Common use of Per Share Purchase Price; Additional Share Elections Clause in Contracts

Per Share Purchase Price; Additional Share Elections. (1) The purchase price for each Share issuable under this Agreement on a Settlement Date (the "PER SHARE PURCHASE PRICE") shall equal 87.25% of the average of the VWAP's for the three Trading Days immediately preceding such Settlement Date, but in no event less than the Floor Price (as defined below). (2) The Company is not required to sell, and the Purchaser is not required to purchase, any Shares at a price that is less than the Floor Price. If the Per Share Purchase Price with respect to a particular Settlement Date is less than the Floor Price: (a) the Purchaser may, but is not required to, require the Company to issue and sell to it up to the maximum aggregate amount of Shares to be sold hereunder (it being understood that not more than an aggregate of 4,000,000 Shares will be issued and sold under this Agreement), and (b) if Purchaser elects to acquire such Shares under (a) above, then the per share purchase price for such Shares shall equal the Floor Price. (3) At any time prior to 6:00 p.m. (New York time) on the day preceding a Settlement Date, the Purchaser may elect by written notice to the Company, to acquire (in addition to the Shares which it may be obligated to acquire at such time) up to the maximum aggregate amount of Shares to be sold hereunder (it being understood that not more than an aggregate of 4,000,000 Shares will be issued and sold under this Agreement). (4) Notwithstanding anything herein to the contrary, if the VWAP on two consecutive Settlement Dates is less than $0.42, then, at any time thereafter, Purchaser shall be entitled to terminate any and all of its obligations under this Agreement by delivery of a written notice to the Company to such effect. (5) The Purchaser is not permitted to acquire Shares hereunder to the extent that, giving effect to such proposed acquisition, the beneficial ownership of the Common Stock by the Purchaser (together with its affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Purchaser's for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")), would exceed 9% of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock potentially issuable upon such acquisition). Notwithstanding anything herein to the contrary, the obligations of the parties hereto is subject to the immediately preceding sentence and will be deemed automatically modified so as to avoid any contravention thereof.

Per Share Purchase Price; Additional Share Elections. (1) The purchase price for each Share issuable under this Agreement on a Settlement Date (the "PER SHARE PURCHASE PRICE") shall equal 87.25% of the average of the VWAP's for the three Trading Days immediately preceding such Settlement Date, but in no event less than the Floor Price (as defined below). (2) The Company is not required to sell, and the Purchaser is not required to purchase, any Shares at a price that is less than the Floor Price. If the Per Share Purchase Price with respect to a particular Settlement Date is less than the Floor Price: (a) the Purchaser may, but is not required to, require the Company to issue and sell to it up to the maximum aggregate amount of Shares to be sold hereunder (it being understood that not more than an aggregate of 4,000,000 12,500,000 Shares will be issued and sold under this Agreement), and (b) if Purchaser elects to acquire such Shares under (a) above, then the per share purchase price for such Shares shall equal the Floor Price. (3) At any time prior to 6:00 p.m. (New York time) on the day preceding a Settlement Date, the Purchaser may elect by written notice to the Company, to acquire (in addition to the Shares which it may be obligated to acquire at such time) up to the maximum aggregate amount of Shares to be sold hereunder (it being understood that not more than an aggregate of 4,000,000 12,500,000 Shares will be issued and sold under this Agreement). (4) Notwithstanding anything herein to the contrary, if the VWAP on two consecutive Settlement Dates is less than $0.420.40, then, at any time thereafter, Purchaser shall be entitled to terminate any and all of its obligations under this Agreement by delivery of a written notice to the Company to such effect. (5) The Purchaser is not permitted to acquire Shares hereunder to the extent that, giving effect to such proposed acquisition, the beneficial ownership of the Common Stock by the Purchaser (together with its affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Purchaser's for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")), would exceed 9% of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock potentially issuable upon such acquisition). Notwithstanding anything herein to the contrary, the obligations of the parties hereto is subject to the immediately preceding sentence and will be deemed automatically modified so as to avoid any contravention thereof.

