Common use of Variable Rate Transactions Clause in Contracts

Variable Rate Transactions. From the date hereof until such time as no Purchaser holds any of the Warrants, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive, additional shares of Common Stock either (A) at a conversion price, exercise 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 Stock at any time after the initial issuance of such debt or equity 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 security (other than customary anti-dilution events in connection with stock splits, combinations, recapitalizations, reclassifications, dilutive issuances and similar events) 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 or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit (but excluding an “at-the-market” offering; provided that such “at-the-market” offering does not have any securities issuances until the one year anniversary of the Closing Date), whereby the Company may issue securities at a future determined price. Any Purchaser shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages.

Variable Rate Transactions. From the date hereof until such time as no Purchaser holds any of the WarrantsSecurities, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents for cash consideration (or a combination of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive, additional shares of Common Stock either (A) at a conversion price, exercise 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 Stock at any time after the initial issuance of such debt or equity 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 security (other than customary anti-dilution events in connection with stock splits, combinations, recapitalizations, reclassifications, dilutive issuances and similar events) 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 or (ii) enters into, or effects a transaction under, into any agreement, including, but not limited to, an equity line of credit (but excluding an “at-the-market” offering; provided that such “at-the-market” offering does not have any securities issuances until the one year anniversary of the Closing Date)credit, whereby the Company may issue sell securities at a future determined price. Any Purchaser shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages. For the avoidance of doubt, the Purchasers agree that neither the Preferred Stock nor the Warrants constitute a Variable Rate Transaction.

Variable Rate Transactions. From the date hereof until such time as no Purchaser holds any the later of (i) the date the last Note ceases to be outstanding, and (ii) the 12-month anniversary of the Warrantsdate hereof, the Company and each Subsidiary shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of shares of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction. “Common Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time shares of Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument 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” means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive, receive additional shares of Common Stock either (A) at a conversion price, exercise price or exchange rate or other price that is based upon, upon and/or varies with, with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities 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 security (other than customary anti-dilution events in connection with stock splits, combinations, recapitalizations, reclassifications, dilutive issuances and similar events) or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the shares of Common Stock or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit (but excluding an “at-the-market” offering; provided that such “at-the-market” offering does not have any securities issuances until the one year anniversary of the Closing Date)credit, whereby the Company may issue securities at a future determined priceprice regardless of whether shares pursuant to such agreement have actually been issued and regardless of whether such agreement is subsequently canceled. Any Purchaser Buyer shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages.

Variable Rate Transactions. (a) [Reserved]. (b) From the date hereof until such time as the Initial Purchaser no Purchaser longer holds any of the Warrants, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive, additional shares of Common Stock either (A) at a conversion price, exercise 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 Stock at any time after the initial issuance of such debt or equity 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 security (other than customary anti-dilution events in connection with stock splits, combinations, recapitalizations, reclassifications, dilutive issuances and similar events) 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 or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit (but excluding or an “at-the-market” market offering; provided that such “at-the-market” offering does not have any securities issuances until the one year anniversary of the Closing Date)”, whereby the Company may issue securities at a future determined priceprice regardless of whether shares pursuant to such agreement have actually been issued and regardless of whether such agreement is subsequently canceled. Any The Initial Purchaser shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages.

Variable Rate Transactions. From The Company, at any time until the date hereof until such time as no Purchaser holds any one (1) year anniversary of the Warrants, the Company Issuance Date shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive, additional shares of Common Stock either (A) at a conversion price, exercise 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 Stock at any time after the initial issuance of such debt or equity 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 security (other than customary anti-dilution events in connection with stock splits, combinations, recapitalizations, reclassifications, dilutive issuances and similar events) or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the shares of Common Stock or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit (but excluding an “at-the-market” offering; provided that such “at-the-market” offering does not have any securities issuances until the one year anniversary of the Closing Date)credit, whereby the Company may issue securities at a future determined price; provided, however, that, after the 180th day after the Issuance Date, the entry into and/or issuance of shares of Common Stock in an “at the market” offering shall not be deemed a Variable Rate Transaction. Any Purchaser The Holder shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damagesdamages and any adjustments herein.

Variable Rate Transactions. From the date hereof until such time and for so long as no Purchaser holds any of the WarrantsNotes remain outstanding, the Company shall be prohibited from from, other than with a Buyer, effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock Ordinary Shares, Options or Common Stock Equivalents Convertible Securities (or a combination of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company agrees to or enters into an agreement to (i) issues issue or sells sell any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive, receive additional shares of Common Stock Ordinary Shares either (A) at a conversion price, exercise price or exchange rate or other price that is based upon, upon and/or varies with, with the trading prices of or quotations for the shares of Common Stock Ordinary Shares at any time after the initial issuance of such debt or equity securities 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 security (other than customary anti-dilution events in connection with stock splits, combinations, recapitalizations, reclassifications, dilutive issuances and similar events) 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 Ordinary Shares or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit (but excluding an “at-the-market” offering; provided that such “at-the-market” offering does not have any securities issuances until the one year anniversary of the Closing Date)credit, whereby the Company may issue securities at a future determined price. Any Purchaser Buyer shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages. In addition, the Company covenants and agrees that it will not enter into any agreement, undertaking or covenant with a third party that prohibits the Company or its Subsidiaries from entering into, effecting or announcing a Variable Rate Transaction or similar transaction with the Buyers or their Affiliates at any time.

