Common use of Other Notes; Variable Securities Clause in Contracts

Other Notes; Variable Securities. So long as any Notes remain outstanding, each of the BC Entities shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction (other than an equity line of credit provided by an investment bank or an “at-the-market” offering). “Variable Rate Transaction” means a transaction in which any BC Entity (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 one or more BC Entities or the market for the Common Stock, other than pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (other than an equity line of credit provided by an investment bank or an “at-the-market” offering) whereby one or more BC Entities may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled to obtain injunctive relief against any BC Entity to preclude any such issuance, which remedy shall be in addition to any right to collect damages. “Subsequent Placement” means any, direct or indirect, issuance, offer, sale, grant of any option or right to purchase, or otherwise dispose of (or announcement of any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) of any BC Entity.

Other Notes; Variable Securities. So long as any Notes remain outstanding, the Company and each of the BC Entities Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement (as defined in the Notes) involving a Variable Rate Transaction (other than an equity line of credit provided by an investment bank or an “at-the-market” offering)Transaction. “Variable Rate Transaction” means a transaction in which the Company or any BC Entity 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 one or more BC Entities the Company or the market for the Common Stock, other than pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (including, without limitation, an equity line of credit (other than an equity line of credit provided by an investment bank with the Series B Purchaser (as defined below) or its affiliates (a “Permitted Equity Line”)) or an “at-the-market” offering) whereby one the Company or more BC Entities any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled to obtain injunctive relief against any BC Entity the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages. “Subsequent Placement” means any, direct or indirect, issuance, offer, sale, grant of any option or right to purchase, or otherwise dispose The restrictions contained in this Section 4(o) shall not apply in connection with the issuance of (or announcement of any issuance, offer, sale, grant of any option or right to purchase or other disposition ofA) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Excluded Securities (as defined belowin the Notes) outstanding as of the date hereof (without regard to any amendment, modification or waiver on or after the date hereof), or (B) securities issued in any debt, any preferred stock or any purchase rightsSubsequent Placement in which 100% of the aggregate Outstanding Amount (as defined in the Notes) of any BC Entitythe Notes is paid in full in accordance with Section 6 of the Notes. As used herein: “Securities B Purchase Agreement” means that certain Securities Purchase Agreement, dated October 11, 2021, by and between the Company and the purchaser set forth therein, and “Series B Purchaser” means the purchaser set forth in the Series B Purchase Agreement.

Other Notes; Variable Securities. So long as any Notes remain outstanding, the Company and each of the BC Entities Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction (other than an equity line of credit provided by an investment bank or an “at-the-market” offering). “Variable Rate Transaction” means a transaction in which any BC Entity (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 one or more BC Entities or the market for the Common Stock, other than pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (other than an equity line of credit provided by an investment bank or an “at-the-market” offering) whereby one or more BC Entities may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled to obtain injunctive relief against any BC Entity to preclude any such issuance, which remedy shall be in addition to any right to collect damages. “Subsequent Placement” means any, direct or indirect, issuance, offer, sale, grant granting of any option or right to purchase, or otherwise dispose other disposal of (or announcement of announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities Common Stock Equivalents (as defined below), any debt, any preferred stock or any purchase rights (any such issuance, offer, sale, grant, disposition or announcement is referred to as a “Subsequent Placement”) involving a Variable Rate Transaction (other than pursuant to the Permitted ATM). “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary (i) issues or sells any Common Stock 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 or quotations for the shares of Common Stock at any time after the initial issuance of such Common Stock Equivalents, 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 Common Stock 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, other than pursuant to a 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) ). 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. “Permitted ATM” means any sale of any BC EntityCommon Stock made under the sales agreement prospectus contained in the Registration Statement covering the offering, issuance and sale by the Company of up to a maximum aggregate offering price of $170,000,000 of Common Stock, that may be issued and sold pursuant to that certain Sales Agreement, dated December 22, 2023, by and among Scilex Holding Company, ▇. ▇▇▇▇▇ Securities Inc., Cantor ▇▇▇▇▇▇▇▇▇▇ & Co. and ▇.

