Common use of Other Notes; Variable Securities Clause in Contracts

Other Notes; Variable Securities. So long as any Notes remain outstanding, the Company and each Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction (other than an equity line with any Buyer as of the date hereof (or affiliate of any such Buyer)(each, a “Permitted Equity Line”) or an “at-the-market” offering (each, an “ATM”) with a bona-fide registered broker dealer (each, a “Permitted ATM”). “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary (i) issues or sells any Convertible Securities either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such Convertible Securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such Convertible Securities or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock, 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. Notwithstanding the foregoing, by no later than the first Business Day after such date a resale registration statement with respect to a Permitted Equity Line is initially declared effective by the SEC after the date hereof, the Company shall terminate any outstanding ATM and shall not use any ATM at any time the Permitted Equity Line remains outstanding.

Other Notes; Variable Securities. So long as any Notes remain outstandingDuring the Covenant Period, 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 with any Buyer as of the date hereof (or affiliate of any such Buyer)(each, a “Permitted Equity Line”) or an “at-the-market” offering (each, an “ATM”) with a bona-fide registered broker dealer (each, a “Permitted ATM”)Transaction. “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary (i) issues or sells any Convertible Securities either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such Convertible Securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such Convertible Securities or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock, 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); provided, however, that if the Existing ELOC is not available for use, 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 General Instruction I.B.6 to Form S-3, provided that no shares of Common Stock shall be issued pursuant to such offering (1) without the Lead Buyer’s prior written consent, (2) at a price per share less than the Floor Price and (3) in excess of 10% of the trading volume on the date of such issuance and sale (a “Permitted ATM”); provided, further, however, that any issuance of securities pursuant to (i) the Existing ELOC, (ii) conversion of that certain senior secured convertible note issued on February 4, 2025 (the “February Note”), or (iii) conversion of the Series B Preferred Stock, shall not constitute a Variable Rate Transaction. Each Buyer shall be entitled to obtain injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages. Notwithstanding the foregoing, by no later than the first Business Day after such date a resale registration statement with respect to a Permitted Equity Line is initially declared effective by the SEC after the date hereof, the Company shall terminate any outstanding ATM and shall not use any ATM at any time the Permitted Equity Line remains outstanding.

Other Notes; Variable Securities. So long as any Notes remain outstanding, the Company and each Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction (other than an equity line with any Buyer a Permitted ATM (as of the date hereof (or affiliate of any such Buyer)(each, a “Permitted Equity Line”defined below) or an “at-the-market” offering (each, an “ATM”) with a bona-fide registered broker dealer (each, a “Permitted ATM”any Notes issued hereunder). “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary (i) issues or sells any Convertible Securities either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such Convertible Securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such Convertible Securities or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock, 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 (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) (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 the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages. Notwithstanding the foregoing, by no later than the first Business Day after such date a resale registration statement with respect to a Permitted Equity Line is initially declared effective by the SEC after the date hereof, the Company shall terminate any outstanding ATM and shall not use any ATM at any time the Permitted Equity Line remains outstanding.

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 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 with any Buyer as of credit approved by the date hereof Required Holder (or affiliate of any such Buyer)(eachcollectively, 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) or an “at-the-market” offering 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 further, that the Company agrees not to sell any securities pursuant to any Permitted Equity Line during any three (each, an “ATM”3) with Trading Day period immediately following any conversion of a bona-fide registered broker dealer (each, a “Permitted ATM”Note). “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary (i) issues or sells any Convertible Securities either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock 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 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, 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. Notwithstanding the foregoing, by no later than the first Business Day after such date a resale registration statement with respect to a Permitted Equity Line is initially declared effective by the SEC after the date hereof, the Company shall terminate any outstanding ATM and shall not use any ATM at any time the Permitted Equity Line remains outstanding.

Other Notes; Variable Securities. So long as any Notes remain outstandingDuring the Reporting Period, 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 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 equity line with any Buyer as of the date hereof (or affiliate of any such Buyer)(each, a “Permitted Equity Line”) or an “at-the-market” offering (each, an “ATM”) with a bona-fide registered broker dealer investment bank (each, a “Permitted ATM”); or the Company’s 8.00% / 11.00% Convertible Senior PIK Toggle Notes due 2026, as in effect as of the date hereof (the “2026 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 Subsidiary (i) issues or sells any Convertible Securities either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such Convertible Securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such Convertible Securities or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock, 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. Notwithstanding the foregoing, by no later than the first Business Day after such date a resale registration statement with respect to a Permitted Equity Line is initially declared effective by the SEC after the date hereof, the Company shall terminate any outstanding ATM and shall not use any ATM at any time the Permitted Equity Line remains outstanding.