Variable Rate Transactions. From the date hereof until such time and for so long as no Purchaser holds any of the WarrantsDebentures remain outstanding, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company agrees to or enters into an agreement to (i) issues issue or sells sell any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive, receive additional shares of Common Stock either (A) at a conversion price, exercise price or exchange rate or other price that is based upon, upon and/or varies with, with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities 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 security (other than customary anti-dilution events in connection with stock splits, combinations, recapitalizations, reclassifications, dilutive issuances and similar events) 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 or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit (but excluding an “at-the-market” offering; provided that such “at-the-market” offering does not have any securities issuances until the one year anniversary of the Closing Date)credit, whereby the Company may issue securities at a future determined price. Any Purchaser Buyer shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages. Notwithstanding the foregoing, this Section 4.12 shall not apply with respect to the Company’s Sales Agreement with ▇▇▇▇▇ and Company, LLC , pursuant to which the Company may offer and sell from time to time up to $200.0 million of shares, existing as of the date hereof.

Variable Rate Transactions. From the date hereof until such time as no Purchaser holds any of the Warrants, each of Fr8hub and, the Post-Merger Company (commencing as of the closing of the Merger), shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company Post-Merger Company, or any of its Subsidiaries subsidiaries including Fr8hub (after the Merger) of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which Fr8hub or the Post-Merger Company (after the Merger) (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive, additional shares of Common Stock Stock, either (A) at a conversion price, exercise 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 Stock Stock, at any time after the initial issuance of such debt or equity 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 security (other than customary anti-dilution events in connection with stock splits, combinations, recapitalizations, reclassifications, dilutive issuances and similar events) or upon the occurrence of specified or contingent events directly or indirectly related to the business of Fr8hub or the Post-Merger Company (after the Merger) or the market for the Common Stock Stock, or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit (but excluding an “at-the-market” offering; provided that such “at-the-market” offering does not have any securities issuances until the one year anniversary of the Closing Date)credit, whereby Fr8hub or the Post-Merger Company (after the Merger) may issue securities at a future determined price. Any Purchaser shall be entitled to obtain injunctive relief against Fr8hub or the Post-Merger Company (after the Merger) to preclude any such issuance, which remedy shall be in addition to any right to collect damages.

Variable Rate Transactions. From the date hereof until such time as no Purchaser holds any the later of (i) the date the last Note ceases to be outstanding and (ii) the 24-month anniversary of the Warrantsdate hereof, the Company and each Subsidiary shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of shares of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction. “Common Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time shares of Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument 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” means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive, receive additional shares of Common Stock either (A) at a conversion price, exercise price or exchange rate or other price that is based upon, upon and/or varies with, with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities 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 security (other than customary anti-dilution events in connection with stock splits, combinations, recapitalizations, reclassifications, dilutive issuances and similar events) or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the shares of Common Stock or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit (but excluding an “at-the-market” offering; provided that such “at-the-market” offering does not have any securities issuances until the one year anniversary of the Closing Date)credit, whereby the Company may issue securities at a future determined priceprice regardless of whether shares pursuant to such agreement have actually been issued and regardless of whether such agreement is subsequently canceled. Any Purchaser Buyer shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages.

Variable Rate Transactions. From During the date hereof until such time as no Purchaser holds any of the WarrantsReporting Period, the Company and each Subsidiary shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock Ordinary Shares or Common Stock Ordinary Share Equivalents (or a combination of units thereof) involving a Variable Rate Transaction. “Ordinary Share Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Ordinary Shares, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Ordinary Shares. “Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive, receive additional shares of Common Stock Ordinary Shares either (A) at a conversion price, exercise price or exchange rate or other price that is based upon, upon and/or varies with, with the trading prices of or quotations for the shares of Common Stock Ordinary Shares at any time after the initial issuance of such debt or equity securities 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 security (other than customary anti-dilution events in connection with stock splits, combinations, recapitalizations, reclassifications, dilutive issuances and similar events) 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 Ordinary Shares or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit (but excluding an “at-the-market” offering; provided that such “at-the-market” offering does not have any securities issuances until the one year anniversary of the Closing Date)credit, whereby the Company may issue securities at a future determined priceprice regardless of whether shares pursuant to such agreement have actually been issued and regardless of whether such agreement is subsequently canceled, which transaction shall exclude any “at-the-market” offering entered into with a broker-dealer. Any Purchaser Buyer shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages.