Other Notes; Variable Securities. So long as any Notes remain outstanding, unless otherwise consented in writing by the Required Holders, the Company and each of the BC Entities Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction (other than an equity line of credit provided by an investment bank or an “at-the-market” offering)Transaction. “Variable Rate Transaction” means a transaction in which the Company or any BC Entity Subsidiary (i) issues or sells any Convertible Securities Ordinary Share 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 or quotations for the shares of Common Stock Ordinary Shares at any time after the initial issuance of such Convertible SecuritiesOrdinary Share Equivalents, 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 Ordinary Share Equivalents or upon the occurrence of specified or contingent events directly or indirectly related to the business of one or more BC Entities the Company or the market for the Common StockOrdinary Shares, other than pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (other than including, without limitation, an equity line of credit provided by an investment bank or an “at-the-market” offering) whereby one the Company or more BC Entities any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled to obtain injunctive relief against any BC Entity the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages. “Subsequent Placement” means any, direct or indirect, issuance, offer, sale, grant of any option or right to purchase, or otherwise dispose of (or announcement of any issuance, offer, sale, grant of any option or right to purchase or other disposition of) by the Company and/or any of its Subsidiaries of any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below)Ordinary Share Equivalents, any debt, any preferred stock shares or any purchase rights) of any BC Entity).

Other Notes; Variable Securities. So long Until the later of (x) the Additional Mandatory Closing Expiration Date and (y) such date as any no Notes remain outstanding, the Company and each of the BC Entities Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction (other than an equity line of credit provided by an investment bank or an “at-the-market” offeringa Permitted VRT (as defined below). “Variable Rate Transaction” means a transaction in which the Company or any BC Entity Subsidiary (i) issues or sells any Convertible Securities Common Stock 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 or quotations for the shares of Common Stock at any time after the initial issuance of such Convertible SecuritiesCommon Stock Equivalents, 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 Common Stock Equivalents or upon the occurrence of specified or contingent events directly or indirectly related to the business of one or more BC Entities the Company or the market for the Common Stock, other than pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (other than including, without limitation, an equity line of credit provided by an investment bank or an “at-the-market” offering) whereby one the Company or more BC Entities any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled to obtain injunctive relief against any BC Entity the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages. “Subsequent PlacementPermitted VRT” means any(i) the securities issuable under an “at-the-market” offering existing on the date hereof or entered into the future, direct or indirectincluding, issuancebut not limited to, offerin connection with the filing of a new shelf registration statement on Form S-3, sale, grant of any option or right to purchase, or otherwise dispose of the “Permitted ATM”) and (or announcement of any issuance, offer, sale, grant of any option or right to purchase or other disposition ofii) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under Variable Rate Transaction entered into with the 1933 Act), any Convertible Securities Lead Investor (as defined below). In the event that the Company and the Required Holders amend this Agreement, the Company shall provide written notice of such amendment, including a copy of the amendment and a summary of its material terms, to all other Buyers at or after 4:00 p.m. New York time on the same calendar day such amendment is made, and in no event later than the date immediately prior to the public disclosure of such amendment, whether by the filing of a Current Report on Form 8-K or by any debt, any preferred stock other public announcement or any purchase rights) of any BC Entityfiling by the Company.

Other Notes; Variable Securities. So long as any Notes remain outstanding, the Company and each of the BC Entities Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction Transaction. For the purpose of this Agreement, (i) “Subsequent Placement” means any issuance, offer, sale, grant of any option or right to purchase, or otherwise disposal of (or announcement of any issuance, offer, sale, grant of any option or right to purchase or other than an disposition of) by the Company, directly or indirectly, of any equity line of credit provided by an investment bank security or an any equity-linked or related security (including, without limitation, any “at-the-marketequity security” offering(as that term is defined under Rule 405 promulgated under the 1933 Act). , any Convertible Securities (as defined below), any convertible debt, any preferred stock or any purchase rights); and (ii) “Variable Rate Transaction” means a transaction in which the Company or any BC Entity 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 one or more BC Entities the Company or the market for the Common Stock, other than pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (other than including, without limitation, an equity line of credit provided by an investment bank or an “at-the-market” offering) whereby one the Company or more BC Entities any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled to obtain injunctive relief against any BC Entity the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages. “Subsequent Placement” means any, direct or indirect, issuance, offer, sale, grant of any option or right to purchase, or otherwise dispose of (or announcement of any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) of any BC Entity.