Per Share Purchase Price; Additional Share Elections. (1) The purchase price for each Share issuable under this Agreement on a Settlement Date (the "PER SHARE PURCHASE PRICE") shall equal 87.25% of the average of the VWAP's for the three Trading Days immediately preceding such Settlement Date, but in no event less than the Floor Price (as defined below). (2) The Company is not required to sell, and the Purchaser is not required to purchase, any Shares at a price that is less than the Floor Price. If the Per Share Purchase Price with respect to a particular Settlement Date is less than the Floor Price: (a) the Purchaser may, but is not required to, require the Company to issue and sell to it up to the maximum aggregate amount of Shares to be sold hereunder (it being understood that not more than an aggregate of 4,000,000 8,500,000 Shares will be issued and sold under this Agreement), and (b) if Purchaser elects to acquire such Shares under (a) above, then the per share purchase price for such Shares shall equal the Floor Price. (3) At any time prior to 6:00 p.m. (New York time) on the day preceding a Settlement Date, the Purchaser may elect by written notice to the Company, to acquire (in addition to the Shares which it may be obligated to acquire at such time) up to the maximum aggregate amount of Shares to be sold hereunder (it being understood that not more than an aggregate of 4,000,000 8,500,000 Shares will be issued and sold under this Agreement). (4) Notwithstanding anything herein to the contrary, if the VWAP on two consecutive Settlement Dates is less than $0.42, then, at any time thereafter, Purchaser shall be entitled to terminate any and all of its obligations under this Agreement by delivery of a written notice to the Company to such effect. (5) The Purchaser is not permitted to acquire Shares hereunder to the extent that, giving effect to such proposed acquisition, the beneficial ownership of the Common Stock by the Purchaser (together with its affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Purchaser's for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")), would exceed 9% of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock potentially issuable upon such acquisition). Notwithstanding anything herein to the contrary, the obligations of the parties hereto is subject to the immediately preceding sentence and will be deemed automatically modified so as to avoid any contravention thereof.

Per Share Purchase Price; Additional Share Elections. (1) The purchase price for each Share issuable under this Agreement on a Settlement Date (the "PER SHARE PURCHASE PRICE") shall equal 87.2587.00% of the average of the VWAP's VWAP for the three Trading Days immediately preceding such Settlement Date, but in no event less than the Floor Price (as defined below). (2) The Company is not required to sell, and the Purchaser is not required to purchase, any Shares at a price that is less than the Floor Price. If the Per Share Purchase Price with respect to a particular Settlement Date is less than the Floor Price: (a) the Purchaser shall be under no further obligation to purchase any Shares that would have been purchased on the applicable Settlement Date, but may, but is not required toat its option, require the Company to issue and sell to it up to the maximum aggregate amount of Shares to be sold hereunder (it being understood that not more than an aggregate of 4,000,000 571,429 Shares will be issued and sold under this Agreement), and (b) if Purchaser elects to acquire such Shares under (a) above, then the per share purchase price for such Shares shall equal the Floor Price. (3) At any time prior to 6:00 p.m. (New York time) on the day preceding a Settlement Date, the Purchaser may elect by written notice to the Company, to acquire (in addition to the Shares which it may be obligated to acquire at such time) up to the maximum aggregate amount of Shares to be sold hereunder (it being understood that not more than an aggregate of 4,000,000 571,429 Shares will be issued and sold under this Agreement). (4) Notwithstanding anything herein to the contrary, if the VWAP on two consecutive Settlement Dates is less than $0.42, then, at any time thereafter, Purchaser shall be entitled to terminate any and all of its obligations under this Agreement by delivery of a written notice to the Company to such effect. (5) The Purchaser is not permitted to acquire Shares hereunder to the extent that, giving effect to such proposed acquisition, the beneficial ownership of the Common Stock by the Purchaser (together with its affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Purchaser's for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACTExchange Act")), would exceed 9% of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock potentially issuable upon such acquisition). Notwithstanding anything herein to the contrary, the obligations of the parties hereto is subject to the immediately preceding sentence and will be deemed automatically modified so as to avoid any contravention thereof.exceed

