Common use of Cash Make-Whole Payment Clause in Contracts

Cash Make-Whole Payment. In addition to the payment of the Cash Commitment Fee to the Investor pursuant to Section 10.1(ii)(a) above and the issuance of the Commitment Shares to the Investor pursuant to Section 10.1(ii)(b) above, if, after the resale of all Commitment Shares by the Investor after the Commencement Date, the aggregate amount of cash proceeds from the resale of all of the Commitment Shares by the Investor is less than $200,000, then, the Company shall promptly upon the Investor’s presentation to the Company of an invoice and reasonable supporting documentation (but in no event later than two (2) Trading Days thereafter), and as directed by the Investor in writing to the Company, pay to the Investor, in cash, the difference between (i) $200,000 and (ii) the aggregate amount of the net proceeds received by the Investor from the resale of all of the Commitment Shares by the Investor (such cash payment, the “Cash Make-Whole Payment”). If, after the Commencement Date, (A) any Commitment Shares have not been resold by the Investor prior to the earliest of (1) the effective date of any termination of this Agreement by the Company or the Investor in accordance with Article VIII of this Agreement, (2) the 121st calendar day immediately following the Effective Date of the Initial Registration Statement filed by the Company with the Commission pursuant to this Agreement and the Registration Rights Agreement, (3) the calendar day immediately following the date on which the effectiveness of the Initial Registration Statement lapses for any reason (including due to the issuance of a stop order by the Commission), or the Initial Registration Statement or Prospectus relating thereto otherwise becomes unavailable to the Investor for the resale of all of the Commitment Shares included therein for any reason, and (4) such time that the Common Stock has not traded on the Trading Market (or, if the Common Stock is then listed on an Eligible Market, on such Eligible Market) for greater than three (3) Trading Days, whether due to a de-listing of the Common Stock from the Trading Market (or, from such Eligible Market, as applicable), or due to a complete cessation of trading on the Trading Market (or, on such Eligible Market, as applicable), in each case other than due to the Investor’s material breach of its obligations under this Agreement, and (B) the aggregate amount of cash proceeds from the resale of all Commitment Shares that have been resold by the Investor prior to such earliest date in clause (A) of this sentence (if any) is less than $200,000, then, the Company shall promptly upon the Investor’s presentation to the Company of an invoice and reasonable supporting documentation (but in no event later than two (2) Trading Days thereafter), and as directed by the Investor in writing to the Company, pay to the Investor, in cash, the Cash Make-Whole Payment and, upon the Investor’s receipt of such Cash Make-Whole Payment, the Investor shall promptly (but in no event later than two (2) Trading Days thereafter) return to the Company for cancellation all of the Commitment Shares then held by the Investor that have not been resold by the Investor prior to such earliest time. If, for any reason whatsoever, other than due to the Investor’s material breach of its obligations under the Purchase Agreement or the Registration Rights Agreement (and irrespective of whether or not the Company is in compliance with its obligations under the Registration Rights Agreement), (I) either (a) the Initial Registration Statement shall not have been filed by the Company with and declared effective by the Commission prior to the 181st calendar day immediately following the Closing Date or (b) the Commencement shall not have occurred prior to the 181st calendar day immediately following the Closing Date, and (II) none of the Commitment Shares that were issued to the Investor pursuant to Section 10.1(ii)(b) of this Agreement shall have been resold by the Investor prior to such 181st calendar day immediately following the Closing Date, then, the Company shall promptly upon the Investor’s presentation to the Company of an invoice and reasonable supporting documentation (but in no event later than two (2) Trading Days thereafter), and as directed by the Investor in writing to the Company, pay to the Investor, in cash, the Cash Make-Whole Payment and, upon the Investor’s receipt of such Cash Make-Whole Payment, the Investor shall promptly (but in no event later than two (2) Trading Days thereafter) return to the Company for cancellation all of the Commitment Shares that were issued to the Investor pursuant to Section 10.1(ii)(b) of this Agreement that have not been resold by the Investor prior to such 181st calendar day immediately following the Closing Date. The Investor and the Company acknowledge and agree that the Cash Make-Whole Payment shall not be payable by the Company to the Investor if, after the Commencement, the aggregate amount of cash proceeds from the resale by the Investor of Commitment Shares is equal to or greater than $200,000. For the avoidance of doubt, the Cash Make-Whole Payment shall be fully earned and non-refundable as of the date such Cash Make-Whole Payment is made by the Company to the Investor pursuant to this Section 10.1(ii)(c), as applicable, regardless of whether the Commencement shall have occurred, whether any VWAP Purchases or Intraday VWAP Purchases are made or settled hereunder or any subsequent termination of this Agreement.