Other Notes; Variable Securities. So long as the Buyer and/or any Notes remain outstandingof its transferees, each affiliates and/or related persons own (beneficially or otherwise) any Securities, neither the Parent, ICA-T or any of the BC Entities Subsidiaries shall be prohibited from effecting or entering issue, sell and/or enter into an agreement to effect any Subsequent Placement involving a sale of Notes and/or any Variable Rate Transaction (other than an equity line of credit provided by an investment bank or an “at-the-market” offering)Transaction. “Variable Rate Transaction” means a transaction in which the Parent, ICA-T or any BC Entity of the Subsidiaries (i) issues or sells any Common Stock Equivalents (as defined in the Notes), Convertible Securities (as defined in the Notes) 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 Parent 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 one or more BC Entities the Parent, ICA-T and/or any Subsidiary or the market for the Parent Common Stock, other than pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (other than including, without limitation, an equity line of credit provided by an investment bank or an “at-the-market” offeringcredit) whereby one or more BC Entities the Parent, ICA-T and the Subsidiaries may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each The Buyer shall be entitled to obtain injunctive relief against the Parent, ICA-T and/or any BC Entity of the Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages. Notwithstanding anything to the contrary provided herein or elsewhere, neither ICA-T nor any other Subsidiary shall directly and/or indirectly issue any capital stock (other than the 100 shares of ICA-T capital stock and the capital stock of each Subsidiary) issued and outstanding as of the date hereof, all of which and all of whose voting stock is owned solely and exclusively by the Parent. Notwithstanding anything to the contrary contained herein, a Variable Rate Transaction shall not include an “Subsequent Placementat the market” means any, direct or indirect, issuance, offer, sale, grant of any option or right to purchase, or otherwise dispose of (or announcement of any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) of any BC Entityoffering.

Other Notes; Variable Securities. So long as any Until the earlier of (i) the first date on which the Notes remain outstanding, each and the Warrants are no longer outstanding and (ii) the eighteen month anniversary of the BC Entities Closing Date, 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 (other than an equity line of credit provided by an investment bank or an “at-the-market” offering)Transaction. “Variable Rate Transaction” means a transaction in which the Company or any BC Entity 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 one or more BC Entities the Company or the market for the Common Stock, other than pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (other than including, without limitation, an equity line of credit provided by an investment bank or an “at-the-market” offering) whereby one the Company or more BC Entities any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled to obtain injunctive relief against any BC Entity the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages. “Subsequent Placement” means any, direct or indirect, issuance, offer, sale, grant The restrictions contained in this Section 4(o) shall not apply in connection with the issuance of any option or right to purchase, or otherwise dispose of (or announcement of any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) of any BC EntityExcluded HOLDER Securities.

Other Notes; Variable Securities. So long as During the Covenant Period, neither the Company nor any Notes remain outstandingof its Subsidiaries shall, each of the BC Entities shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction (other than an equity line of credit provided by an investment bank or an “at-the-market” offering). “Variable Rate Transaction” means a transaction in which any BC Entity (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 one or more BC Entities or the market for the Common Stockindirectly, other than pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (other than an equity line of credit provided by an investment bank or an “at-the-market” offering) whereby one or more BC Entities may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled to obtain injunctive relief against any BC Entity to preclude any such issuance, which remedy shall be in addition to any right to collect damages. “Subsequent Placement” means any, direct or indirect, issuanceissue, offer, salesell, grant of any option or right to purchase, or otherwise dispose of (or announcement of announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act)), any Convertible Securities (as defined below)Ordinary Share Equivalents, any debt, any preferred stock shares or any purchase rights (any such issuance, offer, sale, grant, disposition or announcement, a “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 Ordinary Share 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 or quotations for the Ordinary Shares at any time after the initial issuance of such Ordinary Share Equivalents, 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 Ordinary Share 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 Ordinary Shares, other than pursuant to a 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) of ). Each Buyer shall be entitled to obtain injunctive relief against the Company and its Subsidiaries to preclude any BC Entitysuch issuance, which remedy shall be in addition to any right to collect damages.

