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 on the date immediately following the ninety (90) day anniversary of the Closing Date (provided that such period shall be extended by the number of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of 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 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 Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(j) shall not apply in respect of the issuance of (A) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Share Plan (as 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 10% of the Common Stock issued and outstanding immediately prior to the date hereof 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 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 Warrant Shares and (D) unregistered shares of Common Stock to a Person who enters into a

Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the ninety one hundredth (90100th) day Trading Day (as defined in the Warrants) anniversary of the Closing Applicable Date (provided that such period shall be extended by the number of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of 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 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 Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the issuance of (i) (A) shares of Common Stock or (including shares of Common Stock issuable upon exercise of standard options to purchase Common Stock or standard warrants to purchase Common Stock) to directors, officers officers, the consultants expressly set forth on Schedule 4(k) attached hereto or employees of the Company Company, in each case, in their capacity as such pursuant to an Approved Share Plan (as defined below), provided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such optionsoptions and warrants) after the date hereof pursuant to this clause (A) do not, in the aggregate, exceed more than 10% of the Common Stock issued and outstanding immediately prior to the date hereof and (2) neither such options nor warrants 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 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 Warrant Conversion Shares and (D) unregistered the Warrant Shares (each of the foregoing in clauses (A) through (D), collectively the “Excluded Securities”) or (ii) up to 400,000 shares of Common Stock in the aggregate to a Person who enters into aXxxxxx 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 during the period commencing on the date hereof and ending on the date immediately following the ninety (90) day anniversary of the Closing Date (provided that such period shall be extended by the number of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not 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 security or equity equivalent securities, including, without limitation, any debt, preferred stock, rights, options, warrants equity-linked 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 related security (including, without limitation, any securities of “equity security” (as that term is defined under Rule 405 promulgated under the Company 1933 Act), any Convertible Securities, debt (with or related to equity), any preferred stock or any Subsidiary which entitle the holder thereof to acquire Common Stock at any time, including without limitation, any debt, preferred stock, purchase 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 Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent PlacementAdditional Issuance”). Notwithstanding the foregoing, this Section 4(j) shall not apply in respect of the following: (i) issuances pursuant to acquisitions, joint ventures, license arrangements, services, leasing arrangements and similar transaction arrangements; (ii) an issuance of (A) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Share Plan (as 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 10% of the Common Stock issued and outstanding immediately prior to the date hereof 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 Stock issued pursuant to agreements existing as of the date of this Agreement or upon the conversion or exercise of Equivalents Convertible Securities issued prior to the date hereof, provided that the conversion or exercise (as the case may be) of any such Equivalents have not been amended since Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder or to lower the exercise or conversion price thereof or otherwise materially change and none of the terms or conditions thereof in of any manner that adversely affects any of such Convertible Securities are otherwise materially changed or waived (whether by the Buyers, (C) the Warrant Shares and (D) unregistered shares of Common Stock to a Person who enters into aCompany or

Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the ninety (90) day anniversary days after the Effective Date of the Closing Date (provided that such period shall initial Registration Statement required to be extended filed by the number Company pursuant to Section 2(a) of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) Rights Agreement which covers all of the securities required to be covered thereunder (the “Restricted Period”), neither the Company nor any of its 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 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 Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is being referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the issuance of (A) shares of Common Stock or standard options to purchase Common Stock issued to directors, officers officers, employees or employees consultants of the Company in connection with their capacity service as such directors or officers of the Company, their employment by the Company or their retention as consultants by the Company pursuant to an Approved Share Plan equity compensation program or other contract or arrangement approved by the board of directors of the Company (as defined belowor the compensation committee of the board of directors of the Company), 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 105% of the Common Stock issued and outstanding immediately prior to the date hereof 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 Buyershereof, (B) shares of Common 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) the Warrant Shares and (DE) unregistered shares of Common Stock and warrants to purchase shares of Common Stock in connection with strategic alliances, acquisitions, mergers, and strategic partnerships, 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 (E) do not, in the aggregate (determined on a Person who enters into afully-diluted basis), exceed more than 10% of the shares of Common Stock issued and outstanding immediately prior to the date hereof (each of the foregoing in clauses (A) through (E), collectively the “Excluded Securities”).

