Common use of Make Whole Clause in Contracts

Make Whole. If the VWAP (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)) for the thirty (30) Trading Days beginning on the Trading Date following a Conversion Date (the “30 Day VWAP”) is lower than the Conversion Price on the Conversion Date, the Company shall make a payment in cash or Common Shares, at its election but subject to the limitations set forth below (the “Make Whole Payment”). In the event that the Company elects to make a Make Whole Payment in Common Shares, it shall transfer to the Holder the number of Common Shares (the “Make Whole Shares”) equal to the difference between (A) the principal amount converted on the Conversion Date divided by 30 Day VWAP and (B) principal amount converted divided by the Conversion Price on the Conversion Date. In the event that the Company elects to pay the Make Whole Payment in cash it shall pay an amount equal to the number of Make Whole Shares multiplied by the 30 Day VWAP. The Company shall make the Make Whole Payment no later than thirty-five (35) Trading Days after the Conversion Date for which such payment is due. Notwithstanding the foregoing, the Company may not pay the Make Whole Payment in Conversion Shares if the Make Whole Shares are not registered on an effective Registration Statement, unless waived in writing by the Holder or (ii) if the issuance of the Make Whole Shares would result in the Holder exceeding the Beneficial Ownership Limitation.