Common use of Other Preferred Shares; Variable Securities Clause in Contracts

Other Preferred Shares; Variable Securities. So long as any Series B Preferred Shares remain outstanding, the Company shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction (other than a Permitted Equity Line (as defined below)). “Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any Convertible Securities either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such Convertible Securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such Convertible Securities or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock, other than pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (including, without limitation, an equity line of credit or an “at-the-market” offering) whereby the Company may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages. “Permitted Equity Line” means the Common Stock Purchase Agreement, by and between the Company and Keystone Capital Partners, LLC (or an affiliate thereof) (“Keystone”), dated as of February 14, 2024 (the “Common Stock Purchase Agreement”) and, following the termination or expiration of the Common Stock Purchase Agreement as a result of (i) the sale of shares of the maximum number of shares of Common Stock permitted to be sold thereunder, (ii) the expiration of the three-year term thereof or (iii) to the extent such termination is expressly permitted by the terms of the Common Stock Purchase Agreement, an equity line of credit or an “at-the-market” offering in replacement thereof. Notwithstanding the foregoing, any waiver or amendment of Section 4(n) of the Original Securities Purchase Agreement by the requisite Series A Investors shall be deemed to also apply to this Section 4(n).

Other Preferred Shares; Variable Securities. So long as any Series B Preferred Shares remain outstanding, each of the Company BC Entities shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction (other than a Permitted Equity Line (as defined below)). “Variable Rate Transaction” means a transaction in which the Company any BC Entity (i) issues or sells any Convertible Securities either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such Convertible Securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such Convertible Securities or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company one or more BC Entities or the market for the Common Stock, other than pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (including, without limitation, an equity line of credit or an “at-the-market” offering) whereby the Company one or more BC Entities may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled to obtain injunctive relief against the Company any BC Entity to preclude any such issuance, which remedy shall be in addition to any right to collect damages. “Permitted Equity Line” means the Common Stock Purchase Agreement, by and between the Company and Keystone Capital Partners, LLC (or an affiliate thereof) (“Keystone”), dated substantially in the form attached as of February 14, 2024 Exhibit D hereto (the “Common Stock Purchase Agreement”) and, following the termination or expiration of the Common Stock Purchase Agreement as a result of (i) the sale of shares of the maximum number of shares of Common Stock permitted to be sold thereunder, (ii) the expiration of the three-year term thereof or (iii) to the extent such termination is expressly permitted by the terms of the Common Stock Purchase Agreement, an equity line of credit or an “at-the-market” offering in replacement thereof. Notwithstanding the foregoing, any waiver or amendment of Section 4(n) of the Original Securities Purchase Agreement by the requisite Series A Investors shall be deemed to also apply to this Section 4(n).

Other Preferred Shares; Variable Securities. So long as any Series B Preferred Shares or Preferred Warrants remain outstanding, each of the Company BC Entities shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction (other than a Permitted Equity Line (as defined below)). “Variable Rate Transaction” means a transaction in which the Company any BC Entity (i) issues or sells any Convertible Securities either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such Convertible Securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such Convertible Securities or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company one or more BC Entities or the market for the Common Stock, other than pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (including, without limitation, an equity line of credit or an “at-the-market” offering) whereby the Company one or more BC Entities may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled to obtain injunctive relief against the Company any BC Entity to preclude any such issuance, which remedy shall be in addition to any right to collect damages. “Permitted Equity Line” means the Common Stock Purchase Agreement, by and between the Company and Keystone Capital Partners, LLC (or an affiliate thereof) (“Keystone”), dated substantially in the form attached as of February 14, 2024 Exhibit E hereto (the “Common Stock Purchase Agreement”) and, following the termination or expiration of the Common Stock Purchase Agreement as a result of (i) the sale of shares of the maximum number of shares of Common Stock permitted to be sold thereunder, (ii) the expiration of the three-year term thereof or (iii) to the extent such termination is expressly permitted by the terms of the Common Stock Purchase Agreement, an equity line of credit or an “at-the-market” offering in replacement thereof. Notwithstanding the foregoing, any waiver or amendment of Section 4(n) of the Original Securities Purchase Agreement by the requisite Series A Investors shall be deemed to also apply to this Section 4(n).

Other Preferred Shares; Variable Securities. So long as any Series B Preferred Shares remain outstanding, the Company and each Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction (other than a Permitted Equity Line (as defined below))Transaction. “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary (i) issues or sells any Convertible Securities either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such Convertible Securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such Convertible Securities or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock, other than pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (including, without limitation, an equity line of credit or an “at-the-market” offeringoffering (other than a Permitted ATM (as defined below))) whereby the Company or any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled to obtain injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages. “Permitted Equity Line” means Notwithstanding anything to the Common Stock Purchase Agreement, by and between contrary contained in this Section 4(n) the Company and Keystone Capital Partners, LLC (or an affiliate thereof) (“Keystone”), dated as of February 14, 2024 (the “Common Stock Purchase Agreement”) and, following the termination or expiration of the Common Stock Purchase Agreement as a result of (i) the sale of shares of the maximum number of shares of Common Stock shall specifically be permitted to be sold thereunder, (ii) the expiration of the three-year term thereof or (iii) to the extent such termination is expressly permitted by the terms of the Common Stock Purchase Agreement, enter into an equity line of credit or an “at-the-market” offering market equity facility (the “Permitted ATM”) whereby the Company may sell shares of its common stock from time to time provided (A) the minimum price at which the Company may sell any Common Shares in replacement thereof. Notwithstanding $0.60 per share and (B) the foregoing, any waiver or amendment aggregate amount of Section 4(nthe ATM Offering does not exceed $10,000,000 and (C) at least thirty-three (33%) of the Original Securities Purchase Agreement by proceeds of each any every draw down pursuant to any Permitted ATM is used to pay down the requisite Series A Investors shall be deemed to also apply to this Section 4(nPermitted Senior Indebtedness (as defined in the Convertible Preferred Certificate of Designations).