Common use of Subsequent Variable Rate Transactions Clause in Contracts

Subsequent Variable Rate Transactions. From the date hereof until such time as the Note is fully converted or fully repaid, the Company shall be prohibited from effecting or entering into an agreement 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 shares of Common Stock 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 shares of 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 or (ii) enters into any agreement, including, but not limited to, an equity line of credit, whereby the Company may issue securities at a future determined price. The 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, provided, however, that the definition of Variable Rate Transaction hereunder shall not include (i) any Variable Rate Transaction consummated by the Company after the date that is four (4) calendar months after the date of this Agreement (each a “Delayed Variable Rate Transaction”) if the Company pays 50% of the gross proceeds (not including original issuance discounts and registered broker-dealer fees) from such Delayed Variable Rate Transaction to the Buyer towards the repayment of the Note within two (2) business days of the closing of the Delayed Variable Rate Transaction and (ii) any self-amortization promissory notes on the same terms and conditions as the Note so long as the issuance date is at least thirty (30) calendar days after the date of this Agreement. For the avoidance of doubt, any payment by the Company to the Buyer in connection with a Delayed Variable Rate Transaction as contemplated by the immediately preceding sentence shall not affect the dates or amounts of the amortization payments schedule in Section 4.17 of the Note except to the effect that (i) an Amortization Payment (as defined in the Note) shall not be paid once the Note is extinguished in its entirety and (ii) if the total amount outstanding (including interest) under the Note at the time of a required Amortization Payment is less than the amount of the required Amortization Payment then the Amortization Payment shall be reduced to equal the total amount outstanding under the Note at the time of the required Amortization Payment.

Subsequent Variable Rate Transactions. From the date hereof until such time as the Note is fully converted or fully repaid, the Company shall be prohibited from effecting or entering into an agreement 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 shares of Common Stock 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 shares of 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 or (ii) enters into any agreement, including, but not limited to, an equity line of credit, whereby the Company may issue securities at a future determined price. The 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, provided, however, that the definition of Variable Rate Transaction hereunder shall not include (i) any Variable Rate Transaction consummated by the Company after the date that is four (4) calendar months after the date of this Agreement (each a “Delayed Variable Rate Transaction”) if the Company pays 50% of the gross proceeds (not including original issuance discounts and registered broker-dealer fees) from such Delayed Variable Rate Transaction to the Buyer towards the repayment of the Note within two (2) business days of the closing of the Delayed Variable Rate Transaction and Transaction, (ii) any self-amortization promissory notes on the same terms and conditions as the Note so long as Note, or (iii) any issuance of Common Stock pursuant to a stock purchase agreement that contains dilutive issuance provisions that are the issuance date is at least thirty (30same as, or less favorable than, Section 1.6(e) calendar days after the date of this Agreement. For the avoidance of doubt, any payment by the Company to the Buyer in connection with a Delayed Variable Rate Transaction as contemplated by the immediately preceding sentence shall not affect the dates or amounts of the amortization payments schedule in Section 4.17 of the Note except to the effect that (i) an Amortization Payment (as defined in the Note) shall not be paid once the Note is extinguished in its entirety and (ii) if the total amount outstanding (including interest) under the Note at the time of a required Amortization Payment is less than the amount of the required Amortization Payment then the Amortization Payment shall be reduced to equal the total amount outstanding under the Note at the time of the required Amortization Payment.