Common use of Variable Rate Securities Clause in Contracts

Variable Rate Securities. Without the prior written consent of the holders of a majority of the outstanding principal balance of the Notes, the Company shall not issue or sell, or agree to issue or sell Variable Equity Securities (as defined below) (the “Variable Equity Securities Lock-Up”). For purposes hereof, the following shall be collectively referred to herein as, the “Variable Equity Securities”: (A) any debt or equity securities which are convertible into, exercisable or exchangeable for, or carry the right to receive additional shares of Common Stock either (1) at any conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for Common Stock at any time after the initial issuance of such debt or equity security, or (2) with a fixed conversion, exercise or exchange price that is subject to being reset at some future date at any time after the initial issuance of such debt or equity security due to a change in the market price of the Company’s Common Stock since date of initial issuance, or (B) any amortizing convertible security which amortizes prior to its maturity date, where the Company is required to or has the option to (or the investor in such transaction has the option to require the Company to) make such amortization payments in shares of Common Stock (whether or not such payments in stock are subject to certain equity conditions), or (C) any transaction involving a written agreement between the Company and an investor or underwriter whereby the Company has the right to “put” its securities to the investor or underwriter over an agreed period of time and at an agreed price or price formula; provided however, that the limitation contained in clause (C) above shall no longer apply upon and after the date of the Third Closing. For purposes of the above, the “Market Price” shall mean the volume weighted average price, as reported by Bloomberg Financial Markets (“Bloomberg”), for the Common Stock for the 5 trading day period immediately preceding the date in question.

Variable Rate Securities. Without the prior written consent For so long as any Notes have not been paid in full or converted in full, notwithstanding whether or not an issuance of the holders of a majority of the outstanding principal balance of the Notessecurities is an Permitted Financing, the Company shall not issue or sell, or agree to issue or sell Variable Equity Securities (as defined below) (the “Variable Equity Securities Lock-Up”), without obtaining the prior written approval of Purchasers then holding 66 2/3% of the then outstanding principal amount of the Notes. For purposes hereof, the following shall be collectively referred to herein as, the “Variable Equity Securities”: (A) any debt or equity securities which are convertible into, exercisable or exchangeable for, or carry the right to receive additional shares of Common Stock either (1) at any conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for Common Stock at any time after the initial issuance of such debt or equity security, or (2) with a fixed conversion, exercise or exchange price that is subject to being reset at some future date at any time after the initial issuance of such debt or equity security due to a change in the market price of the Company’s Common Stock since date of initial issuance, or (B) any amortizing convertible security which amortizes prior to its maturity date, where the Company is required to or has the option to (or the investor in such transaction has the option to require the Company to) make such amortization payments in shares of Common Stock (whether or not such payments in stock are subject to certain equity conditions), or (C) any transaction involving a written agreement between the Company and an investor or underwriter whereby the Company has the right to “put” its securities to the investor or underwriter over an agreed period of time and at an agreed price or price formula; provided however, that the limitation contained in clause (C) above shall no longer apply upon and after the date of the Third Closing. For purposes of the above, the “Market Price” shall mean the volume weighted average price, as reported by Bloomberg Financial Markets (“Bloomberg”), for the Common Stock Company’s common stock for the 5 trading day period immediately preceding the date in question. It is expressly agreed and understood that the Variable Equity Securities Lock-Up shall apply in respect of a Permitted Financing and that no issuance of Variable Equity Securities shall be a Permitted Financing.

Variable Rate Securities. Without the prior written consent For so long as any Notes have not been paid in full or converted in full and any Warrants remain outstanding, notwithstanding whether or not an issuance of the holders of a majority of the outstanding principal balance of the Notessecurities is an Permitted Financing, the Company shall not issue or sell, or agree to issue or sell Variable Equity Securities (as defined below) (the “Variable Equity Securities Lock-Up”), without obtaining the prior written approval of Purchasers then holding 66 2/3% of the then outstanding principal amount of the Notes. For purposes hereof, the following shall be collectively referred to herein as, the “Variable Equity Securities”: (A) any debt or equity securities which are convertible into, exercisable or exchangeable for, or carry the right to receive additional shares of Common Stock either (1) at any conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for Common Stock at any time after the initial issuance of such debt or equity security, or (2) with a fixed conversion, exercise or exchange price that is subject to being reset at some future date at any time after the initial issuance of such debt or equity security due to a change in the market price of the Company’s Common Stock since date of initial issuance, or (B) any amortizing convertible security which amortizes prior to its maturity date, where the Company is required to or has the option to (or the investor in such transaction has the option to require the Company to) make such amortization payments in shares of Common Stock (whether or not such payments in stock are subject to certain equity conditions), or (C) any transaction involving a written agreement between the Company and an investor or underwriter whereby the Company has the right to “put” its securities to the investor or underwriter over an agreed period of time and at an agreed price or price formula; provided however, that the limitation contained in clause (C) above shall no longer apply upon and after the date of the Third Closing. For purposes of the above, the “Market Price” shall mean the volume weighted average price, as reported by Bloomberg Financial Markets (“Bloomberg”), for the Common Stock Company’s common stock for the 5 trading day period immediately preceding the date in question. It is expressly agreed and understood that the Variable Equity Securities Lock-Up shall apply in respect of a Permitted Financing and that no issuance of Variable Equity Securities shall be a Permitted Financing.

