Common use of Variable Securities Clause in Contracts

Variable Securities. From the date hereof until the earlier of (i) such time as the Buyer no longer holds any of the Warrants and (ii) one (1) year from the date hereof, 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 (A) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional shares of Common Stock either (1) at a conversion price, exercise price 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 debt or equity 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 debt or equity security 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 or (B) enters into any agreement (including, without limitation, an “equity line of credit” or an “at-the-market offering” (as defined in Rule 415(a)(4) under the 1933 Act)) with any Person other than the Buyer whereby the Company or any Subsidiary may sell securities at a future determined price. Notwithstanding the foregoing, beginning on the Trading Day immediately following the last day of the Restricted Period (and in no event during the Restricted Period), the Company may sell shares of Common Stock pursuant to a written equity distribution or sales agreement between the Company and one or more registered broker-dealers providing for an “at- the-market offering” (as defined in Rule 415(a)(4) under the 1000 Xxx) by the Company exclusively through such registered broker-dealer(s) acting primarily as agent(s) of the Company, provided that the per share sales price is equal to or greater than $3.275 per share (as adjusted for stock splits, reverse stock splits, stock dividends and similar events). The 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.

Variable Securities. From the date hereof until the earlier of (i) such time as the Buyer no longer holds any of the Warrants and (ii) one (1) year from the date hereof, 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 (A) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional shares of Common Stock either (1) at a conversion price, exercise price 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 debt or equity 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 debt or equity security 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 or (B) enters into any agreement (including, without limitation, an “equity line of credit” or an “at-the-market offering” (as defined in Rule 415(a)(4) under the 1933 Act)) with any Person other than the Buyer whereby the Company or any Subsidiary may sell securities at a future determined price. Notwithstanding the foregoing, beginning on the Trading Day immediately following the last day of the Restricted Period (and in no event during the Restricted Period), the Company may sell shares of Common Stock pursuant to a written equity distribution or sales agreement between the Company and one or more registered broker-dealers providing for an “at- at-the-market offering” (as defined in Rule 415(a)(4) under the 1000 0000 Xxx) by the Company exclusively through such registered broker-dealer(s) acting primarily as agent(s) of the Company, provided that the per share sales price is equal to or greater than $3.275 [4.091] per share (as adjusted for stock splits, reverse stock splits, stock dividends and similar events). The 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.

Variable Securities. From the date hereof until the earlier of (i) such time as the Buyer no longer holds any of the Warrants and (ii) one (1) year from the date hereof, 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 (A) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional shares of Common Stock either (1) at a conversion price, exercise price 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 debt or equity 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 debt or equity security 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 or (B) enters into any agreement (including, without limitation, an “equity line of credit” or an “at-the-market offering” (as defined in Rule 415(a)(4) under the 1933 Act)) with any Person other than the Buyer whereby the Company or any Subsidiary may sell securities at a future determined price. Notwithstanding the foregoing, beginning on the Trading Day immediately following the last day of the Restricted Period (and in no event during the Restricted Period), the Company may sell shares of Common Stock pursuant to a written equity distribution or sales agreement between the Company and one or more registered broker-dealers providing for an “at- the-market offering” (as defined in Rule 415(a)(4) under the 1000 0000 Xxx) by the Company exclusively through such registered broker-dealer(s) acting primarily as agent(s) of the Company, provided that the per share sales price is equal to or greater than $3.275 per share (as adjusted for stock splits, reverse stock splits, stock dividends and similar events). The 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.