Make-Whole Shares. (a) Subject at all times to the provisions of Section 2.7(b) below, in the event that on the Anniversary Date, the product of multiplying (i) the total number of DSKX Reference Make-Whole Shares issued to PHMD under this Agreement, by (ii) the Anniversary Market Price, shall be less than $20,000,000, then and in such event, DSKX shall issue to PHMD or its PHMD Transferees, by a date which shall be not later than ten (10) Business Days following the Anniversary Date, that aggregate number of additional shares of DSKX Common Stock, based on the Anniversary Market Price, which, when added to the aggregate number of Reference Make-Whole Shares issued on the Closing Date to PHMD under this Agreement would equal $20,000,000 (such additional shares, the “Make-Whole Shares”). To the extent that PHMD has transferred any DSKX Closing Photo-Tech Merger Shares to one or more PHMD Transferee on or prior to the Anniversary Date, each such PHMD Transferee shall receive his or its pro-rata portion of the Make-Whole Shares determined by the amount by which the number of DSKX Closing Photo-Tech Merger Shares issued by PHMD to such PHMD Transferee bears to all DSKX Closing Photo-Tech Merger Shares issued under this Agreement.
(b) Notwithstanding the provisions of Section 2.7(a) above, in the event that at any time on or before the Anniversary Date (i) PHMD and/or its PHMD Transferees shall have received, on any one or more occasions, aggregate cash net proceeds from the sale of any or all of the Merger Securities issued under this Agreement and the Radiancy Merger Agreement, including payments on the DSKX Note, aggregating $50,000,000, or (ii) PHMD or any PHMD Transferee shall have rejected a bona fide offer from DSKX or its designee to purchase from PHMD or such PHMD Transferee “Offered Shares” (as that term is defined in Section 4.5 of the Stockholders Agreement) at a cash price per share which, when coupled with all cash net proceeds actually received by such Persons from prior sales or collections of Merger Securities, would aggregate $50,000,000, then, and in either event, the “Make-Whole” provisions of Section 2.7(a) of this Agreement would not be applicable and DSKX shall not be obligated to issue any Make-Whole Shares.
Make-Whole Shares. The Company shall take all actions necessary to cause, upon their issuance, the shares of Common Stock issued in satisfaction of any make-whole payments that may become due under the Notes (“Make-Whole Shares”) to be duly authorized, validly issued, fully paid and nonassessable. The Company shall take all action necessary to reserve for issuance such Make-Whole Shares.
Make-Whole Shares. If the five-day VWAP as of the close of business on the six-month anniversary of the Closing Date is less than the 20-day VWAP as of the close of business on the day immediately prior to the Closing Date, the Company shall within two Business Days issue to the Investor a number of additional shares of Common Stock (the “Make Whole Shares”) that is equal to the difference of (a) $100,000 divided by the five-day VWAP as of the close of business on the six-month anniversary of the Closing Date and (b) the aggregate number of Closing Shares issued to the Investor at Closing.
Make-Whole Shares. In the event and to the extent that, by the close of business on December 31, 2018, the total Closing Merger Consideration issued to the Company Stockholder pursuant to Section 1.5(c)(i) above does not have a market value, based on the volume weighted average of Parent Common Stock, (as traded on the Nasdaq Capital Markets or other national securities exchange on which shares of Parent Common Stock then trade) for the ten (10) consecutive trading days immediately prior to the December 31, 2018 (the “2018 Market Price”) of at least $12,000,000, then and in such event, the Parent shall issue, as an integrated part of the overall Merger Consideration, additional shares of its Parent Common Stock to Xxxxxxx (the “Make Whole Shares”) at the then per share 2018 Market Price (subject to a $5.00 floor) to make up any full or partial short-fall in value. The provisions of this Section 1.5(c)(iii) shall terminate if Xxxxxxx elects to sell any of his Parent Common Stock during the three year period ending December 31, 2018 other than in connection with “Permitted Transfers” or a “Sale of Control” (as those terms are defined in the Stockholders Agreement). For example, if on December 31, 2018, the Market Value of the Closing Merger Consideration and the Additional Merger Consideration shall be $6,000,000 and the then Market Price is $4.00 per share, Xxxxxxx shall be entitled to receive, effective as of December 31, 2018, an additional 1,200,000 shares of Parent Make Whole Shares ($6,000,000 divided by the $5.00 per share floor). If such Make Whole Shares were valued at their actual $4.00 2018 Market Price, the Company Stockholder would have received 1,500,000 Make Whole Shares ($6,000,000 divided by $4.00).
