Common use of Additional Issuance of Securities Clause in Contracts

Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending twelve (12) months after the Closing Date (the “Restricted Period”), neither the Company nor any of the Subsidiaries shall directly or indirectly issue, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant or any option to purchase or other disposition of) any of their respective equity or equity equivalent securities, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time and under any circumstances convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, capital stock and other securities of the Company (including, without limitation, any securities of the Company or any Subsidiary which entitle the holder thereof to acquire Common Shares at any time, including without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Shares or other securities that entitle the holder to receive, directly or indirectly, Common Shares) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement being referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (A) Common Shares or standard options to purchase Common Shares issued to directors, officers, employees or consultants of the Company in connection with their service as directors or officers of the Company, their employment by the Company or their retention as consultants by the Company pursuant to an equity compensation program or other contract or arrangement approved by the Board of Directors of the Company (or the compensation committee of the Board of Directors of the Company), provided that all such issuances after the date hereof pursuant to this clause (A) do not, in the aggregate, exceed more than 5% of the Common Shares issued and outstanding immediately prior to the date hereof, (B) Common Shares in connection with strategic alliances, acquisitions, mergers, strategic partnerships, joint ventures, vendor and supplier arrangements and as equity kickers in lease and financing transactions, the primary purpose of which is not to raise capital, and which are approved in good faith by the Company’s Board of Directors, provided that all such issuances after the date hereof pursuant to this clause (B) do not, in the aggregate, exceed more than 10% of the Common Shares issued and outstanding immediately prior to the date hereof, (C) Common Shares issued upon the conversion or exercise of Equivalents issued prior to the date hereof, provided that such Equivalents have not been amended since the date of this Agreement to increase the number of shares issuable thereunder or to lower the exercise or conversion price thereof or otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyers, (D) Common Shares issued or issuable by reason of a dividend, stock split or other distribution on Common Shares, (E) Common Shares or standard warrants to purchase Common Shares issued to the plaintiffs in connection with the settlement of (1) the class action lawsuit filed on or about August 10, 2005 against the Company, its chief executive officer and former chief financial officer, (2) the lawsuit filed on September 27, 2006 by Sunrise Equity Partners, L.P. against the Company and its former chief executive officer and (3) the lawsuit filed on April 11, 2007 by Xxxxxx X. Low and Sunrise Foundation Trust, in each case, alleging, among other things, violations of the 1934 Act (all as further described in the Company’s most recently filed Form 10-Q), provided that all such Common Shares issued after the date hereof pursuant to this clause (E) (including pursuant to the exercise of any such warrants so issued) do not, in the aggregate, exceed more than 2,000,000 Common Shares, provided further that no such warrants (i) shall contain (I) any anti-dilution or other adjustment provisions, other than provisions providing for standard adjustments in the event of stock dividends, stock splits and stock combinations or (II) an exercise price that is less than the fair market value of the Common Shares on the date such warrant is issued or (ii) are amended to increase the number of shares issuable thereunder or to lower the exercise price thereof or the terms or conditions thereof are otherwise materially changed in any manner that adversely affects any of the Buyers, (F) Conversion Shares or (G) Warrant Shares (each of the foregoing in clauses (A) through (G), collectively the “Excluded Securities”).

Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending twelve on the date immediately following the one hundred twenty (12120) months after Trading Day (as defined in the Closing Warrants) anniversary of the Applicable Date (the “Restricted Period”), neither the Company nor any of the its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant or any option to purchase or other disposition of) any of their respective equity or equity equivalent securities, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time and under any circumstances convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, capital stock and other securities of the Company (including, without limitation, any securities of the Company or any Subsidiary which entitle the holder thereof to acquire Common Shares Stock at any time, including without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Shares Stock or other securities that entitle the holder to receive, directly or indirectly, Common SharesStock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement being (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (A) shares of Common Shares or Stock (including upon exercise of standard options to purchase Common Shares issued Stock) to directors, officers, officers or employees or consultants of the Company in connection with their service capacity as directors or officers of the Company, their employment by the Company or their retention as consultants by the Company such pursuant to an equity compensation program or other contract or arrangement approved by the Board of Directors of the Company Approved Share Plan (or the compensation committee of the Board of Directors of the Companyas defined below), provided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (A) do not, in the aggregate, exceed more than 5% of the Common Shares Stock issued and outstanding immediately prior to the date hereofhereof and (2) such options are not amended to increase the number of shares issuable thereunder or to lower the exercise price thereof or to otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyers, (B) shares of Common Shares in connection with strategic alliances, acquisitions, mergers, strategic partnerships, joint ventures, vendor and supplier arrangements and as equity kickers in lease and financing transactions, the primary purpose of which is not to raise capital, and which are approved in good faith by the Company’s Board of Directors, provided that all such issuances after the date hereof pursuant to this clause (B) do not, in the aggregate, exceed more than 10% of the Common Shares issued and outstanding immediately prior to the date hereof, (C) Common Shares Stock issued upon the conversion or exercise of Equivalents issued prior to the date hereof, provided that such Equivalents have not been amended since the date of this Agreement to increase the number of shares issuable thereunder or to lower the exercise or conversion price thereof or otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyers, (C) the Conversion Shares, (D) Common Shares issued or issuable by reason of a dividend, stock split or other distribution on Common the Warrant Shares, (E) up to 855,000 restricted shares of Common Shares or standard warrants Stock issuable to purchase Common Shares issued to Renergix Wind LLC under the plaintiffs in connection with the settlement terms of (that certain Joint Development Agreement dated effective as of January 1) the class action lawsuit filed on or about August 10, 2005 against the Company, its chief executive officer and former chief financial officer, (2) the lawsuit filed on September 27, 2006 by Sunrise Equity Partners, L.P. against the Company and its former chief executive officer and (3) the lawsuit filed on April 11, 2007 by Xxxxxx X. Low and Sunrise Foundation Trust, in each case, alleging, among other things, violations of the 1934 Act (all as further described in the Company’s most recently filed Form 10-Q)2009, provided that all such shares of Common Shares Stock are issued after solely in accordance with the date hereof pursuant to this clause (E) (including pursuant to the exercise terms of any such warrants so issued) do notagreement, in the aggregate, exceed more than 2,000,000 Common Shares, provided further that no such warrants (i) shall contain (I) any anti-dilution or other adjustment provisions, other than provisions providing for standard adjustments in the event of stock dividends, stock splits and stock combinations or (II) an exercise price that agreement is less than the fair market value of the Common Shares on the date such warrant is issued or (ii) are not amended to increase the number of shares issuable thereunder or to lower the exercise price thereof or and the terms or conditions thereof of such agreement are not otherwise materially changed in any manner that adversely affects any of the Buyers, Buyers and (F) Conversion Shares or (G) the Placement Agent Warrant Shares (each of the foregoing in clauses (A) through (GF), collectively the “Excluded Securities”). “Approved Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such; “Placement Agent Warrant” means the warrant to be issued by the Company to the Placement Agent on the Closing Date to purchase up to 83,333 shares of Common Stock at an initial exercise price of $0.90 per share, in the form provided to the Buyers on the date hereof; and “Placement Agent Warrant Shares” means the shares of Common Stock issuable to the Placement Agent upon exercise of the Placement Agent Warrant. It is expressly understood and agreed that the offer, issuance and sale by any Project Subsidiary (as defined in the Notes) of Project LLC Securities (as defined below) shall not constitute a Subsequent Placement only if (i) the offer, issuance and sale of such Project LLC Securities does not include or involve any security (as defined under the 1000 Xxx) or other equity interest or equity-linked interest in the Company, any Subsidiary or any other Person (except that the applicable Project LLC Securities themselves constitute a security under the 1933 Act) and (ii) such Project LLC Securities are offered, issued and sold by such Project Subsidiary only (1) in connection with the incurrence of specific Permitted Project Indebtedness (as defined in the Notes) by such Project Subsidiary and (2) to a Person that (I) is, itself or through its subsidiaries, an operating company in a business synergistic with the business of the Company and its Subsidiaries, (II) actually provides strategic benefits to such Project Subsidiary issuing such Project LLC Securities and (III) is the lender of such Permitted Project Indebtedness. “Project LLC Securities” means a limited liability company membership interest of a Project Subsidiary that is not, directly or indirectly, convertible into or exercisable or exchangeable for shares of Common Stock or any other security (as defined in the 1000 Xxx) of, or other equity interest of or equity-linked interest in, the Company, any Subsidiary or any other Person.

Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending twelve on the date immediately following the one hundredth (12100th) months after Trading Day (as defined in the Closing Warrants) anniversary of the Applicable Date (the “Restricted Period”), neither the Company nor any of the its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant or any option to purchase or other disposition of) any of their respective equity or equity equivalent securities, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time and under any circumstances convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, capital stock and other securities of the Company (including, without limitation, any securities of the Company or any Subsidiary which entitle the holder thereof to acquire Common Shares Stock at any time, including without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Shares Stock or other securities that entitle the holder to receive, directly or indirectly, Common SharesStock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement being (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) (A) shares of Common Shares or Stock (including shares of Common Stock issuable upon exercise of standard options to purchase Common Shares issued Stock or standard warrants to purchase Common Stock) to directors, officers, the consultants expressly set forth on Schedule 4(k) attached hereto or employees or consultants of the Company in connection with their service as directors or officers of the Company, in each case, in their employment by the Company or their retention capacity as consultants by the Company such pursuant to an equity compensation program or other contract or arrangement approved by the Board of Directors of the Company Approved Share Plan (or the compensation committee of the Board of Directors of the Companyas defined below), provided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options and warrants) after the date hereof pursuant to this clause (A) do not, in the aggregate, exceed more than 510% of the Common Shares Stock issued and outstanding immediately prior to the date hereofhereof and (2) neither such options nor warrants are amended to increase the number of shares issuable thereunder or to lower the exercise price thereof or to otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyers, (B) shares of Common Shares in connection with strategic alliances, acquisitions, mergers, strategic partnerships, joint ventures, vendor and supplier arrangements and as equity kickers in lease and financing transactions, the primary purpose of which is not to raise capital, and which are approved in good faith by the Company’s Board of Directors, provided that all such issuances after the date hereof pursuant to this clause (B) do not, in the aggregate, exceed more than 10% of the Common Shares issued and outstanding immediately prior to the date hereof, (C) Common Shares Stock issued upon the conversion or exercise of Equivalents issued prior to the date hereof, provided that such Equivalents have not been amended since the date of this Agreement to increase the number of shares issuable thereunder or to lower the exercise or conversion price thereof or otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyers, (C) the Conversion Shares and (D) Common Shares issued or issuable by reason of a dividend, stock split or other distribution on Common Shares, (E) Common Shares or standard warrants to purchase Common Shares issued to the plaintiffs in connection with the settlement of (1) the class action lawsuit filed on or about August 10, 2005 against the Company, its chief executive officer and former chief financial officer, (2) the lawsuit filed on September 27, 2006 by Sunrise Equity Partners, L.P. against the Company and its former chief executive officer and (3) the lawsuit filed on April 11, 2007 by Xxxxxx X. Low and Sunrise Foundation Trust, in each case, alleging, among other things, violations of the 1934 Act (all as further described in the Company’s most recently filed Form 10-Q), provided that all such Common Shares issued after the date hereof pursuant to this clause (E) (including pursuant to the exercise of any such warrants so issued) do not, in the aggregate, exceed more than 2,000,000 Common Shares, provided further that no such warrants (i) shall contain (I) any anti-dilution or other adjustment provisions, other than provisions providing for standard adjustments in the event of stock dividends, stock splits and stock combinations or (II) an exercise price that is less than the fair market value of the Common Shares on the date such warrant is issued or (ii) are amended to increase the number of shares issuable thereunder or to lower the exercise price thereof or the terms or conditions thereof are otherwise materially changed in any manner that adversely affects any of the Buyers, (F) Conversion Shares or (G) Warrant Shares (each of the foregoing in clauses (A) through (GD), collectively the “Excluded Securities”)) or (ii) up to 400,000 shares of Common Stock in the aggregate to Xxxxxx Xxxxx, LLP and Xxxxxxx X. Xxxxxx, Xx. in consideration for legal services provided to the Company, provided that the Company shall not issue more than 50,000 of such 400,000 shares in the aggregate in any calendar month. “Approved Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.

Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending twelve on the date immediately following the sixty (1260) months after Trading Day (as defined in the Closing Warrants) anniversary of the Applicable Date (provided that such period shall be extended by the number of Trading Days during such period and any extension thereof contemplated by this proviso on which any Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of the its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant or any option to purchase or other disposition of) any of their respective equity or equity equivalent securities, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time and under any circumstances convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, capital stock and other securities of the Company (including, without limitation, any securities of the Company or any Subsidiary which entitle the holder thereof to acquire Common Shares Stock at any time, including without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Shares Stock or other securities that entitle the holder to receive, directly or indirectly, Common SharesStock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement being (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (A) shares of Common Shares Stock or standard options to purchase Common Shares issued Stock to directors, officers, officers or employees or consultants of the Company in connection with their service capacity as directors or officers of the Company, their employment by the Company or their retention as consultants by the Company such pursuant to an equity compensation program or other contract or arrangement approved by the Board of Directors of the Company Approved Share Plan (or the compensation committee of the Board of Directors of the Companyas defined below), provided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this clause (A) do not, in the aggregate, exceed more than 5% of the Common Shares Stock issued and outstanding immediately prior to the date hereofhereof and (2) such options are not amended to increase the number of shares issuable thereunder or to lower the exercise price thereof or to otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyers, (B) shares of Common Shares in connection with strategic alliances, acquisitions, mergers, strategic partnerships, joint ventures, vendor and supplier arrangements and as equity kickers in lease and financing transactions, the primary purpose of which is not to raise capital, and which are approved in good faith by the Company’s Board of Directors, provided that all such issuances after the date hereof pursuant to this clause (B) do not, in the aggregate, exceed more than 10% of the Common Shares issued and outstanding immediately prior to the date hereof, (C) Common Shares Stock issued upon the conversion or exercise of Equivalents issued prior to the date hereof, provided that such Equivalents have not been amended since the date of this Agreement to increase the number of shares issuable thereunder or to lower the exercise or conversion price thereof or otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyers, and (D) Common Shares issued or issuable by reason of a dividend, stock split or other distribution on Common Shares, (E) Common Shares or standard warrants to purchase Common Shares issued to the plaintiffs in connection with the settlement of (1C) the class action lawsuit filed on or about August 10, 2005 against the Company, its chief executive officer and former chief financial officer, (2) the lawsuit filed on September 27, 2006 by Sunrise Equity Partners, L.P. against the Company and its former chief executive officer and (3) the lawsuit filed on April 11, 2007 by Xxxxxx X. Low and Sunrise Foundation Trust, in each case, alleging, among other things, violations of the 1934 Act (all as further described in the Company’s most recently filed Form 10-Q), provided that all such Common Shares issued after the date hereof pursuant to this clause (E) (including pursuant to the exercise of any such warrants so issued) do not, in the aggregate, exceed more than 2,000,000 Common Shares, provided further that no such warrants (i) shall contain (I) any anti-dilution or other adjustment provisions, other than provisions providing for standard adjustments in the event of stock dividends, stock splits and stock combinations or (II) an exercise price that is less than the fair market value of the Common Shares on the date such warrant is issued or (ii) are amended to increase the number of shares issuable thereunder or to lower the exercise price thereof or the terms or conditions thereof are otherwise materially changed in any manner that adversely affects any of the Buyers, (F) Conversion Shares or (G) Warrant Shares (each of the foregoing in clauses (A) through (GC), collectively the “Excluded Securities”). “Approved Share Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such; “Placement Agent Warrant” means the warrants to be issued by the Company to the Placement Agent on the Closing Date to purchase, in the aggregate, up to 52,857 shares of Common Stock at an initial exercise price of $6.00 per share, in the form provided to the Buyers on the date hereof; and “Placement Agent Warrant Shares” means the shares of Common Stock issuable to the Placement Agent upon exercise of the Placement Agent Warrant.

Additional Issuance of Securities. The Except as set forth on Schedule 4(j), the Company agrees that for the period commencing on the date hereof and ending twelve ninety (1290) months days after the Closing Date (the “Restricted Period”), neither the Company nor any of the its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant or any option to purchase or other disposition of) any of their respective equity or equity equivalent securities, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time and under any circumstances convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, capital stock and other securities of the Company (including, without limitation, any securities of the Company or any Subsidiary which entitle the holder thereof to acquire Common Shares Stock at any time, including without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Shares Stock or other securities that entitle the holder to receive, directly or indirectly, Common SharesStock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement being referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4(j) shall not apply in respect of the issuance of (A) shares of Common Shares Stock or standard options to purchase Common Shares Stock issued to directors, officers, employees or consultants of the Company in connection with their service as directors or officers of the Company, their employment by the Company or their retention as consultants by the Company pursuant to an equity compensation program or other contract or arrangement approved by the Board board of Directors directors of the Company (or the compensation committee of the Board board of Directors directors of the Company), provided that all such issuances of shares of Common Stock (including, shares of Common Stock issuable upon exercise of such standard options) after the date hereof pursuant to this clause (A) that are not described in clause (B) below do not, in the aggregate, exceed more than 5% of the Common Shares Stock issued and outstanding immediately prior to the date hereofhereof (as adjusted for any stock dividend, stock split, stock combination or other similar transaction) (B) excluding, for purposes of the foregoing 5% calculation, shares of Common Shares in connection with strategic alliances, acquisitions, mergers, strategic partnerships, joint ventures, vendor and supplier arrangements and as equity kickers in lease and financing transactions, Stock issuable upon exercise of such standard options issued after the primary purpose of which is not to raise capital, and which are approved in good faith by the Company’s Board of Directorsdate hereof that have been terminated or forfeited), provided further that all such issuances after must be for consideration per share or have an exercise price (as the case may be) (as determined pursuant to the provisions of Section 3(f)(i) of the Series A Warrants) greater than or equal to the fair market value of the Common Stock on the date hereof pursuant to this clause of such issuance; (B) do not, in the aggregate, exceed more than 10% shares of the Common Shares issued and outstanding immediately prior to the date hereof, (C) Common Shares Stock issued upon the conversion or exercise of Equivalents issued prior to the date hereof, provided that such Equivalents have not been amended since the date of this Agreement hereof to increase the number of shares issuable thereunder or to lower the exercise or conversion price thereof or otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the BuyersBuyers (it being understood that the adjustment of the exercise or conversion price thereof pursuant to anti-dilution provisions contained therein as of the date of this Agreement that are triggered by the transactions contemplated hereby shall not be deemed to be an amendment; any such adjustments, however, shall be described in Section 3(r)(ii) of the Disclosure Letter); (C) the Conversion Shares; (D) the Warrant Shares; (E) shares of Common Shares Stock issued or issuable by reason of as a dividend, stock split or other distribution dividend on Common Shares, Stock; (EF) up to 1,090,910 shares of Common Shares or standard Stock issuable pursuant to warrants to purchase Common Shares issued to the plaintiffs Placement Agent in connection with the settlement transactions contemplated by this Agreement; (G) shares of (1) the class action lawsuit filed on or about August 10, 2005 against the Company, its chief executive officer and former chief financial officer, (2) the lawsuit filed on September 27, 2006 Common Stock issued by Sunrise