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 Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction (other than pursuant to an equity line with any Buyer as of credit approved by the date hereof Required Holder (or affiliate of any such Buyer)(each, 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 $2.00 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 $1,000,000.00 on any Trading Day in which the Company sells any Ordinary Shares pursuant to any Permitted Equity Line; provided further, 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 or an “at-the-market” offering (each, an “ATM”) with a bona-fide registered broker dealer (each, a “Permitted ATM”the Exchange Note). “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary (i) issues or sells any Convertible Securities either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock 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 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, 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. Notwithstanding the foregoing, by no later than the first Business Day after such date a resale registration statement with respect to a Permitted Equity Line is initially declared effective by the SEC after the date hereof, the Company shall terminate any outstanding ATM and shall not use any ATM at any time the Permitted Equity Line remains outstanding.

Other Notes; Variable Securities. So long as any Notes remain outstandingDuring the one (1) year period following the 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 unless the Buyers consent in writing (other than an equity line with any “Buyer as of the date hereof (or affiliate of any such Buyer)(each, a “Permitted Equity Line”) or an “at-the-market” offering (each, an “ATM”) with a bona-fide registered broker dealer (each, a “Permitted ATMVRT 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 Event of Default (as defined in the Notes), 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 unless the Company or such Subsidiary receives Buyer VRT Consent. “Variable Rate Transaction” means a transaction in which the Company or any 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 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, an any other equity line of credit or an “at-the-market” offering) whereby the Company or 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 the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages. Notwithstanding the foregoing, by no later than the first Business Day after such date a resale registration statement with respect to a Permitted Equity Line is initially declared effective by the SEC after the date hereofFor purposes of this Section 4(n), the Company shall terminate any outstanding ATM and shall not use any ATM “lowest price per share for which one Ordinary Share is at any time issuable upon the Permitted Equity Line remains outstandingconversion, exercise or exchange therefore of otherwise pursuant to the terms thereof” shall 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, exercise or exchange thereof or otherwise thereof.

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 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 than an equity line with any Buyer as disposition of the date hereof (or affiliate any announcement of any such Buyer)(eachissuance, a offer, sale, grant of any option or right to purchase or other disposition of) any equity security, any equity-linked or related security, any “Permitted Equity Line”) equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, any debt, any preferred stock or an “at-the-market” offering (each, an “ATM”) with a bona-fide registered broker dealer (each, a “Permitted ATM”)any purchase rights occurring after the Closing Date. “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary (i) issues or sells any Convertible Securities either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such Convertible Securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such Convertible Securities or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock, 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. Notwithstanding anything to the foregoing, by no later than the first Business Day after such date a resale registration statement with respect to a Permitted Equity Line is initially declared effective by the SEC after the date hereofcontrary in this section, the Company shall terminate any outstanding ATM and shall not use any ATM at any time the Permitted Equity Line remains outstandingmay enter into an equity line of credit with [ ] or its affiliates.

Other Notes; Variable Securities. So long as any Notes remain outstanding, the Company and each Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction (other than an equity line with any Buyer as of the date hereof (or affiliate of any such Buyer)(each, a “Permitted Equity Line”) or an “at-the-market” offering (each, an “ATM”) with a bona-fide registered broker dealer (each, a “Permitted ATM”VRT). “Variable Rate Transaction” means a transaction in which the Company or any 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 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. Notwithstanding “Permitted VRT” means (i) the foregoingsecurities issuable under the equity line of credit pursuant to that certain Share Purchase Agreement, by no later than and between New Circle Principal Investments LLC and the first Business Day after such date a resale registration statement Company, dated as of July 25, 2024, as amended from time to time (the “ELOC”), (ii) the securities issuable under the “at-the-market” offering pursuant to that certain At Market Issuance Sales Agreement by and between A.G.P./Alliance Global Partners and the Company, dated as of September 12, 2024, as amended from time to time, and (iii) any Variable Rate Transaction entered into in connection with respect to a any Permitted Equity Line is initially declared effective by the SEC after the date hereof, the Company shall terminate any outstanding ATM and shall not use any ATM at any time the Permitted Equity Line remains outstandingStrategic Transaction.

Other Notes; Variable Securities. So long as any Notes remain outstandingDuring the Reporting Period, 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 pursuant to the Company’s Amended and Restated Equity Distribution Agreement dated August 4, 2023 with Citigroup Global Markets, Inc. or any amendment thereto, or any similar agreement with an equity line with any Buyer as of the date hereof (or affiliate of any such Buyer)(each, a “Permitted Equity Line”) or an “at-the-market” offering (each, an “ATM”) with a bona-fide registered broker dealer investment bank (each, a “Permitted ATM”); or the Company’s 8.00% / 11.00% Convertible Senior PIK Toggle Notes due 2026, as in effect as of the date hereof (the “2026 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 Subsidiary (i) issues or sells any Convertible Securities either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such Convertible Securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such Convertible Securities or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock, 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. Notwithstanding the foregoing, by no later than the first Business Day after such date a resale registration statement with respect to a Permitted Equity Line is initially declared effective by the SEC after the date hereof, the Company shall terminate any outstanding ATM and shall not use any ATM at any time the Permitted Equity Line remains outstanding.