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 on the date immediately following the ninety (90) day anniversary of days after the Closing Date (provided that such period shall be extended by the number of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of 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 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 Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is being referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(j) shall not apply in respect of the issuance of (A) shares of Common Stock or standard options to purchase Common Stock issued to directors, officers officers, employees or employees consultants of the Company in connection with their capacity service as such directors or officers of the Company, their employment by the Company or their retention as consultants by the Company pursuant to an Approved Share Plan equity compensation program or other contract or arrangement approved by the board of directors of the Company (as defined belowor the compensation committee of the board of directors of the Company), provided that (1) all such issuances of shares of Common Stock (taking into account the 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 105% of the Common Stock issued and outstanding immediately prior to the date hereof and (2as adjusted for any stock dividend, stock split, stock combination or other similar transaction) (excluding, for purposes of the foregoing 5% calculation, shares of Common Stock issuable upon exercise of such standard options are not amended to increase issued after the number of shares issuable thereunder date hereof that have been terminated or to lower the forfeited), provided further that all such issuances must be for consideration per share or have an exercise price thereof or (as the case may be) (as determined pursuant to otherwise materially change the terms or conditions thereof in any manner that adversely affects any provisions of Section 3(f)(i) of the Buyers, Series A Warrants) greater than or equal to the fair market value of the Common Stock on the date of such issuance; (B) shares of Common 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 Warrant Shares and Conversion Shares; (D) unregistered the Warrant Shares; (E) shares of Common Stock issued or issuable as a dividend on Common Stock; (F) up to 1,090,910 shares of Common Stock issuable pursuant to warrants issued to the Placement Agent in connection with the transactions contemplated by this Agreement; (G) shares of Common Stock issued by the Company solely as a penalty pursuant to the registration rights agreements entered into by the Company in connection with the Company’s September 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 (i) any such issuance after the date hereof pursuant to this clause (H) shall only be to a Person who enters into athat is, itself or through its subsidiaries, an operating company in a business synergistic with the business of the Company; (ii) all such issuances after the date hereof pursuant to this clause (H) do not, in the aggregate, exceed more than 10% of the shares of Common Stock issued and outstanding immediately prior to the date hereof (as adjusted for any stock dividend, stock split, stock combination or 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 or equal to the fair market value of the Common Stock on the date of such issuance (each of the foregoing in clauses (A) through (H), 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. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the ninety forty-five (9045) day Trading Day anniversary of the Closing Applicable Date (provided that such period shall be extended by the number of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of 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 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 Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(j) 00 shall not apply in respect of the issuance of (A) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Share Plan (as defined below)Plan, 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 105% of the Common Stock issued and outstanding immediately prior to the date hereof 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 Buyershereof, (B) shares of Common 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 Warrant Shares and (D) unregistered shares of Common Stock and standard warrants to a Person who enters into apurchase Common Stock as equity kickers in connection with bona fide lending transactions involving only non-convertible debt, 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 (C) do not, in the aggregate, exceed 850,610 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

Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the ninety (90) day anniversary of days after the Closing Date (provided that such period shall be extended by the number of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of its 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 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 Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(g) shall not apply in respect of the issuance of (Ai) shares of Common Stock sold in one or more bona fide capital raising transactions at a price per share equal to or greater than $0.58 (as adjusted for any stock dividend, stock split, stock combination or other similar transaction), (ii) shares of Common Stock or standard options to purchase Common Stock other equity-based compensation issued to directors, officers officers, employees or employees consultants of the Company in their capacity as such pursuant to an Approved Share Plan (as defined below), compensation for services 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 10% of the Common Stock issued and outstanding immediately prior to the date hereof and Company or any Subsidiary of Company; (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, (Biii) shares of Common Stock issued upon the conversion or exercise of, or in exchange for, any equity or debt securities of Equivalents issued prior to the Company outstanding on the date hereof; (iv) shares of Common Stock, provided that such Equivalents have or warrants or options to purchase Common Stock, issued in connection with bona fide acquisitions, mergers or similar transactions, in each case, the primary purpose of which is 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, raise capital; (Cv) the Warrant Shares and (D) unregistered shares of Common Stock issued or issuable to an entity as a Person who enters component of any commercial relationship with such entity for the purpose of joint venture, technology licensing or development activities or other arrangements involving corporate partners, in each case, the primary purpose of which is not to raise capital; (vi) shares of Common Stock, or warrants or options to purchase Common Stock, 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 ashares of Common Stock or Equivalents.