Cash Make-Whole Payment. In addition to the payment issuance of the Cash Commitment Fee Shares to the Investor pursuant to Section 10.1(ii)(a) above and the issuance payment of the Cash Commitment Shares Fee to the Investor pursuant to Section 10.1(ii)(b) above, if, after the resale of all Commitment Shares by the Investor after the Commencement Date, the aggregate amount of cash proceeds from the resale of all of the Commitment Shares by the Investor is less than $200,000250,000, then, the Company shall promptly upon the Investor’s presentation to the Company of an invoice and reasonable supporting documentation (but in no event later than two (2) Trading Days thereafter), and as directed by the Investor in writing to the Company, pay to the Investor, in cash, the difference between (i) $200,000 250,000 and (ii) the aggregate amount of the net proceeds received by the Investor from the resale of all of the Commitment Shares by the Investor (such cash payment, the “Cash Make-Whole Payment”). If, after the Commencement Date, (A) any Commitment Shares have not been resold by the Investor prior to the earliest of (1) the effective date of any termination of this Agreement by the Company or the Investor in accordance with Article VIII of this Agreement, (2) the 121st calendar day immediately following the Effective Date of the Initial Registration Statement filed by the Company with the Commission pursuant to this Agreement and the Registration Rights Agreement, (3) the calendar day immediately following the date on which the effectiveness of the Initial Registration Statement lapses for any reason (including due to the issuance of a stop order by the Commission), or the Initial Registration Statement or Prospectus relating thereto otherwise becomes unavailable to the Investor for the resale of all of the Commitment Shares included therein for any reason, and (4) such time that the Common Stock has not traded on the Trading Market (or, if the Common Stock is then listed on an Eligible Market, on such Eligible Market) for greater than three (3) Trading Days, whether due to a de-listing of the Common Stock from the Trading Market (or, from such Eligible Market, as applicable), or due to a complete cessation of trading on the Trading Market (or, on such Eligible Market, as applicable), in each case other than due to the Investor’s material breach of its obligations under this Agreement, and (B) the aggregate amount of cash proceeds from the resale of all Commitment Shares that have been resold by the Investor prior to such earliest date in clause (A) of this sentence (if any) is less than $200,000250,000, then, the Company shall promptly upon the Investor’s presentation to the Company of an invoice and reasonable supporting documentation (but in no event later than two (2) Trading Days thereafter), and as directed by the Investor in writing to the Company, pay to the Investor, in cash, the Cash Make-Whole Payment and, upon the Investor’s receipt of such Cash Make-Whole Payment, the Investor shall promptly (but in no event later than two (2) Trading Days thereafter) return to the Company for cancellation all of the Commitment Shares then held by the Investor that have not been resold by the Investor prior to such earliest time. If, for any reason whatsoever, other than due to the Investor’s material breach of its obligations under the Purchase Agreement or the Registration Rights Agreement (and irrespective of whether or not the Company is in compliance with its obligations under the Registration Rights Agreement), (I) either (a) the Initial Registration Statement shall not have been filed by the Company with and declared effective by the Commission prior to the 181st calendar day immediately following the Closing Date or (b) the Commencement shall not have occurred prior to the 181st calendar day immediately following the Closing Date, and (II) none of the Commitment Shares that were issued to the Investor pursuant to Section 10.1(ii)(b10.1(ii)(a) of this Agreement shall have been resold by the Investor prior to such 181st calendar day immediately following the Closing Date, then, the Company shall promptly upon the Investor’s presentation to the Company of an invoice and reasonable supporting documentation (but in no event later than two (2) Trading Days thereafter), and as directed by the Investor in writing to the Company, pay to the Investor, in cash, the Cash Make-Whole Payment and, upon the Investor’s receipt of such Cash Make-Whole Payment, the Investor shall promptly (but in no event later than two (2) Trading Days thereafter) return to the Company for cancellation all of the Commitment Shares that were issued to the Investor pursuant to Section 10.1(ii)(b10.1(ii)(a) of this Agreement that have not been resold by the Investor prior to such 181st calendar day immediately following the Closing Date. The Investor and the Company acknowledge and agree that the Cash Make-Whole Payment shall not be payable by the Company to the Investor if, after the Commencement, the aggregate amount of cash proceeds from the resale by the Investor of Commitment Shares is equal to or greater than $200,000250,000. For the avoidance of doubt, the Cash Make-Whole Payment shall be fully earned and non-refundable as of the date such Cash Make-Whole Payment is made by the Company to the Investor pursuant to this Section 10.1(ii)(c), as applicable, regardless of whether the Commencement shall have occurred, whether any VWAP Purchases or Intraday VWAP Purchases are made or settled hereunder or any subsequent termination of this Agreement.

