50,000 and multiples of $50,000 in excess thereof), subject to adjustments and limitations imposed by this Agreement (the “Investor Call Amount”). Upon delivery of such Investor Call Purchase Notice, the Investor shall be obligated to purchase on each Closing Date in respect of each such Call Purchase Date or Call Purchase Dates as the Investor elects during the Investment Period to which such Investor Call Purchase Notice relates, shares of Common Stock for an aggregate Purchase Price equal to the Investor Call Amount.”
4. Amendment to Section 2.3(d). The parties hereby add the following new Section 2.3(d)(iii) to the Agreement:
Investor Call. CapGen will issue the Investor Call to its investors promptly after receipt of the last approval of the Regulatory Authorities needed for Closing of the Private Placement, or at such other later date and time as may agreed upon by CapGen and the Company.
Investor Call. Notwithstanding the Cool Down Period, the Investor may, at its option, instruct the Corporation (Investor Call Notice) to drawdown up to eleven (11) Tranches (an Investor Call) subject to reduction as described below, in which case, the Corporation would be obliged to issue the Debentures subject to the Investor Call and the accompanying Warrants within three (3) trading days of receiving the Investor Call Notice. The Investor may only request one Investor Call at any given time. Ten (10) of such Investor Calls available will be reduced by the number of Corporation draws the Corporation makes. For example, if the Corporation instigates three (3) draws, there will remain seven (7) of the ten (10) Investor Calls.
Investor Call. 2.3.1. The Investor shall have the right to request the issuance of up to nine (9) Subsequent Tranches (the “Investor Call”), at any time (and at the discretion of the Investor, at the same time or separately), by submitting a written notice in accordance with Clause 11.1 (an “Investor Call Notice”) to the Issuer in the form attached hereto as Schedule 4. Notwithstanding anything to the contrary in this Agreement, the Investor shall also have the right to exercise its Investor Call in accordance with this Clause 2.3.1 even if (i) no Tranches have been drawn down by the Issuer and (ii) a Cool Down Period is ongoing.
2.3.2. Upon exercise of the Investor Call, the Issuer shall send a Drawdown Notice within one (1) Trading Day.
Investor Call. Notwithstanding the Cool Down Period, the Investor may, at its option, instruct the Corporation (Investor Call Notice) to drawdown:
(i) up to a maximum of two (2) Tranches, which right may be exercised one time only; and
(ii) at any time that the price of a Common Share at closing of any trading day exceeds 125% of the price of the Common Shares as of the date of this Agreement (subject to appropriate adjustment for share splits, consolidation, reclassification, etc.), up to a maximum of two (2) Tranches; (each, an Investor Call), in which case, the Corporation would be obliged to issue the Debentures subject to the Investor Call and the accompanying Warrants within two (2) trading days of receiving the Investor Call Notice. Only one Investor Call may be made by the Investor in any five (5) day period.
Investor Call. Subject to Section 2.3, the Investor may accelerate any one Automatic Issuance Date by providing written notice (the Investor Call Notice) to the Corporation at least five (5) business days prior to the applicable Automatic Issuance Date.
Investor Call. During the Commitment Period, the Investor may, at its option, instruct the Corporation (the “Investor Call Notice”) to drawdown up to a maximum of ten (10) Tranches (each, an “Investor Call”), in which case, the Corporation would be obligated to issue the Debentures subject to the Investor Call within one (1) Business Day of receiving the Investor Call Notice. For the avoidance of doubt, the Investor may at its sole discretion exercise its Investor Calls together at the same time or separately. In addition, if, from time to time, there is any Make-Whole Amount owing to the Investor, the Investor shall be entitled to provide such number of additional Investor Call Notices to require the Corporation to drawdown such number of additional Tranches as are required to effect the repayment of the Make-Whole Amount.
Investor Call. CapGen will issue the Investor Call to its investors five days after receipt of the last approval of the Regulatory Authorities and the satisfaction (or waiver) of all other conditions under this Agreement needed for Closing of the Transaction.”
Section 1.17 Section 6.15(a) of the Stock Purchase Agreement is amended to read in its entirety as follows:
(a) The Company and CapGen shall consult with each other before issuing any press release with respect to the Transaction or this Agreement and shall not issue any such press release or make any such public statements without the prior consent of the other, which consent shall not be unreasonably withheld or delayed; provided, however, that the Company may, without the prior consent of CapGen (but after such consultation, to the extent practicable in the circumstances), issue such press release or make such public statements or filings as may be required by Applicable Law or required by Section 6.15 (b) or (c) below.”
Section 1.18 Section 6.17 is amended to read in its entirety as follows:
Investor Call. In the event that a Margin Call Event shall have occurred and be continuing during the Commitment Period, the Investor may deliver an Investor Call Notice to the Company in accordance with Section 2.3(b) hereof. Upon delivery of such Investor Call Notice, the Company shall be obligated to sell shares of Common Stock to the Investor on the Closing Date specified therein for the Investment Amount specified therein (the "Investor Call Amount"). The Investor Call Amount shall be that amount which, when applied as a reduction in the Loan Amount, shall be sufficient to cure any Margin Call Event occurring under the Credit Agreement. The Investor Call Amount shall be calculated by the Investor and acknowledged by the Company, provided, however, that, the calculation by the Investor shall be deemed correct absent manifest error.
Investor Call. For any Investment Period with respect to which the Company has timely delivered a Company Put Notice, the Investor may deliver to the Company one or more Investor Call Notices in accordance with Section 2.3(b) hereof at any time prior to the twentieth calendar day following the commencement of such Investment Period. Upon delivery of such an Investor Call Notice, the Company shall be obligated to sell shares of Common Stock to the Investor (in addition to the Company Put Amount) during the corresponding Investment Period for an aggregate Purchase Price specified by Investor in such Investor Call Notice, but in no event less (when aggregated with the purchase prices of all other purchases of Common Stock made pursuant to Investor Call Notices with respect to such Investment Period) than $1,000,000 or greater (when aggregated with the purchase prices of all other purchases of Common Stock made pursuant to Investor Call Notices with respect to such Investment Period) than the Company Put Amount, subject to the adjustments and limitations imposed by this Agreement (the "Investor Call Amount"). Upon delivery of such Investor Call Notice, the Investor shall be obligated to purchase on each Closing Date in respect of each such Investor Call Purchase Date or Investor Call Purchase Dates as the Investor elects during the Investment Period to which such Investor Call Notice relates, shares of Common Stock for an aggregate Purchase Price equal to the Investor Call Amount.
