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, 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 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 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.

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 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 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 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 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 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 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” offeringtransactions pursuant to a Permitted VRT (as defined below), the Permitted ATM and the Permitted ELOC). “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 anyany Variable Rate Transaction entered into with [*] or any of its affiliates. “Permitted ATM” means At the Market Offering Agreement, direct or indirectdated as of August 30, issuance2024, offerby and between the Company and H.▇. ▇▇▇▇▇▇▇▇▇▇ & Co., sale, grant of any option or right to purchaseLLC, or otherwise dispose a replacement facility with a bona fide investment bank as authorized by the Buyers, which authorization shall not be unreasonably withheld. “Permitted ELOC” means the Purchase Agreement, dated as of August 30, 2024 by and between the Company and Lincoln Park Capital Fund, LLC or a replacement facility on commercially reasonable/market standard terms as authorized by the Buyers, which authorization shall not be unreasonably withheld. Notwithstanding the foregoing, prior to the earlier of (or announcement a) the 180-day anniversary of any issuancethe Closing and (b) the closing of the Permitted Project Financing, offerthe Company may offer and sell through the each of the Permitted ATM and Permitted ELOC up to $3 million of shares of Common Stock; provided, salethat, grant such issuance shall be limited to $1.5 million 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 shares of Common Stock if the price per share issued is defined under Rule 405 promulgated under below the 1933 Act), any Convertible Securities Conversion Price (as defined below)in the Notes) then in effect; provided further, any debtthat, any preferred stock or any purchase rights) there are no restrictions on the Company’s use of any BC Entitythe Permitted ATM and Permitted ELOC at a price per share above $1.20.