Variable Rate Transactions. From the date hereof until such time Effective as no Purchaser holds any of the WarrantsEffective Time, the parties hereto hereby waive Section 4.12(b) of the Securities Purchase Agreement and, in lieu thereof, agree that at any time the New Note remains outstanding (excluding any offering in which the proceeds, in whole in part, is used to repay in full all outstanding obligations under the New Note), the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive, receive additional shares of Common Stock either (A) at a conversion price, exercise price or exchange rate or other price that is based upon, upon and/or varies with, with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities 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 security (other than customary anti-dilution events in connection with stock splits, combinations, recapitalizations, reclassifications, dilutive issuances and similar events) 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 or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit (but excluding an “or at-the-market” offering; provided that such “at-the-market” market offering does not have any securities issuances until the one year anniversary of the Closing Date)program, whereby the Company may issue securities at a future determined price. Any Purchaser The Holder shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages. For the purpose of this Section 10, “Common Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant 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 Transactions. From the date hereof until such time as no Purchaser holds any the six (6) anniversary of the WarrantsFirst Closing Date, without the prior written consent of the Representative, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock Shares or any securities of the Company or its Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock Equivalents Shares (including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Shares (or a combination of units thereof) involving a Variable Rate TransactionTransaction (as defined herein). “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive, receive additional shares of Common Stock Shares either (A) at a conversion price, exercise price or exchange rate or other price that is based upon, upon and/or varies with, with the trading prices of or quotations for the shares of Common Stock Shares at any time after the initial issuance of such debt or equity securities 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 security (other than customary anti-dilution events in connection with stock splits, combinations, recapitalizations, reclassifications, dilutive issuances and similar events) 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 Shares or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit (but excluding an “at-the-market” offering; provided that such “at-the-market” offering does not have any securities issuances until the one year anniversary of the Closing Date)credit, whereby the Company may issue securities at a future determined price. Any Purchaser Notwithstanding the foregoing, after the 30th day following the date of the Prospectus, the Company may enter into and effect sales pursuant to an at–the-market offering facility. The Representative shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages.

Variable Rate Transactions. From the date hereof until such time as no Purchaser holds any the first (1st) anniversary of the WarrantsFirst Closing Date, without the prior written consent of the Representative, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock Shares or any securities of the Company or its Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock Equivalents Shares (including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Shares (or a combination of units thereof) involving a Variable Rate TransactionTransaction (as defined herein). “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive, receive additional shares of Common Stock Shares either (A) at a conversion price, exercise price or exchange rate or other price that is based upon, upon and/or varies with, with the trading prices of or quotations for the shares of Common Stock Shares at any time after the initial issuance of such debt or equity securities 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 security (other than customary anti-dilution events in connection with stock splits, combinations, recapitalizations, reclassifications, dilutive issuances and similar events) 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 Shares or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit (but excluding an “at-the-market” offering; provided that such “at-the-market” offering does not have any securities issuances until the one year anniversary of the Closing Date)credit, whereby the Company may issue securities at a future determined price. Any Purchaser Notwithstanding the foregoing, upon the completion of the restrictive period set forth in Section 3(o), the Company may enter into and effect sales pursuant to an at–the-market offering facility with the Representative. The Representative shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages.

Variable Rate Transactions. From Until the earlier of six (6) months from the date hereof until or such time as that no Purchaser holds any of owns the WarrantsShares, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents for cash consideration (or a combination of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive, receive additional shares of Common Stock either (A) at a conversion price, exercise price or exchange rate or other price that is based upon, upon and/or varies with, with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities 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 security (other than customary anti-dilution events in connection with stock splits, combinations, recapitalizations, reclassifications, dilutive issuances and similar events) 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 or (ii) enters into, or effects a transaction under, into any agreement, including, but not limited to, an equity line of credit (but excluding an “at-the-market” offering; provided that such “at-the-market” offering does not have any securities issuances until the one year anniversary of the Closing Date)credit, whereby the Company may issue sell securities at a future determined price. Notwithstanding the forgoing, (i) the Company has entered into an At-the-Market transaction through a sales agent relating to the offering and sale of the Company’s registered Common Stock and any sales made pursuant thereto shall not constitute a Variable Rate Transaction and (ii) the Company’s currently outstanding securities that are set forth on Schedule 4.12 shall not constitute a Variable Rate Transaction. For purposes of clarity, such transaction shall not constitute a Variable Rate Transaction. Any Purchaser shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages.

Variable Rate Transactions. From the date hereof until such time the Termination Date and so long as no Purchaser holds any at least twenty-five percent (25%) of the WarrantsWarrants remain outstanding, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction. For the purposes hereof, “Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive, additional shares of Common Stock either (A) at a conversion price, exercise 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 Stock at any time after the initial issuance of such debt or equity 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 security (other than customary anti-dilution events in connection with stock splits, combinations, recapitalizations, reclassifications, dilutive issuances and similar events) or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company as currently carried on and as described in the Registration Statement or the market for the Common Stock or (ii) enters into, or effects a transaction under, into any agreement, including, but not limited to, an equity line of credit (but excluding an “at-the-market” offering; provided that such “at-the-market” offering does not have any securities issuances until the one year anniversary of the Closing Date)credit, whereby the Company may issue securities at a future determined priceprice that varies with the market per the terms of such agreement; provided however that the foregoing does not apply to any existing agreements or outstanding securities on the date hereof. Any Purchaser The Holder shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages. Notwithstanding the foregoing, this Section 5(p) will may be amended or waived upon written consent of the holders of at least eighty percent (80%) of the Warrants then outstanding.