Common use of No Variable Rate Transactions Clause in Contracts

No Variable Rate Transactions. From the date hereof until the Maturity Date, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of shares of Common Stock or Common Stock Equivalents for cash consideration (or a combination of units thereof) involving a Variable Rate Transaction, provided that the Company shall be permitted to effect an Exempt Issuance. “Common Stock Equivalents” means any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time shares of Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares of Common Stock. “Variable Rate Transaction” means a transaction in which the Company enters into, or issues securities under, any “at-the-market” or similar agreement, including, but not limited to, an equity line of credit (other than any transaction between the Company and the Investor), whereby the Company may sell securities at a future determined price. “Exempt Issuance” means only the following: (i) the issuance of shares of Common Stock under the “at-the market” agreement in effect as of the date hereof, as it may be amended from time to time, with a third party registered broker-dealer so long as, for the ninety (90) day period following the date hereof, no issuances under any such agreement aggregate in excess of $2.0 million worth of Common Stock during any consecutive twenty (20) Business Day period; and (ii) the issuance of Common Stock Equivalents with conversion or exercise prices which may adjust (or where the amount of Common Stock Equivalents issuable may adjust) based upon future events (including, without limitation, in instances involving the issuance of securities for a purchase price which is less than any such conversion or exercise price prior to adjustment).

No Variable Rate Transactions. From the date hereof of this Agreement until the Maturity Date, the Company shall be prohibited from (i) effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of shares of Common Stock or Common Stock Equivalents for cash consideration (or a combination of units thereof) involving a Variable Rate Transaction, provided that the Company shall be permitted to effect other than in connection with an Exempt Issuance, and (ii) effecting or entering into an agreement to effect any “equity line of credit”, “at-the-market offering” or other continuous offering or similar offering of Common Stock or Common Stock Equivalents, whereby the Company may sell Common Stock or Common Stock Equivalents at a future determined price. “Common Stock Equivalents” means any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time shares of Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares of Common Stock. “Variable Rate Transaction” means a transaction in which the Company enters issues or sells any debt or equity securities that are convertible into, exchangeable or issues securities underexercisable for, or include the right to receive additional shares of Common Stock either (i) 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 (ii) 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 (including, without limitation any “at-the-marketfull ratchet” or similar agreement, including, but not limited to, an equity line of credit (other than any transaction between the Company and the Investor“weighted average” anti-dilution provisions), whereby the Company may sell securities at a future determined price. “Exempt Issuance” means only the following: (i) the issuance of (a) shares of Common Stock under the “at-the market” agreement in effect as or options to employees, officers, directors or vendors of the date hereofCompany pursuant to any stock or option plan duly adopted for such purpose, as it may be amended from time to timeby the Board of Directors or a majority of the members of a committee of directors established for such purpose, with a third party registered broker-dealer so long as, (b) securities upon the exercise or exchange of or conversion of any Purchase Shares or Commitment Shares issued hereunder and/or other securities exercisable or exchangeable for the ninety (90) day period following the date hereof, no issuances under any such agreement aggregate in excess of $2.0 million worth or convertible into shares of Common Stock during any consecutive twenty (20) Business Day period; issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, and (iic) securities issued pursuant to acquisitions or strategic transactions approved by the Board of Directors or a majority of the members of a committee of directors established for such purpose, which acquisitions or strategic transactions can have a Variable Rate Transaction component, provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities. The parties hereto acknowledge and agree that none of the provisions of this Section 5(i)(I) shall apply to any Change-in-Control, and this Section 5(i)(I) shall automatically terminate upon a Change-in-Control. For purposes of this Section 5(i)(I), a “Change-in-Control” means any one or more of the following, in which the Person or Persons effecting the change-in-control transaction is, itself or through its subsidiaries, an operating company or an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds and is not a Person or Persons whose primary business is investing in securities: (1) the issuance Company shall, directly or indirectly, in one or more related transactions, (A) consolidate or merge with or into (whether or not the Company is the surviving corporation) another Person, with the result that the holders of the Company’s capital stock immediately prior to such consolidation or merger together beneficially own less than 50% of the outstanding voting power of the surviving or resulting corporation, or (B) sell, lease, license, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company to another Person, or (C) take action to facilitate a purchase, tender or exchange offer by another Person that is accepted by the holders of more than 50% of the outstanding shares of Common Stock Equivalents with conversion or exercise prices which may adjust (or where the amount not including any shares of Common Stock Equivalents issuable may adjustheld by the Person or Persons making or party to, or associated or affiliated with the Persons making or party to, such purchase, tender or exchange offer), or (D) based upon future events consummate a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than 50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination), or (2) any “person” or “group” (as these terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act) is or shall become the “beneficial owner” (as defined in instances involving Rule 13d-3 under the issuance Exchange Act), directly or indirectly, of securities for a purchase price which is less than any such conversion 50% or exercise price prior to adjustment)more of the aggregate ordinary voting power represented by issued and outstanding Common Stock.

