Common use of Variable Rate Transaction Clause in Contracts

Variable Rate Transaction. From the date hereof until the two-year anniversary of the date hereof, 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 Common Stock or Common Stock Equivalents (or a combination of units 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 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, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit (but no including an at-the-market facility with the Placement Agent), whereby the Company may issue securities at a future determined price. Any Purchaser 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. Notwithstanding the foregoing, the Company shall be entitled to (I) execute an at-the-market offering program through the Placement Agent and such at-the-market offering program shall not be deemed a Variable Rate Transaction, or (II) after February 11, 2021, issue shares of Common Stock to Oasis Capital, LLC (“Oasis”) in connection with (a) the equity line of credit described on page 22 of the Company’s Form 10-Q for the period ended September 30, 2020 (the “September 2020 10-Q”), (b) shares of Common Stock issuable to Oasis Capital, LLC in connection with conversion of the outstanding promissory notes held by Oasis described on pages 38 and 39 of the September 2020 10-Q (the “Oasis Notes”) and (c) transactions that may be effected with Oasis pursuant to Section 3(a)(9) of the Securities Act in connection with the Oasis Notes.

Variable Rate Transaction. From the date hereof until the twoone-year anniversary of the date hereofClosing 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 Common Stock or Common Stock Equivalents (or a combination of units 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 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, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit (but no not including an at-the-market facility with the Placement Agent), whereby the Company may issue securities at a future determined price. Any Purchaser 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. Notwithstanding the foregoing, the Company shall be entitled to (I) execute an at-the-market offering program through the Placement Agent after six (6) months following the Closing Date and such at-the-market offering program shall not be deemed a Variable Rate Transaction, or (II) after February 11, 2021, issue shares of Common Stock to Oasis Capital, LLC (“Oasis”) in connection with (a) the equity line of credit described on page 22 of the Company’s Form 10-Q for the period ended September 30, 2020 (the “September 2020 10-Q”), (b) shares of Common Stock issuable to Oasis Capital, LLC in connection with conversion of the outstanding promissory notes held by Oasis described on pages 38 and 39 of the September 2020 10-Q (the “Oasis Notes”) and (c) transactions that may be effected with Oasis pursuant to Section 3(a)(9) of the Securities Act in connection with the Oasis Notes.

Variable Rate Transaction. From the date hereof until the two-year anniversary of the date hereof, 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 Common Stock or Common Stock Equivalents (or a combination of units 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 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, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit (but no including an at-the-market facility with the Placement Agent), whereby the Company may issue securities at a future determined price. Any Purchaser 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. Notwithstanding the foregoing, the Company shall be entitled to (I) execute an at-the-market offering program through the Placement Agent and such at-the-market offering program shall not be deemed a Variable Rate Transaction, or (II) after February 11, 2021, issue shares of Common Stock to Oasis Capital, LLC (“Oasis”) in connection with (a) the equity line of credit described on page 22 of the Company’s Form 10-Q for the period ended September 30, 2020 (the “September 2020 10-Q”), (b) shares of Common Stock issuable to Oasis Capital, LLC in connection with conversion of the outstanding promissory notes held by Oasis described on pages 38 and 39 of the September 2020 10-Q (the “Oasis Notes”) and (c) transactions that may be effected with Oasis pursuant to Section 3(a)(9) of the Securities Act in connection with the Oasis Notes.