Other Notes; Variable Securities. So long Until the later of (1) eighteen (18) months from the Closing Date and (2) such time as any the initial Notes remain are no longer outstanding, the Company and each of the BC Entities Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction (other than excluding sales by the Company of its Common Stock pursuant to an equity line of credit provided by an investment bank or an “at-the-market” offeringmarket offering or that certain Equity Purchase Facility Agreement (the “EPFA”) with Solana Strategic Holdings LLC, dated as of April 30, 2025, and sales are no more than 10% of the trading volume on any given Trading Day). “Variable Rate Transaction” means a transaction in which the Company or any BC Entity 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 one or more BC Entities the Company or the market for the Common Stock, other than pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (including, without limitation, any other than an equity line of credit provided by an investment bank or an “at-the-market” offering) whereby one the Company or more BC Entities any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled to obtain injunctive relief against any BC Entity the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages. “Subsequent Placement” means any, direct or indirect, issuance, offer, sale, grant of any option or right to purchase, or otherwise dispose of (or announcement of any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) of any BC Entity.

Other Notes; Variable Securities. So long Until such time as any no Notes, Incremental Notes or Incremental Warrants remain outstanding, the Company and each of the BC Entities Subsidiary shall be prohibited from effecting or entering into an agreement to effect (x) any Subsequent Placement involving a Variable Rate Transaction and/or (y) any forward purchase agreement of securities of the Company (or any other than an equity line of credit provided by an investment bank or an “at-the-market” offeringsimilar transaction). “Variable Rate Transaction” means a transaction in which the Company or any BC Entity 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 one or more BC Entities the Company or the market for the Common Stock, other than pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (other than including, without limitation, an equity line of credit provided by an investment bank or an “at-the-market” offering) whereby one the Company or more BC Entities any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights); provided, however, that the definition of Variable Rate Transaction shall not include the entry into and/or issuance of shares of Common Stock in an “at the market” offering program made by the Company under an effective registration statement on Form S-3 to issue up to the maximum number of shares permitted by Instruction I.B.6 to such Form, provided that no share of Common Stock shall be issued pursuant to such offering at a price per share less than the Floor Price (as defined in the Notes) (a “Permitted ATM”). Each Buyer shall be entitled to obtain injunctive relief against any BC Entity the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages. “Subsequent Placement” means any, direct or indirect, issuance, offer, sale, grant of any option or right to purchase, or otherwise dispose of (or announcement of any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) of any BC Entity.

Other Notes; Variable Securities. So long as any Notes remain outstanding, the Company and each of the BC Entities Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction (other than an equity line of credit provided by an investment bank a Permitted ATM (as defined below) or an “at-the-market” offeringany Notes issued hereunder). “Variable Rate Transaction” means a transaction in which the Company or any BC Entity 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 one or more BC Entities the Company or the market for the Common Stock, other than pursuant to a customary “weighted average” anti-dilution provision or customary adjustments for stock splits, stock dividends, stock combinations, recapitalizations and similar events or (ii) enters into any agreement (other than including, without limitation, an equity line of credit provided by an investment bank or an “at-the-market” offering) whereby one the Company or more BC Entities any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights) (other than with respect to an “at-the-market” offering occurring both (x) after the thirtieth (30th) calendar day after the Applicable Date and (y) at a price per share of Common Stock greater than the initial Conversion Price (as defined in the Notes) as of the Closing Date (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations and similar events) (a “Permitted ATM”)). Each Buyer shall be entitled to obtain injunctive relief against any BC Entity the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages. “Subsequent Placement” means any, direct or indirect, issuance, offer, sale, grant of any option or right to purchase, or otherwise dispose of (or announcement of any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) of any BC Entity.