Per Share Purchase Price; Additional Share Elections. (1) The purchase price for each Share issuable under this Agreement on a Settlement Date (the "PER SHARE PURCHASE PRICE") shall equal 87.2587.00% of the average of the VWAP's VWAP for the three Trading Days immediately preceding such Settlement Date, but in no event less than the Floor Price (as defined below). (2) The Company is not required to sell, and the Purchaser is not required to purchase, any Shares at a price that is less than the Floor Price. If the Per Share Purchase Price with respect to a particular Settlement Date is less than the Floor Price: (a) the Purchaser shall be under no further obligation to purchase any Shares that would have been purchased on the applicable Settlement Date, but may, but is not required toat its option, require the Company to issue and sell to it up to the maximum aggregate amount of Shares to be sold hereunder (it being understood that not more than an aggregate of 4,000,000 5,714,286 Shares will be issued and sold under this Agreement), and (b) if Purchaser elects to acquire such Shares under (a) above, then the per share purchase price for such Shares shall equal the Floor Price. (3) At any time prior to 6:00 p.m. (New York time) on the day preceding a Settlement Date, the Purchaser may elect by written notice to the Company, to acquire (in addition to the Shares which it may be obligated to acquire at such time) up to the maximum aggregate amount of Shares to be sold hereunder (it being understood that not more than an aggregate of 4,000,000 5,714,286 Shares will be issued and sold under this Agreement). (4) Notwithstanding anything herein to the contrary, if the VWAP on two consecutive Settlement Dates is less than $0.42, then, at any time thereafter, Purchaser shall be entitled to terminate any and all of its obligations under this Agreement by delivery of a written notice to the Company to such effect. (5) The Purchaser is not permitted to acquire Shares hereunder to the extent that, giving effect to such proposed acquisition, the beneficial ownership of the Common Stock by the Purchaser (together with its affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Purchaser's for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACTExchange Act")), would exceed 9% of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock potentially issuable upon such acquisition). Notwithstanding anything herein to the contrary, the obligations of the parties hereto is subject to the immediately preceding sentence and will be deemed automatically modified so as to avoid any contravention thereof. (6) Notwithstanding anything herein to the contrary, in no event shall the Purchaser or the Company have the right or obligation to purchase or sell a number of Shares hereunder having an aggregate purchase price of more than $2,000,000.00.

Per Share Purchase Price; Additional Share Elections. (1) The purchase price for each Share issuable under this Agreement on a Settlement Date (the "PER SHARE PURCHASE PRICE") shall equal 87.2587.00% of the average of the VWAP's VWAP for the three Trading Days immediately preceding such Settlement Date, but in no event less than the Floor Price (as defined below). (2) The Company is not required to sell, and the Purchaser is not required to purchase, any Shares at a price that is less than the Floor Price. If the Per Share Purchase Price with respect to a particular Settlement Date is less than the Floor Price: (a) the Purchaser shall be under no further obligation to purchase any Shares that would have been purchased on the applicable Settlement Date, but may, but is not required toat its option, require the Company to issue and sell to it up to the maximum aggregate amount of Shares to be sold hereunder (it being understood that not more than an aggregate of 4,000,000 761,905 Shares will be issued and sold under this Agreement), and (b) if Purchaser elects to acquire such Shares under (a) above, then the per share purchase price for such Shares shall equal the Floor Price. (3) At any time prior to 6:00 p.m. (New York time) on the day preceding a Settlement Date, the Purchaser may elect by written notice to the Company, to acquire (in addition to the Shares which it may be obligated to acquire at such time) up to the maximum aggregate amount of Shares to be sold hereunder (it being understood that not more than an aggregate of 4,000,000 761,905 Shares will be issued and sold under this Agreement). (4) Notwithstanding anything herein to the contrary, if the VWAP on two consecutive Settlement Dates is less than $0.42, then, at any time thereafter, Purchaser shall be entitled to terminate any and all of its obligations under this Agreement by delivery of a written notice to the Company to such effect. (5) The Purchaser is not permitted to acquire Shares hereunder to the extent that, giving effect to such proposed acquisition, the beneficial ownership of the Common Stock by the Purchaser (together with its affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Purchaser's for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACTExchange Act")), would exceed 9% of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock potentially issuable upon such acquisition). Notwithstanding anything herein to the contrary, the obligations of the parties hereto is subject to the immediately preceding sentence and will be deemed automatically modified so as to avoid any contravention thereof.exceed