Cash Make-Whole Payment. In addition to the payment of the Cash Commitment Fee to the Investor pursuant to Section 10.1(ii)(a) above and the issuance of the Commitment Shares to the Investor pursuant to Section 10.1(ii)(b) above, if, after the resale of all Commitment Shares by the Investor after the Commencement Date, the aggregate amount of cash proceeds from the resale of all of the Commitment Shares by the Investor is less than $200,000, then, the Company shall promptly upon the Investor’s presentation to the Company of an invoice and reasonable supporting documentation (but in no event later than two (2) Trading Days thereafter), and as directed by the Investor in writing to the Company, pay to the Investor, in cash, the difference between (i) $200,000 and (ii) the aggregate amount of the net proceeds received by the Investor from the resale of all of the Commitment Shares by the Investor (such cash payment, the “Cash Make-Whole Payment”). If, after the Commencement Date, (A) any Commitment Shares have not been resold by the Investor prior to the earliest of (1) the effective date of any termination of this Agreement by the Company or the Investor in accordance with Article VIII of this Agreement, (2) the 121st calendar day immediately following the Effective Date of the Initial Registration Statement filed by the Company with the Commission pursuant to this Agreement and the Registration Rights Agreement, (3) the calendar day immediately following the date on which the effectiveness of the Initial Registration Statement lapses for any reason (including due to the issuance of a stop order by the Commission), or the Initial Registration Statement or Prospectus relating thereto otherwise becomes unavailable to the Investor for the resale of all of the Commitment Shares included therein for any reason, and (4) such time that the Common Stock has not traded on the Trading Market (or, if the Common Stock is then listed on an Eligible Market, on such Eligible Market) for greater than three (3) Trading Days, whether due to a de-listing of the Common Stock from the Trading Market (or, from such Eligible Market, as applicable), or due to a complete cessation of trading on the Trading Market (or, on such Eligible Market, as applicable), in each case other than due to the Investor’s material breach of its obligations under this Agreement, and (B) the aggregate amount of cash proceeds from the resale of all Commitment Shares that have been resold by the Investor prior to such earliest date in clause (A) of this sentence (if any) is less than $200,000, then, the Company shall promptly upon the Investor’s presentation to the Company of an invoice and reasonable supporting documentation (but in no event later than two (2) Trading Days thereafter), and as directed by the Investor in writing to the Company, pay to the Investor, in cash, the Cash Make-Whole Payment and, upon the Investor’s receipt of such Cash Make-Whole Payment, the Investor shall promptly (but in no event later than two (2) Trading Days thereafter) return to the Company for cancellation all of the Commitment Shares then held by the Investor that have not been resold by the Investor prior to such earliest time. If, for any reason whatsoever, other than due to the Investor’s material breach of its obligations under the Purchase Agreement or the Registration Rights Agreement (and irrespective of whether or not the Company is in compliance with its obligations under the Registration Rights Agreement), (I) either (a) the Initial Registration Statement shall not have been filed by the Company with and declared effective by the Commission prior to the 181st calendar day immediately following the Closing Date or (b) the Commencement shall not have occurred prior to the 181st calendar day immediately following the Closing Date, and (II) none of the Commitment Shares that were issued to the Investor pursuant to Section 10.1(ii)(b) of this Agreement shall have been resold by the Investor prior to such 181st calendar day immediately following the Closing Date, then, the Company shall promptly upon the Investor’s presentation to the Company of an invoice and reasonable supporting documentation (but in no event later than two (2) Trading Days thereafter), and as directed by the Investor in writing to the Company, pay to the Investor, in cash, the Cash Make-Whole Payment and, upon the Investor’s receipt of such Cash Make-Whole Payment, the Investor shall promptly (but in no event later than two (2) Trading Days thereafter) return to the Company for cancellation all of the Commitment Shares that were issued to the Investor pursuant to Section 10.1(ii)(b) of this Agreement that have not been resold by the Investor prior to such 181st calendar