Common use of Make Whole Clause in Contracts

Make Whole. If the Conversion Date Closing Price is more than the First Registration Closing Price (as defined below), the Maker shall pay to Payee an amount equal to (i) the total number of Conversion Shares multiplied by (ii) the amount obtained by subtracting (A) the First Registration Closing Price from (B) the Conversion Date Closing Price (the “Make Whole Payment”). The Make Whole Payment shall be paid to Payee, at the sole discretion of Buyer, in: (i) immediately available funds or (ii) the form of additional shares of Iconix Common Stock calculated by dividing the Make Whole Payment by the First Registration Closing Price (the “Additional Shares”); provided, that if Buyer pays the Make Whole Payment in Additional Shares, such Additional Shares shall be registered pursuant to the terms of the Registration Rights Agreement. In the event that all of the Additional Shares have not already been registered for resale pursuant to the Initial Registration Statement at time of delivery, then those Additional Shares which have not been included shall be registered in a subsequent registration statement (the “Subsequent Registration Statement”) in accordance with Section 1(b) of the Registration Rights Agreement (the “Subsequent Registration”). In connection with any such Subsequent Registration, if the product of (A) the Second Registration Closing Price times (B) the number of Additional Shares which were not included in the Initial Registration Statement is less than the amount of (C) the Make Whole Payment, after deducting the amount from the Make Whole Payment, if any, of (1) the value of the Additional Shares which were included in the Initial Registration Statement times (2) the First Registration Closing Price (the amount calculated in this sentence being hereafter referred to as the “Deficiency”). Maker shall pay the Deficiency in immediately available funds to Payee within two days after the Second Valuation Period. As used herein the following terms have the definitions set forth below:

Make Whole. If Until the Conversion Date Closing Price is more than the First Registration Closing Price (as defined below)Make Whole Termination Date, the Maker shall pay to Payee an amount equal to (i) the total number of Conversion Shares multiplied by (ii) the amount obtained by subtracting (A) the First Registration Closing Price from (B) the Conversion Date Closing Price on each Make-Whole Date, any applicable Make-Whole Amount (the “Make Whole PaymentAdditional Obligations”). The Make Whole Payment ) on such Conversion Amount being converted or redeemed, as applicable, shall be paid payable to PayeePurchaser, at the sole discretion of Buyer, in: (i) immediately available funds or (ii) the form of additional in shares of Iconix Common Stock calculated by dividing the Make Make-Whole Payment by the First Registration Closing Price Shares (the “Additional Shares”); providedprovided however, that Sileas may, at its option following written notice to the Purchaser, pay such Additional Obligations on any Make-Whole Date in cash (“Cash Additional Payment”) or in a combination of Cash Additional Payment and Additional Shares. Sileas shall deliver a written notice (each, an “Additional Election Notice”) to Purchaser on or prior to the second (2nd) Trading Day immediately following the applicable Make-Whole Trigger Date (an “Additional Notice Due Date” and the date such notice is delivered to the Purchaser, the “Additional Notice Date”) which notice either (A) confirms that the Additional Obligations to be paid on such Make-Whole Date shall be paid entirely in Additional Shares or (B) elects to pay the Additional Obligations as a Cash Additional Payment or a combination of a Cash Additional Payment and Additional Shares and specifies the amount of Additional Obligations that shall be paid as a Cash Additional Payment and the amount of Additional Obligations, if Buyer pays the Make Whole Payment any, that shall be paid in Additional Shares, such . Additional Obligations to be paid on a Make-Whole Date in Additional Shares shall be registered pursuant paid in a number of fully paid and non-assessable shares (rounded to the terms of the Registration Rights Agreement. In the event that all of the Additional Shares have not already been registered for resale pursuant to the Initial Registration Statement at time of delivery, then those Additional Shares which have not been included shall be registered in a subsequent registration statement (the “Subsequent Registration Statement”) in accordance with Section 1(bnearest whole share) of the Registration Rights Agreement (Company’s Common Stock held by Sileas equal to the “Subsequent Registration”). In connection with any such Subsequent Registration, if the product of (A) the Second Registration Closing Price times (B) the number of Additional Shares which were not included in the Initial Registration Statement is less than the amount of (C) the Make Whole Payment, after deducting the amount from the Make Whole Payment, if any, quotient of (1) the value amount of the Additional Shares which were included in the Initial Registration Statement times Obligations payable on such Make-Whole Date less any related Cash Additional Payment paid on such Make-Whole Date and (2) the First Registration Closing Company Conversion Price in effect on the Make-Whole Date. To the extent such Make Whole Shares to be issued are Conversion Shares, Sileas shall take all action necessary to effect the conversion of its shares of the Company’s Series A Preferred Stock, including obtaining all required opinions of counsel and representation letters, at its own expense, in connection therewith, as soon as possible, but in no event later than one (the amount calculated in this sentence being hereafter referred to as the “Deficiency”). Maker shall pay the Deficiency in immediately available funds to Payee within two days 1) Trading Day after the Second Valuation Period. As used herein the following terms have the definitions set forth below:applicable Make-Whole Date.