Per Share Purchase Price; Additional Share Elections. (1) The purchase price for each Share issuable under this Agreement on a Settlement Date (the "PER SHARE PURCHASE PRICE") shall equal 87.2587.00% of the average of the VWAP's VWAP for the three Trading Days immediately preceding such Settlement Date, but in no event less than the Floor Price (as defined below). (2) The Company is not required to sell, and the Purchaser is not required to purchase, any Shares at a price that is less than the Floor Price. If the Per Share Purchase Price with respect to a particular Settlement Date is less than the Floor Price: (a) the Purchaser shall be under no further obligation to purchase any Shares that would have been purchased on the applicable Settlement Date, but may, but is not required toat its option, require the Company to issue and sell to it up to the maximum aggregate amount of Shares to be sold hereunder (it being understood that not more than an aggregate of 4,000,000 11,428,571 Shares will be issued and sold under this Agreement), and (b) if Purchaser elects to acquire such Shares under (a) above, then the per share purchase price for such Shares shall equal the Floor Price. (3) At any time prior to 6:00 p.m. (New York time) on the day preceding a Settlement Date, the Purchaser may elect by written notice to the Company, to acquire (in addition to the Shares which it may be obligated to acquire at such time) up to the maximum aggregate amount of Shares to be sold hereunder (it being understood that not more than an aggregate of 4,000,000 11,428,571 Shares will be issued and sold under this Agreement). (4) Notwithstanding anything herein to the contrary, if the VWAP on two consecutive Settlement Dates is less than $0.42, then, at any time thereafter, Purchaser shall be entitled to terminate any and all of its obligations under this Agreement by delivery of a written notice to the Company to such effect. (5) The Purchaser is not permitted to acquire Shares hereunder to the extent that, giving effect to such proposed acquisition, the beneficial ownership of the Common Stock by the Purchaser (together with its affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Purchaser's for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACTExchange Act")), would exceed 9% of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock potentially issuable upon such acquisition). Notwithstanding anything herein to the contrary, the obligations of the parties hereto is subject to the immediately preceding sentence and will be deemed automatically modified so as to avoid any contravention thereof. (6) Notwithstanding anything herein to the contrary, in no event shall the Purchaser or the Company have the right or obligation to purchase or sell a number of Shares hereunder having an aggregate purchase price of more than $3,999,999.99. (1) Subject to the terms and conditions of this Agreement, on each Settlement Date: (x) the Company will deliver to the Purchaser, (A) via such Purchaser's DTC Account through the Depository Trust Company DWAC system, a number of Shares equal to the applicable number of Shares being acquired on such Settlement Date, and (B) a certificate, executed by the President of the Company, to the effect that the Company has complied with and is in compliance with all of the conditions set forth in Section 2, and (y) the Purchaser will, upon receipt of such Shares in the DWAC system, deliver to the Company, an amount in United States dollars equal to the product of (i) such number of Shares, and (ii) the Per Share Purchase Price applicable to such Settlement Date, via wire transfer of immediately available funds to an account designated in writing by the Company for such purpose. (2) In addition to any other rights available to the Purchaser, if on a Settlement Date, the Company fails to deliver to such Purchaser's DTC Account the number of Shares being acquired on such Settlement Date, and if the Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Purchaser of the shares that the Purchaser anticipated receiving from the Company (a "Buy-In"), then, in the Purchaser's sole discretion, the Company shall, within three Trading Days after the Purchaser's request, either (i) pay cash to the Purchaser in an amount equal to the Purchaser's total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased (the "Buy-In Price"), at which point the Company's obligation to deliver such Shares shall terminate, or (ii) promptly honor its obligation to deliver to the Purchaser a certificate or certificates representing such Common Stock and pay cash to the Purchaser in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Stock, times (B) the Closing Price on the date of the event giving rise to the Company's obligation to deliver such certificate.

