Common use of No Variable Rate Transactions Clause in Contracts

No Variable Rate Transactions. While any principal or interest remains due to the Investor for any Notes the Company has with the Investor, the Company shall not effect or enter into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Shares or any security which entitle the holder to acquire Common Stock (or a combination of units thereof) involving a Variable Rate Transaction, other than involving a Variable Rate Transaction with the Investor or with the prior written consent of the Investor. The Investor shall be entitled to seek injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages, without the necessity of showing economic loss and without any bond or other security being required. “Variable Rate Transaction” shall mean a transaction in which the Company (i) issues or sells any equity or debt securities that are convertible into, exchangeable or exercisable for, or include the right to receive add itional Common Shares either (A) at a conversion price, exercise price, exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the Common Shares at any time after the initial issuance of such equity or debt securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such equity or debt security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Shares (including, without limitation, any “full ratchet” or “weighted average” antidilution provisions, but not including any standard anti-dilution protection for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction), (ii) enters into any agreement, including but not limited to an “equity line of credit” or other continuous offering or similar offering of Common Shares, or (iii) enters into or effects any forward purchase agreement, equity pre-paid forward transaction or other similar offering of securities where the purchaser of securities of the Company receives an upfront or periodic payment of all, or a portion of, the value of the securities so purchased, and the Company receives proceeds from such purchaser based on a price or value that varies with the trading prices of the Common Shares.

No Variable Rate Transactions. While From the date of this Agreement until the Maturity Date (irrespective of any principal or interest remains due to the Investor for any Notes the Company has with the Investorearlier termination of this Agreement), the Company shall not effect be prohibited from effecting or enter entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Shares Stock or any security which entitle the holder to acquire Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction, other than involving a Variable Rate Transaction in connection with the Investor or with the prior written consent of the Investor. The Investor shall be entitled to seek injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages, without the necessity of showing economic loss and without any bond or other security being requiredan Exempt Issuance. “Variable Rate Transaction” shall mean means a transaction in which the Company (i) issues or sells any debt or equity or debt securities that are convertible into, exchangeable or exercisable for, or include the right to receive add itional additional shares of Common Shares Stock or Common Stock Equivalents either (A) at a conversion price, exercise price, price or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the Common Shares Stock at any time after the initial issuance of such debt or equity or debt securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity or debt security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Shares Stock (including, without limitation, any “full ratchet” or “weighted average” antidilution provisions, but not including any standard anti-dilution protection for any reorganization, recapitalization, non-cash dividend, stock split provisions) or other similar transaction), (ii) enters into any agreement, including including, but not limited to to, an “equity line of credit”, “at-the-market offering” or other continuous offering or similar offering of Common SharesStock or Common Stock Equivalents, whereby the Company may sell Common Stock or Common Stock Equivalents at a future determined price. “Exempt Issuance” means the issuance of (iiia) enters into shares of Common Stock or effects any forward purchase agreementoptions to employees, equity pre-paid forward transaction officers, directors or other similar offering of securities where the purchaser of securities vendors of the Company receives an upfront pursuant to any stock or periodic payment option plan duly adopted for such purpose, by the Board of all, Directors or a portion of, the value majority of the members of a committee of directors established for such purpose, (b) securities so purchasedupon the exercise or exchange of or conversion of any Purchase Shares or Commitment Shares issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, (c) securities issued pursuant to acquisitions or strategic transactions approved by the Board of Directors or a majority of the members of a committee of directors established for such purpose, which acquisitions or strategic transactions can have a Variable Rate Transaction component, provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, (d) shares of Common Stock issued and sold by the Company pursuant to an “at-the-market offering” of Common Stock through a registered broker-dealer pursuant to an agreement between the Company and such registered broker-dealer executed after the three (3) month anniversary of the Commencement Date, and (e) the Company receives proceeds from such purchaser based on a price or value that varies with issuance of Common Stock upon the trading prices terms of the Common Shares.promissory note issued to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.