day immediately following the Closing Date. The Investor and the Company acknowledge and agree that the Cash Make-Whole Payment shall not be payable by the Company to the Investor if, after the Commencement, the aggregate amount of cash proceeds from the resale by the Investor of Commitment Shares is equal to or greater than $200,000. For the avoidance of doubt, the Cash Make-Whole Payment shall be fully earned and non-refundable as of the date such Cash Make-Whole Payment is made by the Company to the Investor pursuant to this Section 10.1(ii)(c), as applicable, regardless of whether the Commencement shall have occurred, whether any VWAP Purchases or Intraday VWAP Purchases are made or settled hereunder or any subsequent termination of this Agreement.. ​

Cash Make-Whole Payment. In addition to the payment of the Cash Commitment Fee to the Investor pursuant to Section 10.1(ii)(a) above and the issuance of the Commitment Shares to the Investor pursuant to Section 10.1(ii)(b10.1(ii)(a) above, if, after the resale of all Commitment Shares by the Investor after the Commencement Date, the aggregate amount of cash proceeds from the resale of all of the Commitment Shares by the Investor is less than $200,000500,000, then, the Company shall promptly upon the Investor’s presentation to the Company of an invoice and reasonable supporting documentation (but in no event later than two (2) Trading Days thereafter), and as directed by the Investor in writing to the Company, pay to the Investor, in cash, the difference between (i) $200,000 500,000 and (ii) the aggregate amount of the net proceeds received by the Investor from the resale of all of the Commitment Shares by the Investor (such cash payment, the “Cash Make-Whole Payment”). If, after the Commencement Date, (A) any Commitment Shares have not been resold by the Investor prior to the earliest of (1) the effective date of any termination of this Agreement by the Company or the Investor in accordance with Article VIII of this Agreement, (2) (I) the 121st 181st calendar day immediately following the Effective Date of the Initial Registration Statement filed by the Company with the Commission pursuant to this Agreement and the Registration Rights Agreement, or, (II) if the Commitment Shares are subject to the lock-up restrictions of FINRA Rule 5110(e)(1), the 271st calendar day immediately following the Effective Date of the Initial Registration Statement filed by the Company with the Commission pursuant to this Agreement and the Registration Rights Agreement, (3) the calendar day immediately following the date on which the effectiveness of the Initial Registration Statement lapses for any reason (including due to the issuance of a stop order by the Commission), or the Initial Registration Statement or Prospectus relating thereto otherwise becomes unavailable to the Investor for the resale of all of the Commitment Shares included therein for any reason, and (4) such time that the Common Stock has not traded on the Trading Market (or, if the Common Stock is then listed on an Eligible Market, on such Eligible Market) for greater than three (3) Trading Days, whether due to a de-listing of the Common Stock from the Trading Market (or, from such Eligible Market, as applicable), or due to a complete cessation of trading on the Trading Market (or, on such Eligible Market, as applicable), in each case other than due to the Investor’s material breach of its obligations under this Agreement, and (B) the aggregate amount of cash proceeds from the resale of all Commitment Shares that have been resold by the Investor prior to such earliest date in clause (A) of this sentence (if any) is less than $200,000500,000, then, the Company shall promptly upon the Investor’s presentation to the Company of an invoice and reasonable supporting documentation (but in no event later than two (2) Trading Days thereafter), and as directed by the Investor in writing to the Company, pay to the Investor, in cash, the Cash Make-Whole Payment and, upon the Investor’s receipt of such Cash Make-Whole Payment, the Investor shall promptly (but in no event later than two (2) Trading Days thereafter) return to the Company for cancellation all of the Commitment Shares then held by the Investor that have not been resold by the Investor prior to such earliest time. If, for any reason whatsoever, other than due to the Investor’s material breach of its obligations under the Purchase Agreement or the Registration Rights Agreement (and irrespective of whether or not the Company is in compliance with its obligations under the Registration Rights Agreement), (I) either (a) the Initial Registration Statement shall not have been filed by the Company with and declared effective by the Commission