Common use of Other Notes; Variable Securities Clause in Contracts

Other Notes; Variable Securities. For so long as any Notes remain outstanding, (i) 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 and (ii) the Company and each Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary (x) issues or sells any Convertible Securities either (1) 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 (2) 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 (y) 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. For the avoidance of doubt, the issuance of a security which is subject to customary anti-dilution protections, including where the conversion, exercise or exchange price is subject to adjustment as a result of stock splits, reverse stock splits and other similar recapitalization or reclassification events, shall not be deemed to be a Variable Rate Transaction.

Other Notes; Variable Securities. For so long Until such time as any no Notes, Incremental Notes or Incremental Warrants remain outstanding, (i) 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 and (ii) the Company and each Subsidiary shall be prohibited from effecting or entering into an agreement to effect (x) any Subsequent Placement involving a Variable Rate TransactionTransaction and/or (y) any forward purchase agreement of securities of the Company (or any other similar transaction). “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary (xi) issues or sells any Convertible Securities either (1A) 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 (2B) 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 (yii) 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 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 the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages. For the avoidance of doubt, the issuance of a security which is subject to customary anti-dilution protections, including where the conversion, exercise or exchange price is subject to adjustment as a result of stock splits, reverse stock splits and other similar recapitalization or reclassification events, shall not be deemed to be a Variable Rate Transaction.

Other Notes; Variable Securities. For so So long as any Notes remain outstanding, (i) 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 aggregate principal amount of the Notes and issued at the Closing (ii) 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. “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary (xi) issues or sells any Convertible Securities either (1A) 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 (2B) 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 (yii) 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. For the avoidance of doubt, the issuance of a security which is subject to customary anti-dilution protections, including where the conversion, exercise or exchange price is subject to adjustment as a result of stock splits, reverse stock splits and other similar recapitalization or reclassification events, shall not be deemed to be a Variable Rate Transaction.

Other Notes; Variable Securities. For so long as any Commencing on the date hereof and until no Notes remain outstanding, (i) 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 and (ii) SPAC, the Company and each Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate TransactionTransaction (other than an equity line of credit with 3i, LP or any of its affiliates and the Permitted SAFE Offering) (each, a “Permitted Equity Line”). “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary (xi) issues or sells any Convertible Securities either (1A) 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 (2B) 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 SPAC, the Company or the market for the Common StockOrdinary Shares, other than pursuant to a customary “weighted average” anti-dilution provision or (yii) enters into any agreement (including, without limitation, an equity line of credit or an “at-the-market” offering) whereby the SPAC, 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 SPAC and the Company and its Subsidiaries Subsidiaries, as applicable, to preclude any such issuance, which remedy shall be in addition to any right to collect damages. For the avoidance of doubt, the issuance of a security which is subject to customary anti-dilution protections, including where the conversion, exercise or exchange price is subject to adjustment as a result of stock splits, reverse stock splits and other similar recapitalization or reclassification events, shall not be deemed to be a Variable Rate Transaction.

Other Notes; Variable Securities. For so So long as any Notes remain outstanding, (i) 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 and (ii) the Company and each Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate TransactionTransaction (other than transactions 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 Subsidiary (xi) issues or sells any Convertible Securities Common Stock Equivalents either (1A) 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 (2B) 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 (yii) 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. For “Permitted VRT” means any Variable Rate Transaction entered into with [*] or any of its affiliates. “Permitted ATM” means At the avoidance Market Offering Agreement, dated as of doubtAugust 30, 2024, by and between the issuance of Company and H.▇. ▇▇▇▇▇▇▇▇▇▇ & Co., LLC, or a security replacement facility with a bona fide investment bank as authorized by the Buyers, which is subject to customary anti-dilution protections, including where the conversion, exercise or exchange price is subject to adjustment as a result of stock splits, reverse stock splits and other similar recapitalization or reclassification events, authorization shall not be deemed 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 (a) the 180-day anniversary of the Closing and (b) the closing of the Permitted Project Financing, the 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, that, such issuance shall be limited to $1.5 million of shares of Common Stock if the price per share issued is below the Conversion Price (as defined in the Notes) then in effect; provided further, that, there are no restrictions on the Company’s use of the Permitted ATM and Permitted ELOC at a Variable Rate Transactionprice per share above $1.00.