Common use of No Variable Rate Transaction Clause in Contracts

No Variable Rate Transaction. Until the date on which the Note is no longer outstanding, the Company and each Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Variable Rate 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 Common 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 Shares (including, without limitation, pursuant to a “weighted average” anti-dilution provision) or (ii) enters into any agreement (including an “equity line of credit”) whereby the Company or any Subsidiary may sell securities at a future determined price (including, without limitation, pursuant to “preemptive” or “participation” rights); provided, however, that a Variable Rate Transaction shall not include (x) sales of Common Shares pursuant to the “at-the-market offering” currently in existence with Maxim Group LLC or (y) unsecured convertible notes issued to existing holders of secured debt, including any bank debt. The Investor 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.

No Variable Rate Transaction. Until the date on which the Note is no longer outstandingoutstanding and except for any such agreements in effect on the Closing Date, the Company and each Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Variable Rate 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 Common 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 Shares (including, without limitation, pursuant to a “weighted average” anti-dilution provision) or (ii) enters into any agreement (including an “equity line of credit”) whereby the Company or any Subsidiary may sell securities at a future determined price (including, without limitation, pursuant to “preemptive” or “participation” rights); provided, however, that a Variable Rate Transaction shall not include (x) sales of Common Shares pursuant to the “at-the-market offering” currently in existence with Maxim Group LLC or (y) unsecured convertible notes issued to existing holders of secured debt, including any bank debt. The Investor 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.