Make-Whole Shares. If the 15% Guaranteed Return to the Investor is achieved without the use of any shares from the Collateral, the Investor will receive an additional 66,500 Beneficial Shares, annualized based pro rata on the portion of Purchased Shares still held. In addition, the Commitment Shares will not be taken into account in the calculation of the 15% Guaranteed Return.
Make-Whole Shares. Reference is made to (i) that certain Securities Purchase Agreement, dated as of December 2, 2021, by and between the Company and the Buyer (as amended from time to time, the "2021 SPA"); and (ii) that certain Securities Purchase Agreement, dated as of June 23, 2022, by and between the Company and the Buyer (as amended from time to time, the "2022 SPA"). Pursuant to Section 4(o) of each of the 2021 SPA and the 2022 SPA, the Company agreed to issue the Buyer certain Commitment Fee Shares (as defined in each of the 2021 SPA and the 2022 SPA, respectively), and to issue the Buyer certain additional shares of Common Stock pursuant to one or more Sale Reconciliations (as defined in each of the 2021 SPA and the 2022 SPA, respectively) until such time as the Buyer has received the full amount of the Commitment Fee (as defined in each of the 2021 SPA and the 2022 SPA, respectively). As a further inducement for the Buyer to enter into the transactions contemplated by this Agreement, the Company agrees that the Adjustment Period (as defined in each of the 2021 SPA and the 2022 SPA, respectively) shall be extended until the later of (y) thirty-six (36) months from the date of this Agreement, and (z) thirty-six (36) months from the last date of the Adjustment Period as originally provided in the 2021 SPA or the 2022 SPA, as applicable. For the avoidance of doubt, Section 4(o) of each of the 2021 SPA and the 2022 SPA shall be deemed to be amended as necessary to amend the definition of "Adjustment Period" as provided in the foregoing, and all other provisions of such Section 4(o) of each of the 2021 SPA and 2022 SPA shall continue in full force and effect, regardless of any prior expiration of any Adjustment Period. Any such shares of Common Stock that are issued pursuant to a Sale Reconciliation (whether pursuant to the 2021 SPA or the 2022 SPA) shall be referred to as the "Make-Whole Shares."
Make-Whole Shares. If the Company does not honor the Put Option or the Preferred Put Option in full because the Company has insufficient cash or is otherwise under a restraint that prevents the Company’s compliance, then, St. Xxxxxx shall be deemed to be a creditor of Company in the amount of the outstanding balance of the Put Obligations, together with interest on the Put Obligations at the rate of eighteen percent (18%) per annum. With respect to the Put Shares that have not been honored for payment, those Shares shall be deemed redeemed by the Company as of the Put Closing Date and St. Xxxxxx shall have no power or authority to control the disposition or voting of those Shares. At St. George’s option, St. Xxxxxx xxx elect to draw down tranches of Common Shares, subject to the limitation below, for sale in the market and will apply the net proceeds (after commissions) to the outstanding balance of the Put Obligations, plus interest. Insofar as the net proceeds of any tranche of Common Shares is insufficient to extinguish the Put Obligations, St. Xxxxxx xxx request from time to time further tranches of Common Shares until Company either pays the Put Obligations in cash or the net proceeds from the sale of Common Shares are sufficient to extinguish the Put Obligations. Each tranche of Common Shares requested by St. Xxxxxx shall not exceed 9.9% of the issued and outstanding Common Shares of Company. The Company shall electronically deliver the tranche shares to an account designated by St. Xxxxxx within 3 Business Days of the Company’s receipt of the request. All Common Shares issued to St. Xxxxxx following Company’s failure to honor the Put Option or the Preferred Put Option pursuant to this SECTION 11.3 shall be referred to as “Make-Whole Shares”. On the Put Closing Date, the Put Shares shall be deemed to be redeemed
Make-Whole Shares. Acquiror agrees to guarantee a $0.50 per share stock value of the Closing Shares, the Escrow Shares and the Additional Shares. The stock price will be determined based on the average of the low and high bid prices for Acquiror's common stock quoted for the last ten trading days prior to three business days prior to the effectiveness of a registration covering the subject shares as provided in the Registration Rights described below (the "Effective Date"). In connection therewith, Acquiror agrees to subtract the stock price, calculated as set forth above, from $0.50 and, on the Effective Date, issue to the Company Shareholders shares of Acquiror's common stock with a fair market value equal to the aggregate amount of such shortfall (the "Make Whole Shares"). By way of illustration, if the Closing Shares, the Escrow Shares and the Additional Shares total 20 million shares, but the fair market value as determined on effective date is only $0.30 per share, then Acquiror would have to issue to the Company Shareholders an amount of Make Whole Shares with a fair market value equal to $4,000,000 (20 million X $0.20), or 13,333,333 shares ($4 million/$0.30 ).