No Variable Rate Transactions. From the date hereof of this Agreement until the earlier of the Maturity DateDate or the date of termination of this Agreement, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of shares of Common Stock or Common Stock Equivalents for cash consideration (or a combination of units thereof) for cash consideration involving a Variable Rate Transaction, provided that the Company shall be permitted to effect other than in connection with an Exempt Issuance. “Common Stock Equivalents” means any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time shares of Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares of Common Stock. “Variable Rate Transaction” means a transaction in which the Company enters (i) issues or sells any debt or equity securities that are convertible into, exchangeable or issues securities underexercisable for, or include the right to receive additional shares of Common Stock or Common Stock Equivalents either (A) 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 Common Stock at any time after the initial issuance of such debt or equity 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 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 (including, without limitation, any “at-the-marketfull ratchet” or similar “weighted average” anti-dilution provisions) or (ii) enters into any agreement, including, but not limited to, an “equity line of credit (credit,” “at-the-market offering” or other than any transaction between the Company and the Investor)continuous offering or similar offering of Common Stock or Common Stock Equivalents, whereby the Company may sell securities Common Stock or Common Stock Equivalents at a future determined price. “Exempt Issuance” means only the following: (i) the issuance of (a) shares of Common Stock under the “at-the market” agreement in effect as or options to employees, officers, directors, consultants or vendors of the date hereofCompany pursuant to any stock or option plan duly adopted for such purpose, as it may be amended from time to timeby the Board of Directors or a majority of the members of a committee of directors established for such purpose, with a third party registered broker-dealer so long as, (b) securities upon the exercise or exchange of or conversion of any Purchase Shares issued hereunder and/or other securities exercisable or exchangeable for the ninety (90) day period following the date hereof, no issuances under any such agreement aggregate in excess of $2.0 million worth or convertible into shares of Common Stock during issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, (c) securities issued pursuant to acquisitions or strategic transactions approved by the Board of Directors or a majority of the members of a committee of directors established for such purpose, which acquisitions or strategic transactions can have a Variable Rate Transaction component, provided that any consecutive twenty such issuance shall only be to a Person (20or to the equity holders of a Person) Business Day period; which is, itself or through its subsidiaries, an operating company or an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, and (iid) with the issuance Investor’s prior written consent, which shall not be unreasonably withheld, warrants issued as part of Common Stock Equivalents with conversion or exercise prices which may adjust (or where the amount of Common Stock Equivalents issuable may adjust) based upon future events (including, without limitation, in instances involving the issuance units of securities for issued by the Company in a purchase price which is less than any such conversion or firm-commitment underwritten public offering that contain customary “weighted-average” exercise price anti-dilution provisions (it being hereby acknowledged and agreed that this Agreement shall not be deemed to constitute the Investor’s prior to adjustmentwritten consent thereto).

No Variable Rate Transactions. From and after the date hereof of this Agreement until the Maturity Datelater of (i) the thirty-sixth (36) month anniversary of the date of this Agreement and (ii) the thirty-sixth (36) month anniversary of the Commencement Date (if the Commencement has occurred), in any case irrespective of any earlier termination of this Agreement, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of shares of Common Stock or Common Stock Equivalents for cash consideration (or a combination of units thereof) involving a Variable Rate Transaction, provided that the Company shall be permitted to effect other than in connection with an Exempt Issuance. 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, without the necessity of showing economic loss and without any bond or other security being required. “Common Stock Equivalents” means any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time shares of Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares of Common Stock. “Variable Rate Transaction” means a transaction in which the Company enters (i) issues or sells any debt or equity securities that are convertible into, exchangeable or issues exercisable for, or include the right to receive additional shares of Common Stock or Common Stock Equivalents either (A) at a conversion price, exercise price, exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the Common Stock at any time after the initial issuance of such debt or equity securities under(including, without limitation, pursuant to any “cashless exercise” provisions, but not including any standard anti-dilution protection for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction), 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 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 (including, without limitation, any “at-the-marketfull ratchet” or “weighted average” anti-dilution provisions), (ii) issues or sells any debt or equity securities, including without limitation, Common Stock or Common Stock Equivalents, either (A) at a 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 (other than standard anti-dilution protection for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction), or (B) that is subject to or contains any put, call, redemption, buy-back, price-reset or other similar provision or mechanism (including, without limitation, a “Black-Scholes” put or call right) that provides for the issuance of additional debt or equity securities of the Company or the payment of cash by the Company, or (iii) enters into any agreement, including, but not limited to, an “equity line line”, “at-the-market offering” or other continuous offering or similar offering of credit (other than any transaction between the Company and the Investor)Common Stock or Common Stock Equivalents, whereby the Company may sell securities Common Stock or Common Stock Equivalents at a future determined price. “Exempt Issuance” means only the following: (i) the issuance of (a) Common Stock or Common Stock Equivalents to employees, officers, directors or vendors of the Company pursuant to any stock or option plan duly adopted for such purpose, by the Board of Directors or a majority of the members of a committee of directors established for such purpose, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder, and/or other securities exercisable or exchangeable for or convertible into Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, (c) securities issued pursuant to acquisitions, divestitures, licenses, partnerships, collaborations or strategic transactions approved by the Board of Directors or a majority of the members of a committee of directors established for such purpose, which acquisitions, divestitures, licenses, partnerships, collaborations or strategic transactions can have a Variable Rate Transaction component, provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, or (d) shares of Common Stock under the issued and sold pursuant to any “at-the marketthe-market offering” agreement in effect as of the date hereof, as it may be amended from time to time, with Common Stock through a third party registered broker-dealer so long as, for the ninety (90) day period following pursuant to an agreement executed from and after the date hereof, no issuances under any such agreement aggregate in excess of $2.0 million worth of Common Stock during any consecutive twenty (20) Business Day period; and (ii) the issuance of Common Stock Equivalents with conversion or exercise prices which may adjust (or where the amount of Common Stock Equivalents issuable may adjust) based upon future events (including, without limitation, in instances involving the issuance of securities for a purchase price which is less than any such conversion or exercise price prior to adjustment)this Agreement.

No Variable Rate Transactions. From the date hereof of this Agreement until the Maturity DateDate (irrespective of any earlier termination of this Agreement), the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of shares of Common Stock or Common Stock Equivalents for cash consideration (or a combination of units thereof) involving a Variable Rate Transaction, provided that the Company shall be permitted to effect other than in connection with an Exempt Issuance. “Common Stock Equivalents” means any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time shares of Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares of Common Stock. “Variable Rate Transaction” means a transaction in which the Company enters (i) issues or sells any debt or equity securities that are convertible into, exchangeable or issues securities underexercisable for, or include the right to receive additional shares of Common Stock or Common Stock Equivalents either (A) 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 Common Stock at any time after the initial issuance of such debt or equity 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 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 (including, without limitation, any “at-the-marketfull ratchet” or similar “weighted average” anti-dilution provisions) or (ii) enters into any agreement, including, but not limited to, an “equity line of credit (credit”, “at-the-market offering” or other than any transaction between the Company and the Investor)continuous offering or similar offering of Common Stock or Common Stock Equivalents, whereby the Company may sell securities Common Stock or Common Stock Equivalents at a future determined price. “Exempt Issuance” means only the following: (i) the issuance of (a) shares of Common Stock under or options to employees, officers, directors or vendors of the Company pursuant to any stock or option plan duly adopted for such purpose, by the Board of Directors or a majority of the members of a committee of directors established for such purpose, (b) securities upon the exercise or exchange of or conversion of any Purchase Shares or Commitment Shares issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, (c) securities issued pursuant to acquisitions or strategic transactions approved by the Board of Directors or a majority of the members of a committee of directors established for such purpose, which acquisitions or strategic transactions can have a Variable Rate Transaction component, provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, (d) shares of Common Stock issued and sold by the Company pursuant to an “at-the marketthe-market offering” agreement in effect as of the date hereof, as it may be amended from time to time, with Common Stock through a third party registered broker-dealer so long aspursuant to an agreement between the Company and such registered broker-dealer executed after the three (3) month anniversary of the Commencement Date, for the ninety (90) day period following the date hereof, no issuances under any such agreement aggregate in excess of $2.0 million worth of Common Stock during any consecutive twenty (20) Business Day period; and (iie) the issuance of Common Stock Equivalents with conversion or exercise prices which may adjust (or where upon the amount terms of Common Stock Equivalents issuable may adjust) based upon future events (including, without limitation, in instances involving the issuance of securities for a purchase price which is less than any such conversion or exercise price prior promissory note issued to adjustment).Xxxxxxx Xxxxx & Co.

