Common use of Other Notes; Variable Securities Clause in Contracts

Other Notes; Variable Securities. So long as any of the 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 the 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 but excluding an “at-the-market” offering 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 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.

Other Notes; Variable Securities. So long as any Notes remain outstanding (except with the written consent of the Notes remain outstandingRequired Holders), 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 (i) the Notes issued hereunderWestwood Equity Line (as defined in the Notes), the Permitted Equity Line (as defined in the Notes), (ii) Variable Rate Transactions which are Affiliate Transactions (as defined in the Notes) and/or Strategic Investments (as defined in the Notes) whereby the Company issues or sells or may issue or sell any Ordinary Share Equivalents at a frequency of no more than once every 180-calendar days (collectively, the “Permitted Affiliate-Strategic VRTs”), and (iii) any other Variable Rate Transactions that convert only at a fixed maturity date at a price determined at such fixed maturity date of such Ordinary Share Equivalents with respect thereto. “Subsequent Placement” means any direct or indirect issuance, offer, sale, grant of any option or right to purchase or other disposition (or announcement of any option or right to purchase or any disposition of) any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Ordinary Share Equivalents (as defined below), any debt, any preferred shares or any purchase rights) of the Company. “Variable Rate Transaction” means a transaction in which the Company or any 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 ADSs 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 the Company or the market for the Common StockADSs, 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 but excluding or an “at-the-market” offering 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 dayoffering) 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.

Other Notes; Variable Securities. So long Until the later of (x) the Additional Mandatory Closing Expiration Date and (y) such date as any of the 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 the Notes issued hereundera Permitted VRT (as defined below). “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 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 but excluding or an “at-the-market” offering 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 dayoffering) 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 VRT” means (i) the securities issuable under an “at-the-market” offering existing on the date hereof or entered into the future, including, but not limited to, in connection with the filing of a new shelf registration statement on Form S-3, the “Permitted ATM”) and (ii) any Variable Rate Transaction entered into with the 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 other public announcement or filing by the Company.