Common use of Variable Rate Transaction Clause in Contracts

Variable Rate Transaction. Until the earlier to occur of (x) the first day immediately following the eighteen (18) month anniversary of the Closing Date and (y) the date on which none of the Warrants are outstanding, the Company and each Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary (i) issues or sells any Convertible Securities either (A) at a conversion, exercise 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 Stock at any time after the initial issuance of such Convertible 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 Convertible Securities 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, provided that the parties acknowledge that Convertible Securities that contain provisions substantially similar to, or that are less favorable to the holder thereof than, the provisions set forth in Sections 2(b) and 2(c) of the Warrants shall not be deemed to be a Variable Rate Transaction or (ii) enters into any agreement (including, without limitation, an “equity line of credit”) whereby the Company or any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights and other than an “at-the-market offering”). Each Buyer shall be entitled to 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.

Variable Rate Transaction. Until From the earlier to occur of (x) date hereof until 18 months after the first day immediately following the eighteen (18) month anniversary Effective Date of the Closing Date and (yinitial Shelf Registration Statement required to be filed by the Company pursuant to Section 2(a) the date on which none of the Warrants are outstandingRegistration Rights Agreement which covers all of the securities required to be covered thereunder, the Company and each Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction. “Variable Rate Transaction” means shall mean a transaction in which the Company directly or any Subsidiary indirectly (i) issues or sells any Convertible Securities Equivalents either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of, of or quotations for, for the shares of Common Stock at any time after the initial issuance of such Convertible SecuritiesEquivalents, 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 Convertible Securities Equivalents 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, provided that the parties acknowledge that Convertible Securities that contain provisions substantially similar to, or that are less favorable other than pursuant to the holder thereof than, the provisions set forth in Sections 2(b) and 2(c) of the Warrants shall not be deemed to be a Variable Rate Transaction customary “weighted average” anti-dilution provision or (ii) enters into any agreement (including, without limitationbut not limited to, an “equity line of credit”) whereby the Company or any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights and other than an “at-the-market offering”rights). Each Buyer The Investor shall be entitled to 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. Notwithstanding the foregoing, the Company may effect a Subsequent Placement involving a Variable Rate Transaction with the prior written consent of the holders of at least 70% in interest of the shares of Common Stock issued or sold in connection with the Offering on the Closing Date (it being understood and agreed for clarification purposes that if such consent is obtained then such Subsequent Placement shall be subject to Section 5.10 below).

Variable Rate Transaction. Until the earlier to occur of (x) the first day immediately following the eighteen (18) month anniversary of the Closing Date and (y) the date on which none of the Warrants are outstanding, the Company and each Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary (i) issues or sells any Convertible Securities either (A) at a conversion, exercise 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 Stock at any time after the initial issuance of such Convertible 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 Convertible Securities 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, provided that the parties acknowledge that Convertible Securities that contain provisions substantially similar to, or that are less favorable other than pursuant to the holder thereof than, the provisions set forth in Sections 2(b) and 2(c) of the Warrants shall not be deemed to be a Variable Rate Transaction customary “weighted average” anti-dilution provision or (ii) enters into any agreement (including, without limitation, an “equity line of credit” or an “at-the-market offering”) whereby the Company or any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights and other than an “at-the-market offering”rights). Each Buyer shall be entitled to 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. Notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that no securities issued pursuant to, in connection with or with respect to any Variable Rate Transaction shall constitute Excluded Securities.