No Variable Rate Transactions. From the date hereof until the Maturity first (1st) anniversary of the Closing Date, without the prior written consent of Xxxxxxxxxx, which consent may be withheld in Xxxxxxxxxx’x sole discretion, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries subsidiaries of shares of Common Stock Ordinary Shares or Common Stock Equivalents for cash consideration (ADSs or a combination of units thereof) involving a Variable Rate Transaction, provided that the Company shall be permitted to effect an Exempt Issuance. “Common Stock Equivalents” means any securities of the Company or its Subsidiaries subsidiaries which would entitle the holder thereof to acquire at any time shares of Common Stock, any Ordinary Shares or ADSs (including, without limitation, any debt, preferred stock, rightsright, optionsoption, warrants warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares Ordinary Shares or ADSs (or a combination of Common Stockunits thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional Ordinary Shares or ADSs either (A) 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 Ordinary Shares or ADSs at any time after the initial issuance of such debt or equity 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 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 Ordinary Shares or ADSs or (ii) enters into, or issues securities effects a transaction under, any “at-the-market” or similar agreement, including, but not limited to, an equity line of credit (other than any transaction between the Company and the Investor)credit, whereby the Company may sell issue securities at a future determined price. “Exempt Issuance” means only ; provided, however, the following: Company may effect sales pursuant to an at–the-market offering facility with Xxxxxxxxxx (i) the issuance of shares of Common Stock under the “at-the market” agreement in effect as of the date hereof, as it may be amended amendment from time to time, with a third party registered broker-dealer so long as, for ). Xxxxxxxxxx shall be entitled to obtain injunctive relief against the ninety (90) day period following the date hereof, no issuances under Company to preclude any such agreement aggregate issuance, which remedy shall be in excess of $2.0 million worth of Common Stock during addition to any consecutive twenty (20) Business Day period; and (ii) the issuance of Common Stock Equivalents with conversion or exercise prices which may adjust (or where the amount of Common Stock Equivalents issuable may adjust) based upon future events (including, without limitation, in instances involving the issuance of securities for a purchase price which is less than any such conversion or exercise price prior right to adjustment)collect damages.

No Variable Rate Transactions. From and after the date hereof of this Agreement until the Maturity Datelater of (i) the 36-month anniversary of the date of this Agreement and (ii) the 36-month anniversary of the Commencement Date (if the Commencement has occurred), in any case irrespective of any earlier termination of this Agreement, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of shares of Common Stock or Common Stock Equivalents for cash consideration (or a combination of units thereof) involving a Variable Rate Transaction, provided that the Company shall be permitted to effect other than in connection with an Exempt Issuance. The Investor shall be entitled to seek 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, without the necessity of showing economic loss and without any bond or other security being required. “Common Stock Equivalents” means any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time shares of Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares of Common Stock. “Variable Rate Transaction” means a transaction in which the Company enters (i) issues or sells any debt or equity securities that are convertible into, exchangeable or issues exercisable for, or include the right to receive additional shares of Common Stock or Common Stock Equivalents either (A) at a conversion price, exercise price, exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the Common Stock at any time after the initial issuance of such debt or equity securities under(including, without limitation, pursuant to any “cashless exercise” provisions, but not including any standard anti-dilution protection for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction), provision, 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 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 (including, without limitation, any “at-the-marketfull ratchet” or “weighted average” anti-dilution provisions), (ii) issues or sells any debt or equity securities, including without limitation, Common Stock or Common Stock Equivalents, either (A) at a 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 (other than standard anti-dilution protection for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction), or (B) that is subject to or contains any put, call, redemption, buy-back, price-reset or other similar provision or mechanism (including, without limitation, a “Black-Scholes” put or call right) that provides for the issuance of additional debt securities of the Company or the payment of cash by the Company, or (iii) enters into any agreement, including, but not limited to, an “equity line line” that is not an Exempt Issuance or other continuous offering or similar offering of credit (other than any transaction between the Company and the Investor)Common Stock or Common Stock Equivalents, whereby the Company may sell securities Common Stock or Common Stock Equivalents at a future determined price. “Exempt Issuance” means only the following: (i) the issuance of (a) Common Stock or Common Stock Equivalents to employees, officers, directors or vendors of the Company pursuant to any stock or option plan duly adopted for such purpose, by the Board of Directors or a majority of the members of a committee of directors established for such purpose, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder, and/or other securities exercisable or exchangeable for or convertible into Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, (c) securities issued pursuant to acquisitions, divestitures, licenses, partnerships, collaborations or strategic transactions approved by the Board of Directors or a majority of the members of a committee of directors established for such purpose, which acquisitions, divestitures, licenses, partnerships, collaborations or strategic transactions can have a Variable Rate Transaction component, provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, (d) Common Stock Equivalents that are convertible into, exchangeable or exercisable for, or include the right to receive shares of Common Stock under at a conversion price, exercise price, exchange rate or other price (which may be below the then current market price of the Common Stock) that is fixed at the time of initial issuance of such Common Stock Equivalents (subject only to standard anti-dilution protection for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction), which fixed conversion price, exercise price, exchange rate or other price shall not at any time after the initial issuance of such Common Stock Equivalent be based upon or varying with the trading prices of or quotations for the Common Stock or subject to being reset at some future date, or (e) shares of Common Stock issued and sold pursuant to any “at-the marketthe-market offering” agreement in effect as of the date hereof, as it may be amended from time to time, with Common Stock through a third party registered broker-dealer so long as, for the ninety (90) day period following pursuant to an agreement executed from and after the date hereof, no issuances under any such agreement aggregate in excess of $2.0 million worth of Common Stock during any consecutive twenty (20) Business Day period; and (ii) the issuance of Common Stock Equivalents with conversion or exercise prices which may adjust (or where the amount of Common Stock Equivalents issuable may adjust) based upon future events (including, without limitation, in instances involving the issuance of securities for a purchase price which is less than any such conversion or exercise price prior to adjustment)this Agreement.