Variable Rate Securities. Without the prior written consent For so long as any Notes have not been paid in full or converted in full, notwithstanding whether or not an issuance of the holders of a majority of the outstanding principal balance of the Notessecurities is an Permitted Financing, the Company shall not issue or sell, or agree to issue or sell Variable Equity Securities (as defined below) (the “Variable Equity Securities Lock-Up”), without obtaining the prior written approval of each of the Purchasers, with the exception of any such agreements or transactions that (x) exist as of the date hereof and (y) are not amended or modified after the date hereof. For purposes hereof, the following shall be collectively referred to herein as, the “Variable Equity Securities”: (A) any debt or equity securities which are convertible into, exercisable or exchangeable for, or carry the right to receive additional shares of Common Stock either (1) at any conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for Common Stock at any time after the initial issuance of such debt or equity security, or (2) with a fixed conversion, exercise or exchange price that is subject to being reset at some future date at any time after the initial issuance of such debt or equity security due to a change in the market price of the Company’s Common Stock since date of initial issuance, or (B) any amortizing convertible security which amortizes prior to its maturity date, where the Company is required to or has the option to (or the investor in such transaction has the option to require the Company to) make such amortization payments in shares of Common Stock (whether or not such payments in stock are subject to certain equity conditions), or (C) any transaction involving a written agreement between the Company and an investor or underwriter whereby the Company has the right to “put” its securities to the investor or underwriter over an agreed period of time and at an agreed price or price formula; provided howeverformula (each, an “Equity Line” transaction). It is expressly agreed and understood that the limitation contained Variable Equity Securities Lock-Up shall apply in clause (C) above respect of a Permitted Financing and that no issuance of Variable Equity Securities shall no longer apply upon and after the date of the Third Closing. For purposes of the above, the “Market Price” shall mean the volume weighted average price, as reported by Bloomberg Financial Markets (“Bloomberg”), for the Common Stock for the 5 trading day period immediately preceding the date in questionbe a Permitted Financing.

Variable Rate Securities. Without For so long as the prior written consent Exchange Notes remain outstanding, notwithstanding whether or not an issuance of the holders of securities is a majority of the outstanding principal balance of the NotesPermitted Issuance, the Company shall not issue or sell, or agree to issue or sell Variable Equity Securities (as defined below) (the “Variable Equity Securities Lock-Up”), without obtaining the prior written approval of Platinum. For purposes hereof, the following shall be collectively referred to herein as, as the “Variable Equity Securities”: (A) any debt or equity securities which are convertible into, exercisable or exchangeable for, or carry the right to receive additional shares of Common Stock either (1) at any conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for Common Stock at any time after the initial issuance of such debt or equity security, or (2) with a fixed conversion, exercise or exchange price that is subject to being reset at some future date at any time after the initial issuance of such debt or equity security due to a change in the market price of the Company’s Common Stock since date of initial issuance, or (B) any amortizing convertible security which amortizes prior to its maturity date, where the Company is required to or has the option to (or the investor in such transaction has the option to require the Company to) make such amortization payments in shares of Common Stock (whether or not such payments in stock are subject to certain equity conditions), or (C) any transaction involving a written agreement between the Company and an investor or underwriter whereby the Company has the right to “put” its securities to the investor or underwriter over an agreed period of time and at an agreed price or price formula; provided howeverformula (each, an “Equity Line” transaction). It is expressly agreed and understood that the limitation contained Variable Equity Securities Lock-Up shall apply in clause (C) above respect of a Permitted Issuance and that no issuance of Variable Equity Securities shall no longer apply upon and after the date of the Third Closing. For purposes of the above, the “Market Price” shall mean the volume weighted average price, as reported by Bloomberg Financial Markets (“Bloomberg”), for the Common Stock for the 5 trading day period immediately preceding the date in questionbe a Permitted Issuance.