No Variable Rate Transactions. While any principal or interest remains due to For the Investor for any Notes the Company has with the Investorterm of this Agreement, the Company shall not effect be prohibited from effecting or enter entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Shares Stock or any security which entitle the holder to acquire Common Stock Equivalents for cash consideration (or a combination of units thereof) involving a Variable Rate Transaction, other than involving a Variable Rate Transaction in connection with the Investor or with the prior written consent an Exempt Issuance. “Common Stock Equivalents” means any securities of the Investor. The Investor shall be entitled to seek injunctive relief against the Company and or its Subsidiaries which entitle the holder thereof to preclude acquire at any such issuancetime shares of Common Stock, which remedy shall be in addition to any right to collect damagesincluding, without the necessity of showing economic loss and without limitation, any bond debt, preferred stock, rights, options, warrants or other security being requiredinstrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares of Common Stock. “Variable Rate Transaction” shall mean means a transaction in which the Company (i) issues or sells any debt or equity or debt securities that are convertible into, exchangeable or exercisable for, or include the right to receive add itional additional shares of Common Shares Stock either (Ai) at a conversion price, exercise price, price or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Shares Stock at any time after the initial issuance of such debt or equity or debt securities, or (Bii) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity or debt security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Shares Stock (including, without limitation, limitation any “full ratchet” or “weighted average” antidilution provisions, but not including any standard anti-dilution protection for any reorganization, recapitalization, non-cash dividend, stock split or other similar transactionprovisions), . “Exempt Issuance” means the issuance of (iia) enters into any agreement, including but not limited to an “equity line of credit” or other continuous offering or similar offering shares of Common SharesStock or options to employees, officers, directors or (iii) enters into or effects any forward purchase agreement, equity pre-paid forward transaction or other similar offering of securities where the purchaser of securities vendors of the Company receives an upfront pursuant to any stock or periodic payment option plan duly adopted for such purpose, by the Board of all, Directors or a portion of, the value majority of the members of a committee of directors established for such purpose, (b) securities so purchasedupon the exercise or exchange of or conversion of any Purchase Shares issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, and (c) securities issued pursuant to acquisitions or strategic transactions approved by the Board of Directors or a majority of the members of a committee of directors established for such purpose, which acquisitions or strategic transactions can have a Variable Rate Transaction component, provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an asset in a business synergistic with the business of the Company receives proceeds from such purchaser based on and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a price transaction in which the Company is issuing securities primarily for the purpose of raising capital or value that varies with the trading prices of the Common Sharesto an entity whose primary business is investing in securities.

No Variable Rate Transactions. While From and after the date of this Agreement until the later of (i) the thirty-sixth (36) month anniversary of the date of this Agreement and (ii) the thirty-sixth (36) month anniversary of the Commencement Date (if the Commencement has occurred), in any principal or interest remains due to the Investor for case irrespective of any Notes the Company has with the Investorearlier termination of this Agreement, the Company shall not effect be prohibited from effecting or enter entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Shares Stock or any security which entitle the holder to acquire Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction, other than involving a Variable Rate Transaction in connection with the Investor or with the prior written consent of the Investoran Exempt Issuance. The Investor shall be entitled to seek obtain injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages, without the necessity of showing economic loss and without any bond or other security being required. “Common Stock Equivalents” means any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock. “Variable Rate Transaction” shall mean means a transaction in which the Company (i) issues or sells any debt or equity or debt securities that are convertible into, exchangeable or exercisable for, or include the right to receive add itional additional shares of Common Shares Stock or Common Stock Equivalents either (A) at a conversion price, exercise price, exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the Common Shares Stock at any time after the initial issuance of such debt or equity or debt securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such equity or debt security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Shares securities (including, without limitation, pursuant to any “full ratchetcashless exercise” or “weighted average” antidilution provisions, but not including any standard anti-dilution protection for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction), or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock (including, without limitation, any “full ratchet” or “weighted average” anti-dilution provisions), (ii) issues or sells any debt or equity securities, including without limitation, Common Stock or Common Stock Equivalents, either (A) at a price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock (other than standard anti-dilution protection for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction), or (B) that is subject to or contains any put, call, redemption, buy-back, price-reset or other similar provision or mechanism (including, without limitation, a “Black-Scholes” put or call right) that provides for the issuance of additional debt or equity securities of the Company or the payment of cash by the Company, or (iii) enters into any agreement, including including, but not limited to to, an “equity line of creditline”, “at-the-market offering” or other continuous offering or similar offering of Common SharesStock or Common Stock Equivalents, whereby the Company may sell Common Stock or Common Stock Equivalents at a future determined price. “Exempt Issuance” means the issuance of (a) Common Stock or Common Stock Equivalents to employees, officers, directors or vendors of the Company pursuant to any stock or option plan duly adopted for such purpose, by the Board of Directors or a majority of the members of a committee of directors established for such purpose, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder, and/or other securities exercisable or exchangeable for or convertible into Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, (c) securities issued pursuant to acquisitions, divestitures, licenses, partnerships, collaborations or strategic transactions approved by the Board of Directors or a majority of the members of a committee of directors established for such purpose, which acquisitions, divestitures, licenses, partnerships, collaborations or strategic transactions can have a Variable Rate Transaction component, provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, or (iiid) enters into or effects shares of Common Stock issued and sold pursuant to any forward purchase agreement, equity pre“at-paid forward transaction or other similar offering the-market offering” of securities where Common Stock through a registered broker-dealer pursuant to an agreement executed from and after the purchaser date of securities of the Company receives an upfront or periodic payment of all, or a portion of, the value of the securities so purchased, and the Company receives proceeds from such purchaser based on a price or value that varies with the trading prices of the Common Sharesthis Agreement.