No Variable Rate Transactions. From the date hereof until the Maturity Date, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of shares of Common Stock or Common Stock Equivalents for cash consideration (or a combination of units thereof) involving a Variable Rate Transaction, provided that the Company shall be permitted to effect an Exempt Issuance. “Common Stock Equivalents” means any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time shares of Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares of Common Stock. “Variable Rate Transaction” means a transaction in which the Company enters into, or issues securities under, any “at-the-market” or similar agreement, including, but not limited to, an equity line of credit (other than any transaction between the Company and the Investor), whereby the Company may sell securities at a future determined price. “Exempt Issuance” means only the following: (i) the issuance of shares of Common Stock under the “at-the market” agreement in effect as of the date hereof or within 60 days of the date hereof, as it may be amended from time to time, with a third party registered broker-dealer so long as, for the ninety 150 (90150) day period following the date hereof, no issuances under any such agreement aggregate in excess of $2.0 1.5 million worth of Common Stock during any consecutive twenty thirty (2030) Business Day period; and (ii) the issuance of Common Stock Equivalents with conversion or exercise prices which may adjust (or where the amount of Common Stock Equivalents issuable may adjust) based upon future events (including, without limitation, in instances involving the issuance of securities for a purchase price which is less than any such conversion or exercise price prior to adjustment).

No Variable Rate Transactions. From and after the date hereof of this Agreement until the Maturity Date24-month anniversary of the date of this Agreement (irrespective of any earlier termination of this Agreement), the Company shall be prohibited from effecting or entering into an agreement to effect effect, at any time during which the Investor beneficially owns more than 50,000 shares of Common Stock (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder), any issuance by the Company or any of its Subsidiaries of shares of Common Stock or Common Stock Equivalents for cash consideration (or a combination of units thereof) involving a Variable Rate Transaction, provided that the Company shall be permitted to effect other than in connection with an Exempt Issuance. The Investor shall be entitled to obtain injunctive relief as provided in Section 12(m) against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages, without the necessity of showing economic loss and without any bond or other security being required. “Common Stock Equivalents” means any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time shares of Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares of Common Stock. “Variable Rate Transaction” means a transaction in which the Company enters into, or issues securities under, any “at-the-market” or similar agreement, including, but not limited to, an equity line of credit (other than any transaction between the Company and the Investor), whereby the Company may sell securities at a future determined price. “Exempt Issuance” means only the following: (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the issuance of right to receive additional shares of Common Stock under the “at-the market” agreement in effect as of the date hereof, as it may be amended from time to time, with a third party registered broker-dealer so long as, for the ninety (90) day period following the date hereof, no issuances under any such agreement aggregate in excess of $2.0 million worth of Common Stock during any consecutive twenty (20) Business Day period; and (ii) the issuance of or Common Stock Equivalents either (A) at a conversion price, exercise price, exchange rate or other price that is based upon and/or varies with conversion the trading prices of or exercise prices which may adjust (or where quotations for the amount of Common Stock Equivalents issuable may adjustat any time after the initial issuance of such debt or equity securities, or (B) based 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 future the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock (including, without limitation, in instances involving any “full-ratchet” anti-dilution provisions, but excluding any “weighted average” anti-dilution provisions or any “cashless” or “net” exercise provisions), (ii) issues or sells any debt or equity securities, including without limitation, Common Stock or Common Stock Equivalents, either (A) at a 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) that is subject to or contains any put, call, redemption, buy-back, price-reset or other similar provision or mechanism (including, without limitation, a “Black-Scholes” put or call right) that provides for the issuance of additional debt or equity securities for a purchase price which is less than any such conversion of the Company or exercise price prior to adjustment).the payment

No Variable Rate Transactions. From the date hereof of this Agreement until the Maturity DateDate (irrespective of any earlier termination of this Agreement), the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of shares of Common Stock or Common Stock Equivalents for cash consideration (or a combination of units thereof) for cash consideration involving a Variable Rate Transaction, provided that the Company shall be permitted to effect other than in connection with an Exempt Issuance. “Common Stock Equivalents” means any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time shares of Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares of Common Stock. “Variable Rate Transaction” means a transaction in which the Company enters (i) issues or sells any debt or equity securities that are convertible into, exchangeable or issues securities underexercisable for, or include the right to receive additional shares of Common Stock or Common Stock Equivalents either (A) 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 Common Stock at any time after the initial issuance of such debt or equity 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 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 (including, without limitation, any “at-the-marketfull ratchet” or similar “weighted average” anti-dilution provisions) or (ii) enters into any agreement, including, but not limited to, an “equity line of credit (credit”, “at-the-market offering” or other than any transaction between the Company and the Investor)continuous offering or similar offering of Common Stock or Common Stock Equivalents, whereby the Company may sell securities Common Stock or Common Stock Equivalents at a future determined price. “Exempt Issuance” means the issuance of (a) shares of Common Stock or options to employees, officers, directors or vendors of the Company pursuant to any stock or option plan duly adopted for such purpose, by the Board of Directors or a majority of the members of a committee of directors established for such purpose, (b) securities upon the exercise or exchange of or conversion of any Purchase Shares or Commitment Shares issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, (c) securities issued pursuant to acquisitions or strategic transactions approved by the Board of Directors or a majority of the members of a committee of directors established for such purpose, which acquisitions or strategic transactions can have a Variable Rate Transaction component, provided that any such issuance shall only be to a Person (or to the following: equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, (id) shares of Common Stock issued pursuant to (1) the issuance At Market Issuance Sales Agreement, dated May 24, 2013, between the Company and MLV& Co. LLC or (2) the At Market Issuance Sales Agreement, dated May 24, 2013, between the Company and Maxim Group LLC, provided that such agreements have not been amended since the date of this Agreement to increase the number of shares of Common Stock under the “at-the market” agreement in effect as of the date hereof, as it that may be amended from time issuable pursuant thereto or to timeextend the term thereof, with a third party registered broker-dealer so long as, for the ninety (90) day period following the date hereof, no issuances under any such agreement aggregate in excess of $2.0 million worth of Common Stock during any consecutive twenty (20) Business Day period; and (iie) with the issuance Investor’s prior written consent, which shall not be unreasonably withheld, warrants issued as part of Common Stock Equivalents with conversion or exercise prices which may adjust (or where the amount of Common Stock Equivalents issuable may adjust) based upon future events (including, without limitation, in instances involving the issuance units of securities for issued by the Company in a purchase price which is less than any such conversion or firm-commitment underwritten public offering that contain customary “weighted-average” exercise price anti-dilution provisions (it being hereby acknowledged and agreed that this Agreement shall not be deemed to constitute the Investor’s prior to adjustmentwritten consent thereto).