prior to the 181st calendar day immediately following the Closing Date or (b) the Commencement shall not have occurred prior to the 181st calendar day immediately following the Closing Date, and (II) none of the Commitment Shares that were issued to the Investor pursuant to Section 10.1(ii)(b) of this Agreement shall have been resold by the Investor prior to such 181st calendar day immediately following the Closing Date, then, the Company shall promptly upon the Investor’s presentation to the Company of an invoice and reasonable supporting documentation (but in no event later than two (2) Trading Days thereafter), and as directed by the Investor in writing to the Company, pay to the Investor, in cash, the Cash Make-Whole Payment and, upon the Investor’s receipt of such Cash Make-Whole Payment, the Investor shall promptly (but in no event later than two (2) Trading Days thereafter) return to the Company for cancellation all of the Commitment Shares that were issued to the Investor pursuant to Section 10.1(ii)(b10.1(ii)(a) of this Agreement that have not been resold by the Investor prior to such 181st calendar day immediately following the Closing DateAgreement. The Investor and the Company acknowledge and agree that the Cash Make-Whole Payment shall not be payable by the Company to the Investor if, after the Commencement, the aggregate amount of cash proceeds from the resale by the Investor of Commitment Shares is equal to or greater than $200,000500,000. For the avoidance of doubt, the Cash Make-Whole Payment shall be fully earned and non-refundable as of the date such Cash Make-Whole Payment is made by the Company to the Investor pursuant to this Section 10.1(ii)(c10.1(ii)(b), as applicable, regardless of whether the Commencement shall have occurred, whether any VWAP Purchases or Intraday VWAP Purchases are made or settled hereunder or any subsequent termination of this Agreement.

Cash Make-Whole Payment. In addition to the payment issuance of the Cash Commitment Fee Shares to the Investor pursuant to Section 10.1(ii)(a) above and the issuance payment of the Cash Commitment Shares Fee to the Investor pursuant to Section 10.1(ii)(b) above, if, after the resale of all Commitment Shares by the Investor after the Commencement Date, the aggregate amount of cash proceeds from the resale of all of the Commitment Shares by the Investor is less than $200,000100,000, then, the Company shall promptly upon the Investor’s presentation to the Company of an invoice and reasonable supporting documentation (but in no event later than two (2) Trading Days thereafter), and as directed by the Investor in writing to the Company, pay to the Investor, in cash, the difference between (i) $200,000 100,000 and (ii) the aggregate amount of the net proceeds received by the Investor from the resale of all of the Commitment Shares by the Investor (such cash payment, the “Cash Make-Whole Payment”). If, after the Commencement Date, (A) any Commitment Shares have not been resold by the Investor prior to the earliest of (1) the effective date of any termination of this Agreement by the Company or the Investor in accordance with Article VIII of this Agreement, (2) the 121st calendar day immediately following the Effective Date of the Initial Registration Statement filed by the Company with the Commission pursuant to this Agreement and the Registration Rights Agreement, (3) the calendar day immediately following the date on which the effectiveness of the Initial Registration Statement lapses for any reason (including due to the issuance of a stop order by the Commission), or the Initial Registration Statement or Prospectus relating thereto otherwise becomes unavailable to the Investor for the resale of all of the Commitment Shares included therein for any reason, and (4) such time that the Common Stock has not traded on the Trading Market (or, if the Common Stock is then listed on an Eligible Market, on such Eligible Market) for greater than three (3) Trading Days, whether due to a de-listing of the Common Stock from the Trading Market (or, from such Eligible Market, as applicable), or due to a complete cessation of trading on the Trading Market (or, on such Eligible Market, as applicable), in each case other than due to the Investor’s material breach of its obligations under this Agreement, and (B) the aggregate amount of cash proceeds from the resale of all Commitment Shares that have been resold by the Investor prior to such earliest date in clause (A) of this sentence (if any) is less than $200,000100,000, then, the Company shall promptly upon the Investor’s presentation to the Company of an invoice and reasonable supporting documentation (but in no event later than two (2) Trading Days thereafter), and