Equity Partners, L.P. against the Company and its former chief executive officer and (3) solely as a penalty pursuant to the lawsuit filed on April 11, 2007 registration rights agreements entered into by Xxxxxx X. Low and Sunrise Foundation Trust, the Company in each case, alleging, among other things, violations of the 1934 Act (all as further described in connection with the Company’s most recently filed Form 10-QSeptember 28, 2005, May 12, 2006 and February 15, 2007 private placement transactions; or (H) shares of Common Stock issued in connection with strategic transactions or acquisitions (the primary purpose of which is not to raise capital, and which are approved in good faith by the board of directors of the Company), provided that all (i) any such Common Shares issued issuance after the date hereof pursuant to this clause (EH) shall only be to a Person that is, itself or through its subsidiaries, an operating company in a business synergistic with the business of the Company; (including ii) all such issuances after the date hereof pursuant to the exercise of any such warrants so issuedthis clause (H) do not, in the aggregate, exceed more than 2,000,000 10% of the shares of Common SharesStock issued and outstanding immediately prior to the date hereof (as adjusted for any stock dividend, provided further that no such warrants (i) shall contain (I) any anti-dilution stock split, stock combination or other adjustment provisions, other similar transaction) and (iii) all such issuances after the date hereof pursuant to this clause (H) must have a price per share (as determined pursuant to the provisions of Section 3(f)(i) of the Series A Warrants) greater than provisions providing for standard adjustments in the event of stock dividends, stock splits and stock combinations or (II) an exercise price that is less than equal to the fair market value of the Common Shares Stock on the date of such warrant is issued or (ii) are amended to increase the number of shares issuable thereunder or to lower the exercise price thereof or the terms or conditions thereof are otherwise materially changed in any manner that adversely affects any of the Buyers, (F) Conversion Shares or (G) Warrant Shares issuance (each of the foregoing in clauses (A) through (GH), collectively the “Excluded Securities”). Notwithstanding anything to the contrary set forth herein or in the Certificate of Determination, with respect to clause (F) above, as well as clause (F) of the definition of “Excluded Securities” in the Certificate of Determination, the aggregate number of shares of Common Stock issuable pursuant to the warrants issued to the Placement Agent in connection with the transactions contemplated by this Agreement shall not exceed the sum of (i) 545,455 plus (ii) an amount equal to 6% of the number of shares of Common Stock issuable upon conversion of the shares of Preferred Stock actually issued upon exercise of the Series B Warrants, determined on the dates such Series B Warrants are exercised.

Additional Issuance of Securities. (a) The Company agrees that for the period commencing on the date hereof and ending twelve on the sixtieth (1260th) months day after the Closing Date date hereof (the “Restricted Period”), neither the Company nor any of the its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant or any option to purchase or other disposition of) any of their respective equity or equity equivalent securities, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time and under any circumstances convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, capital stock and other securities of the Company (including, without limitation, any securities of the Company or any Subsidiary which entitle the holder thereof to acquire Common Shares Stock at any time, including without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Shares Stock or other securities that entitle the holder to receive, directly or indirectly, Common SharesStock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement being referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4.13(a) shall not apply in respect of the issuance of (A) unregistered shares of Common Shares Stock or standard options to purchase Common Shares Stock issued to directors, officers, employees or consultants of the Company in connection with their service as directors or officers of the Company, their employment by the Company or their retention as consultants by the Company pursuant to an equity compensation program or other contract or arrangement approved by the Board board of Directors directors of the Company (or the compensation committee of the Board board of Directors directors of the Company), provided that all such issuances of shares of Common Stock (including, shares of Common Stock issuable upon exercise of such standard options) after the date hereof pursuant to this clause (A) that are not described in clause (B) below do not, in the aggregate, exceed more than 5% of the Common Shares Stock issued and outstanding immediately prior to the date hereof (as adjusted for any stock dividend, stock split, stock combination or other similar transaction occurring after the date hereof, (B) Common Shares in connection with strategic alliances, acquisitions, mergers, strategic partnerships, joint ventures, vendor and supplier arrangements and as equity kickers in lease and financing transactions, the primary purpose of which is not to raise capital, and which are approved in good faith by the Company’s Board of Directors), provided further that all such issuances after must be for consideration per share or have an exercise price (as the case may be) greater than or equal to the fair market value of the Common Stock on the date hereof pursuant to this clause of such issuance; (B) do not, in the aggregate, exceed more than 10% shares of the Common Shares issued and outstanding immediately prior to the date hereof, (C) Common Shares Stock issued upon the conversion or exercise of Equivalents issued prior to the date hereof, provided that such Equivalents have not been amended since the date of this Agreement to increase the number of shares issuable thereunder or to lower the exercise or conversion price thereof or otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyers, Purchasers; (C) the shares of Preferred Stock issuable pursuant to Section 8 of the Certificate of Designation; (D) Common Shares issued or issuable by reason of a dividend, stock split or other distribution on Common the Underlying Shares, ; (E) the Warrant Shares; (F) unregistered shares of Common Shares or standard warrants to purchase Common Shares Stock issued to the plaintiffs in connection with strategic transactions (the settlement primary purpose of (1) which is not to raise capital, and which are approved in good faith by the class action lawsuit filed on or about August 10, 2005 against board of directors of the Company, its chief executive officer and former chief financial officer, (2) the lawsuit filed on September 27, 2006 by Sunrise Equity Partners, L.P. against the Company and its former chief executive officer and (3) the lawsuit filed on April 11, 2007 by Xxxxxx X. Low and Sunrise Foundation Trust, in each case, alleging, among other things, violations of the 1934 Act (all as further described in the Company’s most recently filed Form 10-Q), provided that all (i) any such Common Shares issued issuance after the date hereof pursuant to this clause (EF) shall only be to a Person that is, itself or through its subsidiaries, an operating company in a business synergistic with the business of the Company; (including ii) all such issuances after the date hereof pursuant to the exercise of any such warrants so issuedthis clause (F) do not, in the aggregate, exceed more than 2,000,000 20% of the shares of Common SharesStock issued and outstanding immediately prior to the date hereof (as adjusted for any stock dividend, provided further that no such warrants (i) shall contain (I) any anti-dilution stock split, stock combination or other adjustment provisions, other similar transaction occurring after the date hereof) and (iii) all such issuances after the date hereof pursuant to this clause (F) must have a price per share greater than provisions providing for standard adjustments in the event of stock dividends, stock splits and stock combinations or (II) an exercise price that is less than equal to the fair market value of the Common Shares Stock on the date of such warrant issuance. (b) During the Restricted Period, 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. The term “Variable Rate Transaction” shall mean a transaction in which the Company or any Subsidiary (i) issues or sells any Equivalents either (A) at a conversion, exercise or exchange rate or other price that is issued 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 Equivalents, 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 Equivalents 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 price-based anti-dilution provision or (ii) are amended to increase enters into any agreement (including, without limitation, an equity line of credit) whereby the number of shares issuable thereunder Company or to lower any material Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights, or in a transaction where the exercise price thereof or the terms or conditions thereof are otherwise materially changed in any manner that adversely affects any of the Buyerssecurities is determined at the time of closing of such transaction and such closing is subject to customary closing conditions such as shareholder approval). Each Purchaser shall be entitled to obtain injunctive relief against the Company and its Subsidiaries to preclude any such issuance, (F) Conversion Shares or (G) Warrant Shares (each of the foregoing which remedy shall be in clauses (A) through (G), collectively the “Excluded Securities”)addition to any right to collect damages.

Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending twelve ninety (1290) months days after the Closing Effective Date (as defined in the Registration Rights Agreement) of the initial registration statement required to be filed by the Company pursuant the terms of the Registration Rights Agreement which covers all of the securities required to be covered thereunder (the “Restricted Period”), neither the Company nor any of the Subsidiaries shall directly or indirectly issue, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant or any option to purchase or other disposition of) any of their respective equity or equity equivalent securities, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time and under any circumstances convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, capital stock and other securities of the Company (including, without limitation, any securities of the Company or any Subsidiary which entitle the holder thereof to acquire Common Shares Stock at any time, including without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Shares Stock or other securities that entitle the holder to receive, directly or indirectly, Common SharesStock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement being referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k5(h) shall not apply in respect of the issuance Excluded Securities. For purposes of (A) Common Shares or standard options to purchase Common Shares issued to directors, officers, employees or consultants of the Company in connection with their service as directors or officers of the Company, their employment by the Company or their retention as consultants by the Company pursuant to an equity compensation program or other contract or arrangement approved by the Board of Directors of the Company (or the compensation committee of the Board of Directors of the Company), provided that all such issuances after the date hereof pursuant to this clause (A) do not, in the aggregate, exceed more than 5% of the Common Shares issued and outstanding immediately prior to the date hereof, (B) Common Shares in connection with strategic alliances, acquisitions, mergers, strategic partnerships, joint ventures, vendor and supplier arrangements and as equity kickers in lease and financing transactionsAgreement, the primary purpose of which is not to raise capital, and which are approved in good faith by following terms shall have the Company’s Board of Directors, provided that all such issuances after the date hereof pursuant to this clause (B) do not, in the aggregate, exceed more than 10% of the Common Shares issued and outstanding immediately prior to the date hereof, (C) Common Shares issued upon the conversion or exercise of Equivalents issued prior to the date hereof, provided that such Equivalents have not been amended since the date of this Agreement to increase the number of shares issuable thereunder or to lower the exercise or conversion price thereof or otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyers, (D) Common Shares issued or issuable by reason of a dividend, stock split or other distribution on Common Shares, (E) Common Shares or standard warrants to purchase Common Shares issued to the plaintiffs in connection with the settlement of (1) the class action lawsuit filed on or about August 10, 2005 against the Company, its chief executive officer and former chief financial officer, (2) the lawsuit filed on September 27, 2006 by Sunrise Equity Partners, L.P. against the Company and its former chief executive officer and (3) the lawsuit filed on April 11, 2007 by Xxxxxx X. Low and Sunrise Foundation Trust, in each case, alleging, among other things, violations of the 1934 Act (all as further described in the Company’s most recently filed Form 10-Q), provided that all such Common Shares issued after the date hereof pursuant to this clause (E) (including pursuant to the exercise of any such warrants so issued) do not, in the aggregate, exceed more than 2,000,000 Common Shares, provided further that no such warrants (i) shall contain (I) any anti-dilution or other adjustment provisions, other than provisions providing for standard adjustments in the event of stock dividends, stock splits and stock combinations or (II) an exercise price that is less than the fair market value of the Common Shares on the date such warrant is issued or (ii) are amended to increase the number of shares issuable thereunder or to lower the exercise price thereof or the terms or conditions thereof are otherwise materially changed in any manner that adversely affects any of the Buyers, (F) Conversion Shares or (G) Warrant Shares (each of the foregoing in clauses (A) through (G), collectively the “Excluded Securities”).following meanings:

Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending twelve (12) months after the Closing Date (the “Restricted Period”), neither the Company nor any of the Subsidiaries shall directly or indirectly issue, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant or any option to purchase or other disposition of) any of their respective equity or equity equivalent securities, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time and under any circumstances convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, capital stock and other securities of the Company (including, without limitation, any securities of the Company or any Subsidiary which entitle the holder thereof to acquire Common Shares at any time, including without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Shares or other securities that entitle the holder to receive, directly or indirectly, Common Shares) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement being referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (A) Common Shares or standard options to purchase Common Shares issued to directors, officers, employees or consultants of the Company in connection with their service as directors or officers of the Company, their employment by the Company or their retention as consultants by the Company pursuant to an equity compensation program or other contract or arrangement approved by the Board of Directors of the Company (or the compensation committee of the Board of Directors of the Company), provided that all such issuances after the date hereof pursuant to this clause (A) do not, in the aggregate, exceed more than 5% of the Common Shares issued and outstanding immediately prior to the date hereof, (B) Common Shares in connection with strategic alliances, acquisitions, mergers, strategic partnerships, joint ventures, vendor and supplier arrangements and as equity kickers in lease and financing transactions, the primary purpose of which is not to raise capital, and which are approved in good faith by the Company’s Board of Directors, provided that all such issuances after the date hereof pursuant to this clause (B) do not, in the aggregate, exceed more than 10% of the Common Shares issued and outstanding immediately prior to the date hereof, (C) Common Shares issued upon the conversion or exercise of Equivalents issued prior to the date hereof, provided that such Equivalents have not been amended since the date of this Agreement to increase the number of shares issuable thereunder or to lower the exercise or conversion price thereof or otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyers, (D) Common Shares issued or issuable by reason of a dividend, stock split or other distribution on Common Shares, (E) Common Shares or standard warrants to purchase Common Shares issued to the plaintiffs in connection with the settlement of (1) the class action lawsuit filed on or about August 10, 2005 against the Company, its chief executive officer and former chief financial officer, (2) the lawsuit filed on September 27, 2006 by Sunrise Equity Partners, L.P. against the Company and its former chief executive officer and (3) the lawsuit filed on April 11, 2007 by Xxxxxx Nxxxxx X. Low and Sunrise Foundation Trust, in each case, alleging, among other things, violations of the 1934 Act (all as further described in the Company’s most recently filed Form 10-Q), provided that all such Common Shares issued after the date hereof pursuant to this clause (E) (including pursuant to the exercise of any such warrants so issued) do not, in the aggregate, exceed more than 2,000,000 Common Shares, provided further that no such warrants (i) shall contain (I) any anti-dilution or other adjustment provisions, other than provisions providing for standard adjustments in the event of stock dividends, stock splits and stock combinations or (II) an exercise price that is less than the fair market value of the Common Shares on the date such warrant is issued or (ii) are amended to increase the number of shares issuable thereunder or to lower the exercise price thereof or the terms or conditions thereof are otherwise materially changed in any manner that adversely affects any of the Buyers, (F) Conversion Shares or (G) Warrant Shares (each of the foregoing in clauses (A) through (G), collectively the “Excluded Securities”).

Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending twelve ninety (1290) months days after the Closing Effective Date of the initial Registration Statement required to be filed by the Company pursuant to Section 2(a) of the Registration Rights Agreement which covers all of the securities required to be covered thereunder (the “Restricted Period”), neither the Company nor any of the Subsidiaries shall directly or indirectly issue, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant or any option to purchase or other disposition of) any of their respective equity or equity equivalent securities, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time and under any circumstances convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, capital stock and other securities of the Company (including, without limitation, any securities of the Company or any Subsidiary which entitle the holder thereof to acquire Common Shares Stock at any time, including without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Shares Stock or other securities that entitle the holder to receive, directly or indirectly, Common SharesStock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement being referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (A) shares of Common Shares Stock or standard options to purchase Common Shares Stock issued to directors, officers, employees or consultants of the Company in connection with their service as directors or officers of the Company, their employment by the Company or their retention as consultants by the Company pursuant to an equity compensation program or other contract or arrangement approved by the Board board of Directors directors of the Company (or the compensation committee of the Board board of Directors directors of the Company), provided that all such issuances after the date hereof pursuant to this clause (A) do not, in the aggregate, exceed more than 5% of the Common Shares Stock issued and outstanding immediately prior to the date hereof, (B) shares of Common Shares in connection with strategic alliances, acquisitions, mergers, strategic partnerships, joint ventures, vendor and supplier arrangements and as equity kickers in lease and financing transactions, the primary purpose of which is not to raise capital, and which are approved in good faith by the Company’s Board of Directors, provided that all such issuances after the date hereof pursuant to this clause (B) do not, in the aggregate, exceed more than 10% of the Common Shares issued and outstanding immediately prior to the date hereof, (C) Common Shares Stock issued upon the conversion or exercise of Equivalents issued prior to the date hereof, provided that such Equivalents have not been amended since the date of this Agreement to increase the number of shares issuable thereunder or to lower the exercise or conversion price thereof or otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyers, (DC) Common Shares issued or issuable by reason of a dividend, stock split or other distribution on Common the Conversion Shares, (D) the Warrant Shares and (E) shares of Common Shares or standard Stock and warrants to purchase shares of Common Shares issued to the plaintiffs Stock in connection with strategic alliances, acquisitions, mergers, and strategic partnerships, the settlement primary purpose of (1) the class action lawsuit filed on or about August 10which is not to raise capital, 2005 against the Company, its chief executive officer and former chief financial officer, (2) the lawsuit filed on September 27, 2006 which are approved in good faith by Sunrise Equity Partners, L.P. against the Company and its former chief executive officer and (3) the lawsuit filed on April 11, 2007 by Xxxxxx X. Low and Sunrise Foundation Trust, in each case, alleging, among other things, violations of the 1934 Act (all as further described in the Company’s most recently filed Form 10-Q)Board of Directors, provided that all such Common Shares issued issuances after the date hereof pursuant to this clause (E) (including pursuant to the exercise of any such warrants so issued) do not, in the aggregateaggregate (determined on a fully-diluted basis), exceed more than 2,000,000 Common Shares, provided further that no such warrants (i) shall contain (I) any anti-dilution or other adjustment provisions, other than provisions providing for standard adjustments in the event of stock dividends, stock splits and stock combinations or (II) an exercise price that is less than the fair market value 10% of the shares of Common Shares on Stock issued and outstanding immediately prior to the date such warrant is issued or (ii) are amended to increase the number of shares issuable thereunder or to lower the exercise price thereof or the terms or conditions thereof are otherwise materially changed in any manner that adversely affects any of the Buyers, (F) Conversion Shares or (G) Warrant Shares hereof (each of the foregoing in clauses (A) through (GE), collectively the “Excluded Securities”).

Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending twelve on the earlier of (12i) months one hundred sixty five (165) days after the Closing Date or (ii) sixty (60) days after the Effective Date of the initial Registration Statement required to be filed by the Company pursuant to Section 2(a) of the Registration Rights Agreement which covers all of the securities required to be covered thereunder (the “Restricted Period”), neither the Company nor any of the Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant or any option to purchase or other disposition of) any of their respective equity or equity equivalent securities, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time and under any circumstances convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, capital stock and other securities of the Company (including, without limitation, any securities of the Company or any Subsidiary of its subsidiaries which entitle the holder thereof to acquire Common Shares Stock at any time, including without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Shares Stock or other securities that entitle the holder to receive, directly or indirectly, Common SharesStock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement being referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4(j) shall not apply in respect of the issuance of (A) Common Shares Stock or standard options to purchase Common Shares Stock issued to directors, officers, employees or consultants of the Company in connection with their service as directors or officers of the Company, their employment by the Company or their retention as consultants by the Company pursuant to an equity compensation program or other contract or arrangement approved by the Board of Directors of the Company (or the compensation committee of the Board of Directors of the Company), provided that all such issuances after the date hereof pursuant to this clause (A) do not, in the aggregate, exceed more than 510% of the Common Shares Stock issued and outstanding immediately prior to the date hereof, (B) Common Shares Stock or standard warrants (including so-called xxxxx warrants) to purchase Common Stock in connection with strategic alliances, acquisitions, mergers, strategic partnerships, joint ventures, vendor and supplier arrangements and as equity kickers in lease and financing transactions, the primary purpose of which is not to raise capital, and which are approved in good faith by the Company’s Board of Directors, provided that all such issuances after the date hereof pursuant to this clause (B) do not, in the aggregate, exceed more than 10% of the Common Shares Stock issued and outstanding immediately prior to the date hereof, (C) Common Shares shares issued upon the conversion or exercise of Equivalents issued prior to the date hereof, provided that such Equivalents have not been amended since the date of this Agreement to increase the number of shares issuable thereunder or to lower the exercise or conversion price thereof or otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyers, (D) Common Shares shares issued or issuable by reason of a dividend, stock split or other distribution on Common Shares, Stock or (E) Common Shares or standard warrants to purchase Common Shares issued to the plaintiffs in connection with the settlement of (1) the class action lawsuit filed on or about August 10, 2005 against the Company, its chief executive officer and former chief financial officer, (2) the lawsuit filed on September 27, 2006 by Sunrise Equity Partners, L.P. against the Company and its former chief executive officer and (3) the lawsuit filed on April 11, 2007 by Xxxxxx X. Low and Sunrise Foundation Trust, in each case, alleging, among other things, violations of the 1934 Act (all as further described in the Company’s most recently filed Form 10-Q), provided that all such Common Shares issued after the date hereof pursuant to this clause (E) (including pursuant to the exercise of any such warrants so issued) do not, in the aggregate, exceed more than 2,000,000 Common Shares, provided further that no such warrants (i) shall contain (I) any anti-dilution or other adjustment provisions, other than provisions providing for standard adjustments in the event of stock dividends, stock splits and stock combinations or (II) an exercise price that is less than the fair market value of the Common Shares on the date such warrant is issued or (ii) are amended to increase the number of shares issuable thereunder or to lower the exercise price thereof or the terms or conditions thereof are otherwise materially changed in any manner that adversely affects any of the Buyers, (F) Conversion Shares or (G) Warrant Shares (each of the foregoing in clauses (A) through (GE), collectively the “Excluded Securities”).

Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending twelve on the date immediately following the ninetieth (1290th) months day after the Closing Date date hereof (the “Restricted Period”), unless otherwise consented to in writing by Crede, neither the Company nor any of the its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant or of any option or right to purchase or other disposition of) any of their respective equity Common Stock or equity equivalent securities, including, without limitation, any debt, preferred stock, rights, options, warrants security or any debt or other instrument that is at any time and under any circumstances convertible into or exchangeable for, or exercisable into Common Stock or which constitutes (or would constitute but for lack of a fixed exercise or conversion or similar price or if it were not solely cash settled) a “derivative security” (as defined under the rules and regulations under Section 16 of the 0000 Xxx) or otherwise entitles the holder thereof to receive, capital stock and other securities of the Company an equity-linked or related security (including, without limitation, any securities of “equity security” (as that term is defined under Rule 405 promulgated under the Company 0000 Xxx) or which does or would otherwise constitute any Subsidiary which entitle Option or Convertible Security (as defined in the holder thereof to acquire Common Shares at any time, including without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Shares or other securities that entitle the holder to receive, directly or indirectly, Common Shares) (collectively with such capital stock or other securities of the Company, “Equivalents”Warrants) (any such issuance, offer, sale, grant, disposition or announcement being (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, the immediately preceding sentence in this Section 4(k4(j) shall not apply in respect of the issuance of (A) shares of Common Shares Stock or standard options to purchase Common Shares issued Stock or other standard equity linked securities (e.g., stock appreciation rights) to directors, officers, employees or consultants of the Company in connection with their service capacity as directors or officers of the Company, their employment by the Company or their retention as consultants by the Company such pursuant to an equity compensation program or other contract or arrangement approved by the Board of Directors of the Company Approved Share Plan (or the compensation committee of the Board of Directors of the Companyas defined below), ; provided that (1) all such issuances after the date hereof pursuant to this clause (A) do not, in the aggregate, exceed more than 5% of the Common Shares issued and outstanding immediately prior to the date hereof, (B) Common Shares in connection with strategic alliances, acquisitions, mergers, strategic partnerships, joint ventures, vendor and supplier arrangements and as equity kickers in lease and financing transactions, the primary purpose of which is not to raise capital, and which are approved in good faith by the Company’s Board of Directors, provided that all such issuances after the date hereof pursuant to this clause (B) do not, in the aggregate, exceed more than 10% of the Common Shares issued and outstanding immediately prior to the date hereof, (C) Common Shares issued upon the conversion or exercise of Equivalents issued prior to the date hereof, provided that such Equivalents have not been amended since the date of this Agreement to increase the number of shares issuable thereunder or to lower the exercise or conversion price thereof or otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyers, (D) Common Shares issued or issuable by reason of a dividend, stock split or other distribution on Common Shares, (E) Common Shares or standard warrants to purchase Common Shares issued to the plaintiffs in connection with the settlement of (1) the class action lawsuit filed on or about August 10, 2005 against the Company, its chief executive officer and former chief financial officer, (2) the lawsuit filed on September 27, 2006 by Sunrise Equity Partners, L.P. against the Company and its former chief executive officer and (3) the lawsuit filed on April 11, 2007 by Xxxxxx X. Low and Sunrise Foundation Trust, in each case, alleging, among other things, violations of the 1934 Act (all as further described in the Company’s most recently filed Form 10-Q), provided that all such Common Shares issued after the date hereof pursuant to this clause (E) (including pursuant to the exercise of any such warrants so issued) do not, in the aggregate, exceed more than 2,000,000 Common Shares, provided further that no such warrants (i) shall contain (I) any anti-dilution or other adjustment provisions, other than provisions providing for standard adjustments in the event of stock dividends, stock splits and stock combinations or (II) an exercise price that is less than the fair market value of the Common Shares on the date such warrant is issued or (ii) are amended to increase the number of shares issuable thereunder or to lower the exercise price thereof or the terms or conditions thereof are otherwise materially changed in any manner that adversely affects any of the Buyers, (F) Conversion Shares or (G) Warrant Shares (each of the foregoing in clauses (A) through (G), collectively the “Excluded Securities”).are

Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending twelve on the date immediately following the forty-five (1245) months after Trading Day anniversary of the Closing Applicable Date (the “Restricted Period”), neither the Company nor any of the its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant or any option to purchase or other disposition of) any of their respective equity or equity equivalent securities, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time and under any circumstances convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, capital stock and other securities of the Company (including, without limitation, any securities of the Company or any Subsidiary which entitle the holder thereof to acquire Common Shares Stock at any time, including without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Shares Stock or other securities that entitle the holder to receive, directly or indirectly, Common SharesStock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement being (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (A) shares of Common Shares Stock or standard options to purchase Common Shares issued Stock to directors, officers, officers or employees or consultants of the Company in connection with their service capacity as directors or officers of the Company, their employment by the Company or their retention as consultants by the Company such pursuant to an equity compensation program or other contract or arrangement approved by the Board of Directors of the Company (or the compensation committee of the Board of Directors of the Company)Approved Share Plan, provided that all such issuances after the date hereof pursuant to this clause (A) do not, in the aggregate, exceed more than 5% of the Common Shares Stock issued and outstanding immediately prior to the date hereof, (B) shares of Common Shares in connection with strategic alliances, acquisitions, mergers, strategic partnerships, joint ventures, vendor and supplier arrangements and as equity kickers in lease and financing transactions, the primary purpose of which is not to raise capital, and which are approved in good faith by the Company’s Board of Directors, provided that all such issuances after the date hereof pursuant to this clause (B) do not, in the aggregate, exceed more than 10% of the Common Shares issued and outstanding immediately prior to the date hereof, (C) Common Shares Stock issued upon the conversion or exercise of Equivalents issued prior to the date hereof, provided that such Equivalents have not been amended since the date of this Agreement to increase the number of shares issuable thereunder or to lower the exercise or conversion price thereof or otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyers, (DC) shares