No Variable Rate Transactions. From and after the date hereof of this Agreement until the Maturity Dateearlier of (i) the 36-month anniversary of the date of this Agreement (irrespective of any earlier termination of this Agreement), (ii) the date on which the Company shall have received the full Available Amount pursuant to this Agreement, and (iii) in the event of early termination of this Agreement, the date on which the Investor shall have sold all the Securities acquired by the Investor hereunder, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of shares of Common Stock or Common Stock Equivalents for cash consideration (or a combination of units thereof) involving a Variable Rate Transaction, provided that the Company shall be permitted to effect other than in connection with an Exempt Issuance. 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, without the necessity of showing economic loss and without any bond or other security being required. “Common Stock Equivalents” means any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time shares of Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares of Common Stock. “Variable Rate Transaction” means a transaction in which the Company enters (i) issues or sells any debt or equity securities that are convertible into, exchangeable or issues exercisable for, or include the right to receive additional shares of Common Stock or Common Stock Equivalents either (A) at a conversion price, exercise price, exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the Common Stock at any time after the initial issuance of such debt or equity securities under(including, without limitation, pursuant to any “cashless exercise” provision), 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 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 (including, without limitation, any “at-the-marketfull ratchet” or “weighted average” anti-dilution provisions), (ii) issues or sells any debt or equity securities, including without limitation, Common Stock or Common Stock Equivalents, either (A) at a 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) that is subject to or contains any put, call, redemption, buy-back, price-reset or other similar provision or mechanism (including, without limitation, a “Black-Scholes” put or call right) that provides for the issuance of additional debt or equity securities of the Company or the payment of cash by the Company, or (iii) enters into any agreement, including, but not limited to, an “equity line of credit (credit”, “at-the-market offering” or other than any transaction between the Company and the Investor)continuous offering or similar offering of Common Stock or Common Stock Equivalents, whereby the Company may sell securities Common Stock or Common Stock Equivalents at a future determined price. “Exempt Issuance” means only the following: (i) the issuance of (a) Common Stock or options to employees, officers, directors or vendors of the Company pursuant to any stock or option plan duly adopted for such purpose, by the Board of Directors or a majority of the members of a committee of directors established for such purpose, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable or exchangeable for or convertible into Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, (c) securities issued pursuant to acquisitions or strategic transactions approved by the Board of Directors or a majority of the members of a committee of directors established for such purpose, which acquisitions or strategic transactions can have a Variable Rate Transaction component, provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, or (d) shares of Common Stock under issued and sold pursuant to (1) the Controlled Equity Offering Sales Agreement, dated February 9, 2016, by and between the Company and Cantor Xxxxxxxxxx & Co. and (2) any other “at-the marketthe-market offering” agreement in effect as of the date hereof, as it may be amended from time to time, with Common Stock through a third party registered broker-dealer so long as, for the ninety (90) day period following pursuant to an agreement executed from and after the date hereof, no issuances under any such agreement aggregate in excess of $2.0 million worth of Common Stock during any consecutive twenty (20) Business Day period; and (ii) the issuance of Common Stock Equivalents with conversion or exercise prices which may adjust (or where the amount of Common Stock Equivalents issuable may adjust) based upon future events (including, without limitation, in instances involving the issuance of securities for a purchase price which is less than any such conversion or exercise price prior to adjustment)this Agreement.

No Variable Rate Transactions. From the date hereof until the Maturity first (1st) anniversary of the Closing Date, without the prior written consent of Xxxxxxxxxx, which consent may be withheld in Xxxxxxxxxx’x sole discretion, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries subsidiaries of shares of Common Stock Ordinary Shares or Common Stock Equivalents for cash consideration (or a combination of units thereof) involving a Variable Rate Transaction, provided that the Company shall be permitted to effect an Exempt Issuance. “Common Stock Equivalents” means any securities of the Company or its Subsidiaries subsidiaries which would entitle the holder thereof to acquire at any time shares of Common Stock, any Ordinary Shares (including, without limitation, any debt, preferred stock, rightsright, optionsoption, warrants warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares Ordinary Shares (or a combination of Common Stockunits thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional Ordinary Shares either (A) 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 Ordinary Shares at any time after the initial issuance of such debt or equity 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 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 Ordinary Shares or (ii) enters into, or issues securities effects a transaction under, any “at-the-market” or similar agreement, including, but not limited to, an equity line of credit (other than any transaction between the Company and the Investor)credit, whereby the Company may sell issue securities at a future determined price. “Exempt Issuance” means only ; provided, however, the following: (i) the issuance of shares of Common Stock under the “Company may effect sales pursuant to an at-the market” agreement in effect the-market offering facility with Xxxxxxxxxx (as of the date hereof, as it may be amended from time to time, with a third party registered broker-dealer so long as, for ). Xxxxxxxxxx shall be entitled to obtain injunctive relief against the ninety (90) day period following the date hereof, no issuances under Company to preclude any such agreement aggregate issuance, which remedy shall be in excess of $2.0 million worth of Common Stock during addition to any consecutive twenty (20) Business Day period; and (ii) the issuance of Common Stock Equivalents with conversion or exercise prices which may adjust (or where the amount of Common Stock Equivalents issuable may adjust) based upon future events (including, without limitation, in instances involving the issuance of securities for a purchase price which is less than any such conversion or exercise price prior right to adjustment)collect damages.