as directed by the Investor in writing to the Company, pay to the Investor, in cash, the Cash Make-Whole Payment and, upon the Investor’s receipt of such Cash Make-Whole Payment, the Investor shall promptly (but in no event later than two (2) Trading Days thereafter) return to the Company for cancellation all of the Commitment Shares then held by the Investor that have not been resold by the Investor prior to such earliest time. If, for any reason whatsoever, other than due to the Investor’s material breach of its obligations under the Purchase Agreement or the Registration Rights Agreement (and irrespective of whether or not the Company is in compliance with its obligations under the Registration Rights Agreement), (I) either (a) the Initial Registration Statement shall not have been filed by the Company with and declared effective by the Commission prior to the 181st calendar day immediately following the Closing Date or (b) the Commencement shall not have occurred prior to the 181st calendar day immediately following the Closing Date, and (II) none of the Commitment Shares that were issued to the Investor pursuant to Section 10.1(ii)(b10.1(ii)(a) of this Agreement shall have been resold by the Investor prior to such 181st calendar day immediately following the Closing Date, then, the Company shall promptly upon the Investor’s presentation to the Company of an invoice and reasonable supporting documentation (but in no event later than two (2) Trading Days thereafter), and as directed by the Investor in writing to the Company, pay to the Investor, in cash, the Cash Make-Whole Payment and, upon the Investor’s receipt of such Cash Make-Whole Payment, the Investor shall promptly (but in no event later than two (2) Trading Days thereafter) return to the Company for cancellation all of the Commitment Shares that were issued to the Investor pursuant to Section 10.1(ii)(b10.1(ii)(a) of this Agreement that have not been resold by the Investor prior to such 181st calendar day immediately following the Closing Date. The Investor and the Company acknowledge and agree that the Cash Make-Whole Payment shall not be payable by the Company to the Investor if, after the Commencement, the aggregate amount of cash proceeds from the resale by the Investor of Commitment Shares is equal to or greater than $200,000100,000. For the avoidance of doubt, the Cash Make-Whole Payment shall be fully earned and non-refundable as of the date such Cash Make-Whole Payment is made by the Company to the Investor pursuant to this Section 10.1(ii)(c), as applicable, regardless of whether the Commencement shall have occurred, whether any VWAP Purchases or Intraday VWAP Purchases are made or settled hereunder or any subsequent termination of this Agreement.

Cash Make-Whole Payment. In addition to the payment of the Cash Commitment Fee to the Investor pursuant to Section 10.1(ii)(a) above and the issuance of the Commitment Shares to the Investor pursuant to Section 10.1(ii)(b10.1(ii)(a) above, if, after the resale of all Commitment Shares by the Investor after the Commencement Date, the aggregate amount of cash proceeds from the resale of all of the Commitment Shares by the Investor is less than $200,000500,000, then, the Company shall promptly upon the Investor’s presentation to the Company of an invoice and reasonable supporting documentation (but in no event later than two (2) Trading Days thereafter), and as directed by the Investor in writing to the Company, pay to the Investor, in cash, the difference between (i) $200,000 500,000 and (ii) the aggregate amount of the net proceeds received by the Investor from the resale of all of the Commitment Shares by the Investor (such cash payment, the “Cash Make-Whole Payment”). If, after the Commencement Date, (A) any Commitment Shares have not been resold by the Investor prior to the earliest of (1) the effective date of any termination of this Agreement by the Company or the Investor in accordance with Article VIII of this Agreement, (2) the 121st calendar day immediately following the Effective Date of the Initial Registration Statement filed by the Company with the Commission pursuant to this Agreement and the Registration Rights Agreement, (3) the calendar day immediately following the date on which the effectiveness of the Initial Registration Statement lapses for any reason (including due to the issuance of a stop order by the Commission), or the Initial Registration Statement or Prospectus relating thereto otherwise becomes unavailable to the Investor for the resale of all of the Commitment Shares included therein for any reason, and (4) such time that the Common Stock has not traded on the Trading Market (or, if the Common Stock is then listed on an Eligible Market, on