Other Notes; Variable Securities. So long as any Notes remain outstanding, the Company and each of the BC Entities Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction (other than an equity line of credit provided by an investment bank pursuant to any Permitted ATM or an “at-the-market” offeringPermitted Equity Line). “Variable Rate Transaction” means a transaction in which the Company or any BC Entity 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 one or more BC Entities the Company or the market for the Common Stock, other than pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (other than including, without limitation, an equity line of credit provided by an investment bank or an “at-the-market” offering) whereby one the Company or more BC Entities any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled to obtain injunctive relief against any BC Entity the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages. “Subsequent PlacementPermitted ATM” means anyany at-the-market offering of Common Stock pursuant to an at-the-market sales agreement or similar agreement, direct or indirectincluding under a registration statement filed with and declared effective by the SEC, issuanceprovided that such offering is conducted in accordance with applicable securities laws. “Permitted Equity Line” means the committed equity financing facility pursuant to that certain Common Stock Purchase Agreement, offerdated as of July 26, sale2024, grant of any option or right to purchaseby and between the Company and Tikkun Capital LLC (as amended, restated, supplemented or otherwise dispose of (or announcement of any issuance, offer, sale, grant of any option or right modified from time to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Acttime), and any Convertible Securities (as defined below)transactions contemplated thereby, any debt, any preferred stock or any purchase rights) including the issuance and sale of any BC Entityshares thereunder.

Other Notes; Variable Securities. So long Until the later of (x) the Additional Closing Expiration Date and (y) such date as any no Notes remain outstanding, the Company and each of the BC Entities Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction (other than an equity line of credit provided by an investment bank or an “at-the-market” offeringa Permitted ATM (as defined below)). “Variable Rate Transaction” means a transaction in which the Company or any BC Entity Subsidiary (i) issues or sells any Convertible Securities Common Stock 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 or quotations for the shares of Common Stock at any time after the initial issuance of such Convertible SecuritiesCommon Stock Equivalents, 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 Common Stock Equivalents or upon the occurrence of specified or contingent events directly or indirectly related to the business of one or more BC Entities the Company or the market for the Common Stock, other than pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (other than including, without limitation, an equity line of credit provided by an investment bank or an “at-the-market” offering) whereby one the Company or more BC Entities any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled to obtain injunctive relief against any BC Entity the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages. “Subsequent PlacementPermitted ATM” means any, direct or indirect, issuance, offer, sale, grant of any option or right to purchase, or otherwise dispose of (or announcement of any issuance, offer, sale, grant of any option or right to purchase or other disposition ofx) any equity security at-the-market facility offerings conducted by the Company pursuant to a certain engagement letter, dated as of September 12, 2024, as amended, by and between H.▇. ▇▇▇▇▇▇▇▇▇▇ & Co., LLC and the Company (the “ATM”) or any equity-linked or related security (includingy) Standby Equity Purchase Agreement, without limitationdated December 14, any “equity security” 2023 (as that term is defined under Rule 405 promulgated under in effect as of the 1933 Actdate hereof), between the Company and YA II PN, Ltd (the “ELOC”); provided, that on any Convertible Securities (given Trading Day, the sales of Common Stock pursuant to such ATM and/or ELOC, as defined below)applicable, any debt, any preferred stock or any purchase rights) may not exceed 20% of any BC Entitythe volume of the Common Stock on such Trading Day.

Other Notes; Variable Securities. So long as any Notes remain outstanding, the Company will not issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Notes. Until each Buyer (together with such Buyer’s affiliates) beneficially owns less than 12.5% of the BC Entities aggregate principal amount of the Notes issued at the Closing (such time, the “Release Time”), 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 (other than an equity line of credit provided by an investment bank or an “at-the-market” offering)Transaction. “Variable Rate Transaction” means a transaction in which the Company or any BC Entity 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 one or more BC Entities the Company or the market for the Common Stock, other than pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (other than including, without limitation, an equity line of credit provided by an investment bank or an “at-the-market” offering) whereby one the Company or more BC Entities any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled to obtain injunctive relief against any BC Entity the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages. “Subsequent Placement” means any, direct or indirect, issuance, offer, sale, grant of any option or right to purchase, or otherwise dispose of (or announcement of any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) of any BC Entity.