No Variable Rate Transactions. From and after the date hereof of this Agreement until the Maturity Date24-month anniversary of the date of this Agreement (irrespective of any earlier termination of this Agreement), the Company shall be prohibited from effecting or entering into an agreement to effect effect, at any time during which the Investor beneficially owns more than 50,000 shares of Common Stock (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder), any issuance by the Company or any of its Subsidiaries of shares of Common Stock or Common Stock Equivalents for cash consideration (or a combination of units thereof) involving a Variable Rate Transaction, provided that the Company shall be permitted to effect other than in connection with an Exempt Issuance. The Investor shall be entitled to obtain injunctive relief as provided in Section 12(m) against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages, without the necessity of showing economic loss and without any bond or other security being required. “Common Stock Equivalents” means any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time shares of Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares of Common Stock. “Variable Rate Transaction” means a transaction in which the Company enters into, or issues securities under, any “at-the-market” or similar agreement, including, but not limited to, an equity line of credit (other than any transaction between the Company and the Investor), whereby the Company may sell securities at a future determined price. “Exempt Issuance” means only the following: (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the issuance of right to receive additional shares of Common Stock under the “at-the market” agreement in effect as of the date hereof, as it may be amended from time to time, with a third party registered broker-dealer so long as, for the ninety (90) day period following the date hereof, no issuances under any such agreement aggregate in excess of $2.0 million worth of Common Stock during any consecutive twenty (20) Business Day period; and (ii) the issuance of or Common Stock Equivalents either (A) at a conversion price, exercise price, exchange rate or other price that is based upon and/or varies with conversion the trading prices of or exercise prices which may adjust (or where quotations for the amount of Common Stock Equivalents issuable may adjustat any time after the initial issuance of such debt or equity securities, or (B) based 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 future the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock (including, without limitation, in instances involving any “full-ratchet” anti-dilution provisions, but excluding any “weighted average” anti-dilution provisions or any “cashless” or “net” exercise provisions), (ii) issues or sells any debt or equity securities, including without limitation, Common Stock or Common Stock Equivalents, either (A) at a price that is subject to being reset at some future date after the initial issuance of securities for a purchase price which is less than any such conversion debt or exercise price prior equity security or upon the occurrence of specified or contingent events directly or indirectly related to adjustment).the business of the Company or the market

No Variable Rate Transactions. From and after the date hereof of this Agreement until the Maturity Date30-month anniversary of the date of this Agreement, irrespective of any earlier termination of this Agreement, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of shares of Common Stock or Common Stock Equivalents for cash consideration (or a combination of units thereof) involving a Variable Rate Transaction, provided that the Company shall be permitted to effect other than in connection with an Exempt Issuance. 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, without the necessity of showing economic loss and without any bond or other security being required. “Common Stock Equivalents” means any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time shares of Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares of Common Stock. “Variable Rate Transaction” means a transaction in which the Company enters (i) issues or sells any debt or equity securities that are convertible into, exchangeable or issues exercisable for, or include the right to receive additional shares of Common Stock or Common Stock Equivalents either (A) at a conversion price, exercise price, exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the Common Stock at any time after the initial issuance of such debt or equity securities under(including, without limitation, pursuant to any “cashless exercise” provision), 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 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 (including, without limitation, any “at-the-marketfull ratchet” or “weighted average” anti-dilution provisions), (ii) issues or sells any debt or equity securities, including without limitation, Common Stock or Common Stock Equivalents, either (A) at a 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) that is subject to or contains any put, call, redemption, buy-back, price-reset or other similar provision or mechanism (including, without limitation, a “Black-Scholes” put or call right) that provides for the issuance of additional debt or equity securities of the Company or the payment of cash by the Company, or (iii) enters into any agreement, including, but not limited to, an “equity line of credit (credit”, “at-the-market offering” or other than any transaction between the Company and the Investor)continuous offering or similar offering of Common Stock or Common Stock Equivalents, whereby the Company may sell securities Common Stock or Common Stock Equivalents at a future determined price. “Exempt Issuance” means only the following: (i) the issuance of shares (a) Common Stock or options to employees, officers, directors or vendors of the Company pursuant to any stock or option plan duly adopted for such purpose, by the Board of Directors or a majority of the members of a committee of directors established for such purpose, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or Common Stock Equivalents issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, (c) securities issued pursuant to acquisitions or strategic transactions approved by the Board of Directors or a majority of the members of a committee of directors established for such purpose, which acquisitions or strategic transactions can have a Variable Rate Transaction component, provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, or (d) Common Stock issued and sold pursuant to an “at-the-market offering” of Common Stock under the “at-the market” agreement in effect as of the date hereof, as it may be amended from time to time, with through a third party registered broker-dealer so long as, for the ninety (90) day period following the date hereof, no issuances under any such agreement aggregate in excess of $2.0 million worth of Common Stock during any consecutive twenty (20) Business Day period; and (ii) the issuance of Common Stock Equivalents with conversion or exercise prices which may adjust (or where the amount of Common Stock Equivalents issuable may adjust) based upon future events (including, without limitation, in instances involving the issuance of securities for a purchase price which is less than any such conversion or exercise price prior to adjustment)dealer.