such Eligible Market) for greater than three (3) Trading Days, whether due to a de-listing of the Common Stock from the Trading Market (or, from such Eligible Market, as applicable), or due to a complete cessation of trading on the Trading Market (or, on such Eligible Market, as applicable), in each case other than due to the Investor’s material breach of its obligations under this Agreement, and (B) the aggregate amount of cash proceeds from the resale of all Commitment Shares that have been resold by the Investor prior to such earliest date in clause (A) of this sentence (if any) is less than $200,000500,000, then, the Company shall promptly upon the Investor’s presentation to the Company of an invoice and reasonable supporting documentation (but in no event later than two (2) Trading Days thereafter), and as directed by the Investor in writing to the Company, pay to the Investor, in cash, the Cash Make-Whole Payment and, upon the Investor’s receipt of such Cash Make-Whole Payment, the Investor shall promptly (but in no event later than two (2) Trading Days thereafter) return to the Company for cancellation all of the Commitment Shares then held by the Investor that have not been resold by the Investor prior to such earliest time. If, for any reason whatsoever, other than due to the Investor’s material breach of its obligations under the Purchase Agreement or the Registration Rights Agreement (and irrespective of whether or not the Company is in compliance with its obligations under the Registration Rights Agreement), (I) either (a) the Initial Registration Statement shall not have been filed by the Company with and declared effective by the Commission prior to the 181st calendar day immediately following the Closing Date or (b) the Commencement shall not have occurred prior to the 181st calendar day immediately following the Closing Date, and (II) none of the Commitment Shares that were issued to the Investor pursuant to Section 10.1(ii)(b10.1(ii)(a) of this Agreement shall have been resold by the Investor prior to such 181st calendar day immediately following the Closing Date, then, the Company shall promptly upon the Investor’s presentation to the Company of an invoice and reasonable supporting documentation (but in no event later than two (2) Trading Days thereafter), and as directed by the Investor in writing to the Company, pay to the Investor, in cash, the Cash Make-Whole Payment and, upon the Investor’s receipt of such Cash Make-Whole Payment, the Investor shall promptly (but in no event later than two (2) Trading Days thereafter) return to the Company for cancellation all of the Commitment Shares that were issued to the Investor pursuant to Section 10.1(ii)(b10.1(ii)(a) of this Agreement that have not been resold by the Investor prior to such 181st calendar day immediately following the Closing Date. The Investor and the Company acknowledge and agree that the Cash Make-Whole Payment shall not be payable by the Company to the Investor if, after the Commencement, the aggregate amount of cash proceeds from the resale by the Investor of Commitment Shares is equal to or greater than $200,000500,000. For the avoidance of doubt, the Cash Make-Whole Payment shall be fully earned and non-refundable as of the date such Cash Make-Whole Payment is made by the Company to the Investor pursuant to this Section 10.1(ii)(c10.1(ii)(b), as applicable, regardless of whether the Commencement shall have occurred, whether any VWAP Purchases or Intraday VWAP Purchases are made or settled hereunder or any subsequent termination of this Agreement. The Investor and the Company further agree that if, after the resale of all Commitment Shares by the Investor after the Commencement Date, the aggregate amount of cash proceeds from the resale of all of the Commitment Shares by the Investor is greater than $500,000, then, the Investor shall promptly (but in no event later than five (5) Trading Days after the date on which all of the Commitment Shares have been resold by the Investor) present to the Company reasonable supporting documentation setting forth the aggregate amount of cash proceeds from the resale of all of the Commitment Shares by the Investor, including, without limitation, the specific dollar amount by which such aggregate cash proceeds exceed $500,000, and promptly thereafter (but in no event later than two (2) Trading Days after the presentation of such reasonable supporting documentation to the Company), and as directed by the Company to the Investor in writing, pay to the Company, an amount in cash equal to the product of (X) 0.50 and (Y) the aggregate amount of the net proceeds received by the Investor from the resale of all of the Commitment Shares by the Investor, minus $500,000.