Per Share Purchase Price; Additional Share Elections. (1) The purchase price for each Share issuable under this Agreement on a Settlement Date (the "PER SHARE PURCHASE PRICE") shall equal 87.2587.00% of the average of the VWAP's VWAP for the three Trading Days immediately preceding such Settlement Date, but in no event less than the Floor Price (as defined below). (2) The Company is not required to sell, and the Purchaser is not required to purchase, any Shares at a price that is less than the Floor Price. If the Per Share Purchase Price with respect to a particular Settlement Date is less than the Floor Price: (a) the Purchaser shall be under no further obligation to purchase any Shares that would have been purchased on the applicable Settlement Date, but may, but is not required toat its option, require the Company to issue and sell to it up to the maximum aggregate amount of Shares to be sold hereunder (it being understood that not more than an aggregate of 4,000,000 800,000 Shares will be issued and sold under this Agreement), and (b) if Purchaser elects to acquire such Shares under (a) above, then the per share purchase price for such Shares shall equal the Floor Price. (3) At any time prior to 6:00 p.m. (New York time) on the day preceding a Settlement Date, the Purchaser may elect by written notice to the Company, to acquire (in addition to the Shares which it may be obligated to acquire at such time) up to the maximum aggregate amount of Shares to be sold hereunder (it being understood that not more than an aggregate of 4,000,000 800,000 Shares will be issued and sold under this Agreement). (4) Notwithstanding anything herein to the contrary, if the VWAP on two consecutive Settlement Dates is less than $0.42, then, at any time thereafter, Purchaser shall be entitled to terminate any and all of its obligations under this Agreement by delivery of a written notice to the Company to such effect. (5) The Purchaser is not permitted to acquire Shares hereunder to the extent that, giving effect to such proposed acquisition, the beneficial ownership of the Common Stock by the Purchaser (together with its affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Purchaser's for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACTExchange Act")), would exceed 9% of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock potentially issuable upon such acquisition). Notwithstanding anything herein to the contrary, the obligations of the parties hereto is subject to the immediately preceding sentence and will be deemed automatically modified so as to avoid any contravention thereof.exceed

Per Share Purchase Price; Additional Share Elections. (1) The purchase price for each Share issuable under this Agreement on a Settlement Date (the "PER SHARE PURCHASE PRICE") shall equal 87.2587.00% of the average of the VWAP's VWAP for the three Trading Days immediately preceding such Settlement Date, but in no event less than the Floor Price (as defined below). (2) The Company is not required to sell, and the Purchaser is not required to purchase, any Shares at a price that is less than the Floor Price. If the Per Share Purchase Price with respect to a particular Settlement Date is less than the Floor Price: (a) the Purchaser shall be under no further obligation to purchase any Shares that would have been purchased on the applicable Settlement Date, but may, but is not required toat its option, require the Company to issue and sell to it up to the maximum aggregate amount of Shares to be sold hereunder (it being understood that not more than an aggregate of 4,000,000 3,000,000 Shares will be issued and sold under this Agreement), and (b) if Purchaser elects to acquire such Shares under (a) above, then the per share purchase price for such Shares shall equal the Floor Price. (3) At any time prior to 6:00 p.m. (New York time) on the day preceding a Settlement Date, the Purchaser may elect by written notice to the Company, to acquire (in addition to the Shares which it may be obligated to acquire at such time) up to the maximum aggregate amount of Shares to be sold hereunder (it being understood that not more than an aggregate of 4,000,000 3,000,000 Shares will be issued and sold under this Agreement). (4) Notwithstanding anything herein to the contrary, if the VWAP on two consecutive Settlement Dates is less than $0.42, then, at any time thereafter, Purchaser shall be entitled to terminate any and all of its obligations under this Agreement by delivery of a written notice to the Company to such effect. (5) The Purchaser is not permitted to acquire Shares hereunder to the extent that, giving effect to such proposed acquisition, the beneficial ownership of the Common Stock by the Purchaser (together with its affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Purchaser's for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACTExchange Act")), would exceed 9% of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock potentially issuable upon such acquisition). Notwithstanding anything herein to the contrary, the obligations of the parties hereto is subject to the immediately preceding sentence and will be deemed automatically modified so as to avoid any contravention thereof.exceed