No Variable Rate Transactions. From the date hereof of this Agreement until the Maturity DateDate (irrespective of any earlier termination of this Agreement), the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of shares of Common Stock or Common Stock Equivalents for cash consideration (or a combination of units thereof) involving a Variable Rate Transaction, provided that the Company shall be permitted to effect other than in connection with an Exempt Issuance. “Common Stock Equivalents” means any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time shares of Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares of Common Stock. “Variable Rate Transaction” means a transaction in which the Company enters (i) issues or sells any debt or equity securities that are convertible into, exchangeable or issues securities underexercisable for, or include the right to receive additional shares of Common Stock or Common Stock Equivalents either (A) 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 Common Stock at any time after the initial issuance of such debt or equity 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 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 (including, without limitation, any “at-the-marketfull ratchet” or similar “weighted average” anti-dilution provisions) or (ii) enters into any agreement, including, but not limited to, an “equity line of credit (credit”, “at-the-market offering” or other than any transaction between the Company and the Investor)continuous offering or similar offering of Common Stock or Common Stock Equivalents, whereby the Company may sell securities Common Stock or Common Stock Equivalents at a future determined price. “Exempt Issuance” means only the following: (i) the issuance of (a) shares of Common Stock or options to employees, officers, directors or vendors of the Company pursuant to any stock or option plan duly adopted for such purpose, by the Board of Directors or a majority of the members of a committee of directors established for such purpose, (b) securities upon the exercise or exchange of or conversion of any Purchase Shares or Commitment Shares issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, (c) securities issued pursuant to acquisitions or strategic transactions approved by the Board of Directors or a majority of the members of a committee of directors established for such purpose, which acquisitions or strategic transactions can have a Variable Rate Transaction component, provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, (d) shares of Common Stock issued and sold pursuant to the At-The-Market Equity Offering Sales Agreement, dated March 13, 2015, between the Company and Guggenheim Securities, LLC, having an aggregate offering price not to exceed $25,000,000, provided that such agreement shall not be amended to increase the number of shares of Common Stock under the “at-the market” agreement in effect as of the date hereof, as it that may be amended from time issuable pursuant thereto or to timeextend the term thereof, with a third party registered broker-dealer so long as, for the ninety and (90e) day period following the date hereof, no issuances under any such agreement aggregate in excess of $2.0 million worth shares of Common Stock during issued pursuant to provisions contained in convertible instruments, the conversion price of which is fixed at issuance, providing for (i) adjustments to the conversion price as a result of any consecutive twenty (20) Business Day period; and stock split of the Common Stock, stock dividend issued to all holders of Common Stock on a pro-rata basis or similar transaction or (ii) a change of control of the issuance of Common Stock Equivalents with conversion or exercise prices which may adjust (or where the amount of Common Stock Equivalents issuable may adjust) based upon future events (including, without limitation, in instances involving the issuance of securities for a purchase price which is less than any such conversion or exercise price prior to adjustment)Company.

No Variable Rate Transactions. From and after the date hereof of this Agreement until the Maturity Dateearlier of (i) the 36-month anniversary of the date of this Agreement, (ii) 6 months following the date on which the Company shall have received the full Available Amount pursuant to this Agreement and (iii) in the event of early termination of this Agreement, the date on which the Investor shall have sold all of the Securities acquired by the Investor hereunder, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of shares of Common Stock or Common Stock Equivalents for cash consideration (or a combination of units thereof) involving a Variable Rate Transaction, provided that the Company shall be permitted to effect other than in connection with an Exempt Issuance. 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, without the necessity of showing economic loss and without any bond or other security being required. “Common Stock Equivalents” means any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time shares of Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares of Common Stock. “Variable Rate Transaction” means a transaction in which the Company enters (i) issues or sells any debt or equity securities that are convertible into, exchangeable or issues exercisable for, or include the right to receive additional shares of Common Stock or Common Stock Equivalents either (A) at a conversion price, exercise price, exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the Common Stock at any time after the initial issuance of such debt or equity securities under(including, without limitation, pursuant to any “cashless exercise” provision), 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 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 (including, without limitation, any “at-the-marketfull ratchet” or “weighted average” anti-dilution provisions), (ii) issues or sells any debt or equity securities, including without limitation, Common Stock or Common Stock Equivalents, either (A) at a 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) that is subject to or contains any put, call, redemption, buy-back, price-reset or other similar provision or mechanism (including, without limitation, a “Black-Scholes” put or call right) that provides for the issuance of additional debt or equity securities of the Company or the payment of cash by the Company, or (iii) enters into any agreement, including, but not limited to, an “equity line of credit (credit”, “at-the-market offering” or other than any transaction between the Company and the Investor)continuous offering or similar offering of Common Stock or Common Stock Equivalents, whereby the Company may sell securities Common Stock or Common Stock Equivalents at a future determined price. “Exempt Issuance” means only the following: (i) the issuance of (a) Common Stock, restricted stock units or options to employees, officers, directors or vendors of the Company pursuant to any stock or option plan duly adopted for such purpose, by the Board of Directors or a majority of the members of a committee of directors established for such purpose, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder, and/or of or for any Securities issued and outstanding on the date of this Agreement, provided that such securities have not been amended following the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection with a reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction), (c) securities issued pursuant to acquisitions or strategic transactions approved by the Board of Directors or a majority of the members of a committee of directors established for such purpose, which acquisitions or strategic transactions can have a Variable Rate Transaction component, provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, or (d) shares of Common Stock under issued and sold pursuant to (1) the Controlled Equity OfferingSM Sales Agreement, dated August 12, 2019, by and between the Company and Cantor Xxxxxxxxxx & Co. and (2) any other “at-the marketthe-market offering” agreement in effect as of the date hereof, as it may be amended from time to time, with Common Stock through a third party registered broker-dealer so long as, for the ninety (90) day period following pursuant to an agreement executed from and after the date hereof, no issuances under any such agreement aggregate in excess of $2.0 million worth of Common Stock during any consecutive twenty (20) Business Day period; and (ii) the issuance of Common Stock Equivalents with conversion or exercise prices which may adjust (or where the amount of Common Stock Equivalents issuable may adjust) based upon future events (including, without limitation, in instances involving the issuance of securities for a purchase price which is less than any such conversion or exercise price prior to adjustment)this Agreement.