Make Whole. If (a) Within 10 days of the Conversion Date Closing Price is more than expiration of any Selling Period or any Make Whole Selling Period, Sellers will notify PEI in writing (the First Registration Closing Price "Sales Proceeds Notice") of the amount of the gross proceeds to the Sellers from the sale of any Eligible Shares (the "Sales Proceeds") during such Selling Period or Make Whole Selling Period, as defined belowthe case may be, and provide any evidence reasonably satisfactory to PEI of such sales. In the event the aggregate value on the date of issuance of the Eligible Shares sold during such Selling Period or Make Whole Selling Period, as the case may be, (the "Aggregate Share Value") exceeds the Sales Proceeds of such Eligible Shares sold during such Selling Period or Make Whole Selling Period, as the case may be, (the "Sales Proceeds Shortfall"), within 10 days of receiving the Maker shall Sales Proceeds Notice and the related evidence of sales and Sales Proceeds, PEI will notify the Sellers of its election to (i) pay to Payee the Sales Proceeds Shortfall in cash, (ii) issue additional PEI Shares (the "Make Whole Shares") in an amount equal to the Sales Proceeds Shortfall in accordance with the procedures set forth in Section 2.5.6(b) below, or (iii) increase the next scheduled payment of consideration pursuant to Section 2.2.2 to the Sellers in an amount equal to the Sales Proceeds Shortfall and interest accruing on the Sales Proceeds Shortfall at the Average Rate for the period from the date of the Sales Proceeds Notice until the commencement of the subsequent Selling Period or Make Whole Selling Period, as the case may be. The parties hereby agree that if PEI elects to increase the next scheduled payment of consideration in accordance with clause (iii) of the preceding sentence, then such increase, if paid in stock, will be subject to all of the terms and conditions set forth in this Section 2.5, including without limitation, the volume limitations and the make-whole provisions set forth herein. If an adjustment in accordance with this Section 2.5.6 (a) is required with respect to the final payment of consideration to the Sellers, such adjustment will be paid in cash by PEI within 30 days of the expiration of the final Selling Period or Make Whole Selling Period, as the case may be. (i) If PEI elects to issue Make Whole Shares pursuant to Section 2.5.6(a) above, PEI will register the total Make Whole Shares as promptly as reasonably practicable. The number of Conversion Make Whole Shares multiplied by to be issued will be determined in accordance with the provisions set forth in Section 2.5.1(c). (ii) For purposes of this Agreement, the amount obtained by subtracting (A) the First Registration Closing Price from (B) the Conversion Date Closing Price (the “term "Make Whole Payment”). The Make Whole Payment shall be paid Selling Period" will mean the period beginning the date the registration statement with respect to Payee, at the sole discretion of Buyer, in: (i) immediately available funds or (ii) the form of additional shares of Iconix Common Stock calculated by dividing the Make Whole Payment by Shares is first declared effective and ending on the First Registration Closing Price (the “Additional Shares”); provided, that if Buyer pays the Make Whole Payment in Additional Shares, such Additional Shares shall be registered pursuant to the terms of the Registration Rights Agreement. In the event that all of the Additional Shares have not already been registered for resale pursuant to the Initial Registration Statement at time of delivery, then those Additional Shares which have not been included shall be registered in a subsequent registration statement (the “Subsequent Registration Statement”) in accordance with Section 1(b) of the Registration Rights Agreement (the “Subsequent Registration”). In connection with any such Subsequent Registration, if the product earlier of (A) the Second Registration Closing Price times date that is 30 days thereafter, as extended pursuant to this Section 2.5.6(b) and (B) the number of Additional Shares which were not included in the Initial Registration Statement is less than the amount of (C) the date all Make Whole Payment, after deducting the amount from the Shares with respect to such Make Whole Payment, if any, of (1) the value of the Additional Shares which were included in the Initial Registration Statement times (2) the First Registration Closing Price (the amount calculated in this sentence being hereafter referred to as the “Deficiency”). Maker shall pay the Deficiency in immediately available funds to Payee within two days after the Second Valuation Period. As used herein the following terms Selling Period will have the definitions set forth below:been sold.