Per Share Purchase Price; Additional Share Elections. (1) The purchase price for each Share issuable under this Agreement on a Settlement Date (the "PER SHARE PURCHASE PRICE") shall equal 87.2587.00% of the average of the VWAP's VWAP for the three Trading Days immediately preceding such Settlement Date, but in no event less than the Floor Price (as defined below). (2) The Company is not required to sell, and the Purchaser is not required to purchase, any Shares at a price that is less than the Floor Price. If the Per Share Purchase Price with respect to a particular Settlement Date is less than the Floor Price: (a) the Purchaser shall be under no further obligation to purchase any Shares that would have been purchased on the applicable Settlement Date, but may, but is not required toat its option, require the Company to issue and sell to it up to the maximum aggregate amount of Shares to be sold hereunder (it being understood that not more than an aggregate of 4,000,000 1,000,000 Shares will be issued and sold under this Agreement), and (b) if Purchaser elects to acquire such Shares under (a) above, then the per share purchase price for such Shares shall equal the Floor Price. (3) At any time prior to 6:00 p.m. (New York time) on the day preceding a Settlement Date, the Purchaser may elect by written notice to the Company, to acquire (in addition to the Shares which it may be obligated to acquire at such time) up to the maximum aggregate amount of Shares to be sold hereunder (it being understood that not more than an aggregate of 4,000,000 1,000,000 Shares will be issued and sold under this Agreement). (4) Notwithstanding anything herein to the contrary, if the VWAP on two consecutive Settlement Dates is less than $0.42, then, at any time thereafter, Purchaser shall be entitled to terminate any and all of its obligations under this Agreement by delivery of a written notice to the Company to such effect. (5) The Purchaser is not permitted to acquire Shares hereunder to the extent that, giving effect to such proposed acquisition, the beneficial ownership of the Common Stock by the Purchaser (together with its affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Purchaser's for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACTExchange Act")), would exceed 9% of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock potentially issuable upon such acquisition). Notwithstanding anything herein to the contrary, the obligations of the parties hereto is subject to the immediately preceding sentence and will be deemed automatically modified so as to avoid any contravention thereof.exceed

Per Share Purchase Price; Additional Share Elections. (1) The purchase price for each Share issuable under this Agreement on a Settlement Date (the "PER SHARE PURCHASE PRICE") shall equal 87.2587.00% of the average of the VWAP's VWAP for the three Trading Days immediately preceding such Settlement Date, but in no event less than the Floor Price (as defined below). (2) The Company is not required to sell, and the Purchaser is not required to purchase, any Shares at a price that is less than the Floor Price. If the Per Share Purchase Price with respect to a particular Settlement Date is less than the Floor Price: (a) the Purchaser shall be under no further obligation to purchase any Shares that would have been purchased on the applicable Settlement Date, but may, but is not required toat its option, require the Company to issue and sell to it up to the maximum aggregate amount of Shares to be sold hereunder (it being understood that not more than an aggregate of 4,000,000 533,332 Shares will be issued and sold under this Agreement), and (b) if Purchaser elects to acquire such Shares under (a) above, then the per share purchase price for such Shares shall equal the Floor Price. (3) At any time prior to 6:00 p.m. (New York time) on the day preceding a Settlement Date, the Purchaser may elect by written notice to the Company, to acquire (in addition to the Shares which it may be obligated to acquire at such time) up to the maximum aggregate amount of Shares to be sold hereunder (it being understood that not more than an aggregate of 4,000,000 533,332 Shares will be issued and sold under this Agreement). (4) Notwithstanding anything herein to the contrary, if the VWAP on two consecutive Settlement Dates is less than $0.42, then, at any time thereafter, Purchaser shall be entitled to terminate any and all of its obligations under this Agreement by delivery of a written notice to the Company to such effect. (5) The Purchaser is not permitted to acquire Shares hereunder to the extent that, giving effect to such proposed acquisition, the beneficial ownership of the Common Stock by the Purchaser (together with its affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Purchaser's for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACTExchange Act")), would exceed 9% of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock potentially issuable upon such acquisition). Notwithstanding anything herein to the contrary, the obligations of the parties hereto is subject to the immediately preceding sentence and will be deemed automatically modified so as to avoid any contravention thereof.exceed