of Common Shares issued or issuable by reason of a dividend, stock split or other distribution on Common Shares, (E) Common Shares or Stock and standard warrants to purchase Common Shares issued to the plaintiffs Stock as equity kickers in connection with bona fide lending transactions involving only non-convertible debt, the settlement primary purpose of (1) the class action lawsuit filed on or about August 10which is not to raise capital, 2005 against the Company, its chief executive officer and former chief financial officer, (2) the lawsuit filed on September 27, 2006 which are approved in good faith by Sunrise Equity Partners, L.P. against the Company and its former chief executive officer and (3) the lawsuit filed on April 11, 2007 by Xxxxxx X. Low and Sunrise Foundation Trust, in each case, alleging, among other things, violations of the 1934 Act (all as further described in the Company’s most recently filed Form 10-Q)Board of Directors, provided that all such Common Shares issued issuances after the date hereof pursuant to this clause (E) (including pursuant to the exercise of any such warrants so issuedC) do not, in the aggregate, exceed more than 2,000,000 961,722 shares of Common Stock (including, without limitation, shares of Common Stock issuable upon exercise of such standard warrants) (adjusted for stock splits, combinations and the like), (D) the Warrant Shares, (E) the Placement Agent Warrant (as defined below), provided further that no such warrants (i) shall contain (I) any anti-dilution or other adjustment provisions, other than provisions providing for standard adjustments in Placement Agent Warrant has not been amended since the event of stock dividends, stock splits and stock combinations or (II) an exercise price that is less than the fair market value of the Common Shares on the date such warrant is issued or (ii) are amended Closing Date to increase the number of shares issuable thereunder or to lower the exercise price thereof or otherwise materially change the terms or conditions thereof are otherwise materially changed in any manner that adversely affects any of the Buyers, and (F) Conversion Shares or (G) the Placement Agent Warrant Shares (as defined below) (each of the foregoing in clauses (A) through (GF), collectively the “Excluded Securities”).. “

Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending twelve ninety (1290) months days after the Closing Date (the “Restricted Period”), neither the Company nor any of the Subsidiaries shall not directly or indirectly issue, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant or any option to purchase or other disposition of) any of their respective its equity or equity equivalent securities, including, without limitation, any convertible debt, preferred stock, rights, options, warrants or other instrument that is at any time and under any circumstances convertible by its terms into or exchangeable for, or otherwise entitles the holder thereof to receive, capital stock and other securities of the Company (including, without limitation, any securities of the Company or any Subsidiary which entitle the holder thereof to acquire Common Shares Stock at any time, including without limitation, any convertible debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Shares Stock or other securities that entitle the holder to receive, directly or indirectly, Common SharesStock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement being referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k4(g) shall not apply in respect of the issuance of (Ai) shares of Common Shares Stock sold in one or standard options more bona fide capital raising transactions at a price per share equal to purchase or greater than $0.58 (as adjusted for any stock dividend, stock split, stock combination or other similar transaction), (ii) shares of Common Shares Stock or other equity-based compensation issued to directors, officers, employees or consultants of the Company as compensation for services provided to the Company or any Subsidiary of Company; (iii) shares of Common Stock issued upon the conversion or exercise of, or in exchange for, any equity or debt securities of the Company outstanding on the date hereof; (iv) shares of Common Stock, or warrants or options to purchase Common Stock, issued in connection with their service as directors bona fide acquisitions, mergers or officers of the Company, their employment by the Company or their retention as consultants by the Company pursuant to an equity compensation program or other contract or arrangement approved by the Board of Directors of the Company (or the compensation committee of the Board of Directors of the Company), provided that all such issuances after the date hereof pursuant to this clause (A) do notsimilar transactions, in the aggregate, exceed more than 5% of the Common Shares issued and outstanding immediately prior to the date hereof, (B) Common Shares in connection with strategic alliances, acquisitions, mergers, strategic partnerships, joint ventures, vendor and supplier arrangements and as equity kickers in lease and financing transactionseach case, the primary purpose of which is not to raise capital, and which are approved in good faith by the Company’s Board ; (v) shares of Directors, provided that all such issuances after the date hereof pursuant to this clause (B) do not, in the aggregate, exceed more than 10% of the Common Shares issued and outstanding immediately prior to the date hereof, (C) Common Shares issued upon the conversion or exercise of Equivalents issued prior to the date hereof, provided that such Equivalents have not been amended since the date of this Agreement to increase the number of shares issuable thereunder or to lower the exercise or conversion price thereof or otherwise materially change the terms or conditions thereof in any manner that adversely affects any of the Buyers, (D) Common Shares Stock issued or issuable by reason to an entity as a component of a dividendany commercial relationship with such entity for the purpose of joint venture, stock split technology licensing or development activities or other distribution on Common Shares, (E) Common Shares or standard warrants to purchase Common Shares issued to the plaintiffs in connection with the settlement of (1) the class action lawsuit filed on or about August 10, 2005 against the Company, its chief executive officer and former chief financial officer, (2) the lawsuit filed on September 27, 2006 by Sunrise Equity Partners, L.P. against the Company and its former chief executive officer and (3) the lawsuit filed on April 11, 2007 by Xxxxxx X. Low and Sunrise Foundation Trustarrangements involving corporate partners, in each case, allegingthe primary purpose of which is not to raise capital; (vi) shares of Common Stock, among other thingsor warrants or options to purchase Common Stock, violations issued to lenders as yield enhancement in connection with bona fide debt financings or amendments or modifications thereof; and (vii) debt securities that are not convertible into shares of the 1934 Act (all as further described in the Company’s most recently filed Form 10-Q), provided that all such Common Shares issued after the date hereof pursuant to this clause (E) (including pursuant to the exercise of any such warrants so issued) do not, in the aggregate, exceed more than 2,000,000 Common Shares, provided further that no such warrants (i) shall contain (I) any anti-dilution Stock or other adjustment provisions, other than provisions providing for standard adjustments in the event of stock dividends, stock splits and stock combinations or (II) an exercise price that is less than the fair market value of the Common Shares on the date such warrant is issued or (ii) are amended to increase the number of shares issuable thereunder or to lower the exercise price thereof or the terms or conditions thereof are otherwise materially changed in any manner that adversely affects any of the Buyers, (F) Conversion Shares or (G) Warrant Shares (each of the foregoing in clauses (A) through (G), collectively the “Excluded Securities”)Equivalents.