Other Notes; Variable Securities. So long as any Notes remain outstandingDuring the one (1) year period following the Closing Date, the Company and each of the BC Entities Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction unless the Buyers consent in writing (other than “Buyer VRT Consent”); provided, that Buyer VRT Consent shall not be required for any Subsequent Placement involving a Variable Rate Transaction in which the Company issues or sells Ordinary Shares and Ordinary Share purchase warrants in a bona fide capital raising transaction; provided further, that notwithstanding anything to the contrary herein, upon an equity line Event of credit provided by Default (as defined in the Notes), the Company and each Subsidiary shall be prohibited from effecting or entering into an investment bank agreement to effect any Subsequent Placement involving a Variable Rate Transaction unless the Company or an “at-the-market” offering)such Subsidiary receives Buyer VRT Consent. “Variable Rate Transaction” means a transaction in which the Company or any BC Entity Subsidiary (i) issues or sells any Convertible Securities Securities, other than Ordinary Share purchase warrants, 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 Ordinary Shares 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 one or more BC Entities the Company or the market for the Common StockOrdinary Shares, other than pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (including, without limitation, any other than an equity line of credit provided by an investment bank or an “at-the-market” offering) whereby one the Company or more BC Entities any Subsidiary may sell securities securities, other than Ordinary Share purchase warrants, at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled to obtain injunctive relief against any BC Entity the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages. For purposes of this Section 4(n), the “Subsequent Placementlowest price per share for which one Ordinary Share is at any time issuable upon the conversion, exercise or exchange therefore of otherwise pursuant to the terms thereof” means anyshall be equal to the lowest conversion price set forth in such Convertible Security for which one Ordinary Share is issuable (or may become issuable assuming all possible market conditions) upon conversion, direct exercise or indirect, issuance, offer, sale, grant of any option or right to purchase, exchange thereof or otherwise dispose of (or announcement of any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) of any BC Entitythereof.

Other Notes; Variable Securities. So long as any Notes remain outstandingFor a period of twelve (12) months following the Closing Date, the Company and each of the BC Entities Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction Transaction. “Subsequent Placement” means any issuance, offer, sale, granting any option or right to purchase, or other disposition of (or any announcement of any issuance, offer, sale, grant of any option or right to purchase or other than an disposition of) any equity line of credit provided by an investment bank security, any equity-linked or an related security, any “at-the-marketequity security” offering(as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, any debt, any preferred stock or any purchase rights occurring after the Closing Date. “Variable Rate Transaction” means a transaction in which the Company or any BC Entity 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 one or more BC Entities the Company or the market for the Common Stock, other than pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (other than including, without limitation, an equity line of credit provided by an investment bank whereby the Company or an “at-the-market” offering) whereby one or more BC Entities any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled to obtain injunctive relief against any BC Entity the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages. “Subsequent Placement” means anyNotwithstanding anything to the contrary in this section, direct the Company may enter into an equity line of credit with [ ] or indirect, issuance, offer, sale, grant of any option or right to purchase, or otherwise dispose of (or announcement of any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) of any BC Entityits affiliates.