Make-Whole Shares. In the event and to the extent that, by the close of business on June 30, 2018, the total Closing Merger Consideration issued to the Company Stockholder pursuant to Section 1.5(c)(i) above does not have a market value, based on the volume weighted average of Parent Common Stock, (as traded on the Nasdaq Capital Markets or other national securities exchange on which shares of Parent Common Stock then trade) for the ten (10) consecutive trading days immediately prior to the June 30, 2018 (the “June 30, 2018 Market Price”) of at least $12,000,000, then and in such event, the Parent shall issue, as an integrated part of the overall Merger Consideration, additional shares of its Parent Common Stock to Xxxxxxx (the “Make Whole Shares”) at the then per share June 30, 2018 Market Price (subject to a $5.00 floor price) to make up any full or partial short-fall in value. The provisions of this Section 1.5(c)(iii) shall terminate if Xxxxxxx elects to sell any of his Parent Common Stock during the two and one-half year period ending June 30, 2018 other than in connection with “Permitted Transfers” or a “Sale of Control” (as those terms are defined in the Stockholders Agreement). For example, if on June 30, 2018, the June 30, 2018 Market Value of the Closing Merger Consideration and the Additional Merger Consideration shall be $6,000,000 and the then June 30, 2018 Market Price is $4.00 per share, Xxxxxxx shall be entitled to receive, effective as of June 30, 2018, an additional 1,200,000 shares of Parent Make Whole Shares ($6,000,000 divided by the $5.00 per share floor). If such Make Whole Shares were valued at their actual $4.00 June 30, 2018 Market Price, the Company Stockholder would have received 1,500,000 Make Whole Shares ($6,000,000 divided by $4.00).
Make-Whole Shares. At the end of the Lock-Up Period, in the event that the Buyer Common Stock issuable to Shareholder in accordance to this Agreement has a value equal to or less than $3,000,000 in the aggregate on the date the Lock-Up Period expires (based on the average closing "print' prices at 4:00 p.m. of the Buyer's Common Stock on the last five days prior to the date the Lock-Up Period expires as listed or quoted on any national securities exchange or over-the-counter market (including any tier maintained by the OTC Markets, Inc.), as the case may be (the "Lock-Up Termination Date Closing Price") multiplied by the Initial Consideration) (the "Lock-Up Termination Date"), the Buyer shall issue Shareholder such number of additional shares of Buyer Common Stock ("Additional Buyer Common Stock") equal to the lesser of (i) 9.99% of the outstanding shares of the Buyer's Common Stock (as confirmed by the Buyer's transfer agent) as of the Lock-Up Termination Date or (ii) the difference between $3,000,000 and the value of the Initial Consideration as of the Lock-Up Termination Date divided by the Lock-Up Termination Date Closing Price. Notwithstanding the foregoing, in lieu of issuance any Additional Buyer Common Stock in accordance with this Section, he Buyer may, in its sole discretion, pay to the Shareholder an amount in cash equal to the aggregate value of the Additional Buyer Common Stock to be issued in accordance with this Section ("Cash True-Up").