No Variable Rate Transactions. From and after the date hereof of this Agreement until the earlier of (i) the Maturity DateDate and (ii) the six (6) month anniversary of the effective date of termination of this Agreement by the Company pursuant to Section 11(c) or by the Investor pursuant to Section 11(b), the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of shares of Common Stock or Common Stock Equivalents for cash consideration (or a combination of units thereof) involving a Variable Rate Transaction, provided that the Company shall be permitted to effect other than in connection with an Exempt Issuance. 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, without the necessity of showing economic loss and without any bond or other security being required. “Common Stock Equivalents” means any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time shares of Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares of Common Stock. “Variable Rate Transaction” means a transaction in which the Company enters (i) issues or sells any debt or equity securities that are convertible into, exchangeable or issues exercisable for, or include the right to receive additional shares of Common Stock or Common Stock Equivalents either (A) at a conversion price, exercise price, exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the Common Stock at any time after the initial issuance of such debt or equity securities under(including, without limitation, pursuant to any “cashless exercise” provision), 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 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 (including, without limitation, any “at-the-marketfull ratchet” or “weighted average” anti-dilution provisions), (ii) issues or sells any debt or equity securities, including without limitation, Common Stock or Common Stock Equivalents, either (A) at a 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) that is subject to or contains any put, call, redemption, buy-back, price-reset or other similar provision or mechanism (including, without limitation, a “Black-Scholes” put or call right) that provides for the issuance of additional debt or equity securities of the Company or the payment of cash by the Company, or (iii) enters into any agreement, including, but not limited to, an “equity line of credit (credit”, “at-the-market offering” or other than any transaction between the Company and the Investor)continuous offering or similar offering of Common Stock or Common Stock Equivalents, whereby the Company may sell securities Common Stock or Common Stock Equivalents at a future determined price. “Exempt Issuance” means only the following: (i) the issuance of (a) Common Stock, options or other equity incentive awards to employees, officers, directors or vendors of the Company pursuant to any equity incentive plan or stock purchase plan duly adopted for such purpose, by the Board of Directors of the Company or a majority of the members of a committee of directors established for such purpose, (b) (1) any Securities issued to the Investor pursuant to this Agreement, (2) any securities issued upon the exercise or exchange of or conversion of any shares of Common Stock under or Common Stock Equivalents held by the Investor at any time, (3) shares of Common Stock, Common Stock Equivalents or other securities issued to the Investor pursuant to any other existing or future contract, agreement or arrangement between the Company and the Investor, if any, or (4) any securities issued upon the exercise or exchange of or conversion of any Common Stock Equivalents issued and outstanding on the date of this Agreement, provided that such securities referred to in this clause (4) have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, (c) securities issued pursuant to acquisitions, divestitures, licenses, partnerships, collaborations or strategic transactions approved by the Board of Directors or a majority of the members of a committee of directors established for such purpose, which acquisitions, divestitures, licenses, partnerships, collaborations or strategic transactions can have a Variable Rate Transaction component, provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, or (d) Common Stock issued pursuant to an “at-the-market offering” under Rule 415(a)(4) under the market” agreement in effect as of Securities Act by the date hereof, as it may be amended from time to time, with a third party Company exclusively through one or more registered broker-dealer so long as, for dealers acting primarily as agent(s) of the ninety (90) day period following Company pursuant to a written equity distribution or sales agreement between the date hereof, no issuances under any Company and such agreement aggregate in excess of $2.0 million worth of Common Stock during any consecutive twenty (20) Business Day period; and (ii) the issuance of Common Stock Equivalents with conversion or exercise prices which may adjust (or where the amount of Common Stock Equivalents issuable may adjust) based upon future events (including, without limitation, in instances involving the issuance of securities for a purchase price which is less than any such conversion or exercise price prior to adjustmentregistered broker-dealer(s).

No Variable Rate Transactions. From the date hereof of this Agreement until the Maturity DateDate (irrespective of any earlier termination of this Agreement), the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of shares of Common Stock Shares or Common Stock Share Equivalents for cash consideration (or a combination of units thereof) involving a Variable Rate Transaction, provided that the Company shall be permitted to effect other than in connection with an Exempt Issuance. “Common Stock Share Equivalents” means any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time shares of Common StockShares, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares of Common StockShares. “Variable Rate Transaction” means a transaction in which the Company enters (i) issues or sells any debt or equity securities that are convertible into, exchangeable or issues securities underexercisable for, or include the right to receive additional Common Shares or Common Share Equivalents either (A) 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 Common Shares at any time after the initial issuance of such debt or equity 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 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 Shares (including, without limitation, any “at-the-marketfull ratchet” or similar “weighted average” anti-dilution provisions) or (ii) enters into any agreement, including, but not limited to, an “equity line of credit (credit”, “at-the-market offering” or other than any transaction between the Company and the Investor)continuous offering or similar offering of Common Shares or Common Share Equivalents, whereby the Company may sell securities Common Shares or Common Share Equivalents at a future determined price. “Exempt Issuance” means only the following: (i) the issuance of shares (a) Common Shares or options to employees, officers, directors or vendors of the Company pursuant to any stock or option plan duly adopted for such purpose, by the Board of Directors or a majority of the members of a committee of directors established for such purpose, (b) securities upon the exercise or exchange of or conversion of any Purchase Shares or Commitment Shares issued hereunder and/or other securities exercisable or exchangeable for or convertible into Common Stock under Shares issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, (c) securities issued pursuant to acquisitions or strategic transactions approved by the Board of Directors or a majority of the members of a committee of directors established for such purpose, which acquisitions or strategic transactions can have a Variable Rate Transaction component, provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, (d) Common Shares issued pursuant to the At Market Issuance Sales Agreement, dated February 18, 2014, between the Company and MLV& Co. LLC, as such agreement may be amended or replaced with a new “at-at the market” agreement in effect as of the date hereof, as it may be amended issuance program from time to time-to-time, with and (e) Common Shares issued upon the exchange or conversion of securities that are issued pursuant to a third party registered broker-dealer so long asdebt facility and that are convertible into or exchangeable for, or include the right to receive Common Shares or Common Share Equivalents at a conversion price or exchange rate that is fixed at the time of initial issuance of such securities and does not thereafter vary or adjust based upon the trading prices of or quotations for the ninety (90) day period following the date hereof, no issuances under Common Shares at any such agreement aggregate in excess of $2.0 million worth of Common Stock during any consecutive twenty (20) Business Day period; and (ii) the issuance of Common Stock Equivalents with conversion or exercise prices which may adjust (or where the amount of Common Stock Equivalents issuable may adjust) based upon future events (including, without limitation, in instances involving the issuance of securities for a purchase price which is less than any such conversion or exercise price prior to adjustment)time thereafter.