Other Notes; Variable Securities. So long as any From the date hereof until the later of (i) the Additional Closing Expiration Date and (ii) the date no Notes remain outstanding, the Company and each of the BC Entities Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction (other than an a Subsequent Placement pursuant to the White Lion Agreement or any other equity line of credit approved by the Required Holder (collectively, each a “Permitted Equity Line"); provided, that the per share purchase price of such Ordinary Shares issued pursuant to any Permitted Equity Line is above $1.00 per share (as adjusted for share splits, share dividends, recapitalization, and similar events) and the daily dollar trading volume of such Permitted Equity Line exceeds $500,000.00 on any Trading Day in which the Company sells any Ordinary Shares pursuant to any Permitted Equity Line; provided by an investment bank or an “at-the-market” offeringfurther, that the Company agrees not to sell any securities pursuant to any Permitted Equity Line during any three (3) Trading Day period immediately following any conversion of a Note). “Variable Rate Transaction” means a transaction in which the Company or any BC Entity 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 Ordinary Shares 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 one or more BC Entities the Company or the market for the Common StockOrdinary Shares, other than pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (other than including, without limitation, an equity line of credit provided by an investment bank or an “at-the-market” offering) whereby one the Company or more BC Entities any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled to obtain injunctive relief against any BC Entity the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages. “Subsequent Placement” means any, direct or indirect, issuance, offer, sale, grant of any option or right to purchase, or otherwise dispose of (or announcement of any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) of any BC Entity.

Other Notes; Variable Securities. So long as any of the Notes remain outstanding, the Company and each of the BC Entities Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction (other than an equity line of credit provided by an investment bank or an “at-the-market” offeringthe Notes issued hereunder). “Variable Rate Transaction” means a transaction in which the Company or any BC Entity 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 one or more BC Entities the Company or the market for the Common Stock, other than pursuant to a customary “weighted average” anti-dilution provision or customary adjustments for stock splits, stock dividends, stock combinations, recapitalizations and similar events or (ii) enters into any agreement (other than including, without limitation, an equity line of credit provided by an investment bank or but excluding an “at-the-market” offeringoffering through an investment bank or broker-dealer that does not exceed 10% of the composite trading volume (as reported on Bloomberg) of the Company’s Common Stock in any day) whereby one the Company or more BC Entities any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled to obtain injunctive relief against any BC Entity the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages. “Subsequent Placement” means any, direct or indirect, issuance, offer, sale, grant of any option or right to purchase, or otherwise dispose of (or announcement of any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) of any BC Entity.

Other Notes; Variable Securities. So long as any Notes remain outstandingDuring the Reporting Period, the Company and each of the BC Entities Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction (other than an equity line of credit provided by pursuant to the Company’s Amended and Restated Equity Distribution Agreement dated August 4, 2023 with Citigroup Global Markets, Inc. or any similar agreement with an investment bank (each, a “Permitted ATM”); or an the Company’s 8.00% / 11.00% Convertible Senior PIK Toggle Notes due 2026, as in effect as of the date hereof (the “at-the-market” offering2026 Notes”)); provided, that the Company agrees not to issue any securities pursuant to any Permitted ATM during the three (3) Trading Day period immediately following any conversion of a Note. “Variable Rate Transaction” means a transaction in which the Company or any BC Entity 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 one or more BC Entities the Company or the market for the Common Stock, other than pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (other than including, without limitation, an equity line of credit provided by an investment bank or an “at-the-market” offering) whereby one the Company or more BC Entities any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled to obtain injunctive relief against any BC Entity the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages. “Subsequent Placement” means any, direct or indirect, issuance, offer, sale, grant of any option or right to purchase, or otherwise dispose of (or announcement of any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) of any BC Entity.

Other Notes; Variable Securities. So long as the Incremental Warrant or any Notes remain outstanding, the Company and each of the BC Entities Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction (other than an equity line without the written consent of credit provided by an investment bank or an “at-the-market” offering)the Buyer in its sole discretion. “Variable Rate Transaction” means a transaction in which the Company or any BC Entity 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 one or more BC Entities the Company or the market for the Common Stock, other than pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (other than including, without limitation, an equity line of credit provided by an investment bank or an “at-the-market” offering) whereby one the Company or more BC Entities any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each The Buyer shall be entitled to obtain injunctive relief against any BC Entity the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages. Notwithstanding anything herein to the contrary this Section 4(m) shall not apply to any issuance of securities pursuant to any Equity Purchase Facility Agreement to be entered into by and between the Company and one of the Buyer’s affiliates (the “Subsequent Placement” means any, direct or indirect, issuance, offer, sale, grant of any option or right to purchase, or otherwise dispose of (or announcement of any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 ActEPFA”), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) of any BC Entity.