Additional Issuance of Securities. (a) The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the ninety sixtieth (9060th) day anniversary of after the Closing Date (provided that such period shall be extended by the number of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) date hereof (the “Restricted Period”), neither the Company nor any of 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 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 Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is being referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(j4.13(a) shall not apply in respect of the issuance of (A) unregistered shares of Common Stock or standard options to purchase Common Stock issued to directors, officers officers, employees or employees consultants of the Company in connection with their capacity service as such directors or officers of the Company, their employment by the Company or their retention as consultants by the Company pursuant to an Approved Share Plan equity compensation program or other contract or arrangement approved by the board of directors of the Company (as defined belowor the compensation committee of the board of directors of the Company), provided that (1) all such issuances of shares of Common Stock (taking into account the 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 105% of the Common Stock issued and outstanding immediately prior to the date hereof and (2) as adjusted for any stock dividend, stock split, stock combination or other similar transaction occurring after the date hereof), provided further that all such options are not amended to increase the number of shares issuable thereunder issuances must be for consideration per share or to lower the have an exercise price thereof (as the case may be) greater than or equal to otherwise materially change the terms or conditions thereof in any manner that adversely affects any fair market value of the Buyers, Common Stock on the date of such issuance; (B) shares of Common 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 Warrant Shares and shares of Preferred Stock issuable pursuant to Section 8 of the Certificate of Designation; (D) the Underlying Shares; (E) the Warrant Shares; (F) unregistered shares of Common Stock issued in connection with strategic transactions (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 (i) any such issuance after the date hereof pursuant to this clause (F) shall only be to a Person who enters into athat is, itself or through its subsidiaries, an operating company in a business synergistic with the business of the Company; (ii) all such issuances after the date hereof pursuant to this clause (F) do not, in the aggregate, exceed more than 20% of the shares of Common 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) and (iii) all such issuances after the date hereof pursuant to this clause (F) must have a price per share greater than or equal to the fair market value of the Common Stock on the date of such issuance.

Additional Issuance of Securities. The Company agrees that for during the period commencing on the date hereof and ending on the date immediately following the ninety (90) day anniversary of the Closing Date (provided that such period shall be extended by the number of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall not 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 security or equity equivalent securities, including, without limitation, any debt, preferred stock, rights, options, warrants equity-linked 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 related security (including, without limitation, any securities of “equity security” (as that term is defined under Rule 405 promulgated under the Company 1933 Act), any Convertible Securities, debt (with or related to equity), any preferred stock or any Subsidiary which entitle the holder thereof to acquire Common Stock at any time, including without limitation, any debt, preferred stock, purchase 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 Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent PlacementAdditional Issuance”). Notwithstanding the foregoing, this Section 4(j) shall not apply in respect of the following: (i) issuances pursuant to acquisitions, joint ventures, license arrangements, services, leasing arrangements and similar transaction arrangements; (ii) an issuance of (A) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Share Plan (as 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 10% of the Common Stock issued and outstanding immediately prior to the date hereof 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 Stock issued pursuant to agreements existing as of the date of this Agreement or upon the conversion or exercise of Equivalents Convertible Securities issued prior to the date hereof, provided that the conversion or exercise (as the case may be) of any such Equivalents have not been amended since Convertible Security is made solely pursuant to the conversion or exercise (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement Agreement, the conversion or exercise price of any such Convertible Securities is not lowered, none of such Convertible Securities are (nor is any provision of any such Convertible Securities) amended or waived in any manner (whether by the Company or the holder thereof) to increase the number of shares issuable thereunder or to lower the exercise or conversion price thereof or otherwise materially change and none of the terms or conditions thereof of any such Convertible Securities are otherwise materially changed or waived (whether by the Company or the holder thereof) in any manner that adversely affects any of the Buyers, Buyer; (Ciii) the Warrant Shares issuance of compensatory equity awards to employees, directors and other third parties under an Approved Share Plan; provided that provisions of such Approved Share Plan that were in effect on the date immediately prior to the date of this Agreement remain in effect without amendment in any manner that adversely affects any Buyer, including any amendment to increase the number of shares issuable thereunder; (Div) unregistered the issuance of shares of Common Stock (or pre-funded warrants) for an aggregate purchase price not to a Person who enters into aexceed $800,000, provided that the following conditions are met:

Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the ninety forty-five (9045) day Trading Day anniversary of the Closing Applicable Date (provided that such period shall be extended by the number of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of 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 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 Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the issuance of (A) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Share Plan (as defined below)Plan, 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 105% of the Common Stock issued and outstanding immediately prior to the date hereof 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 Buyershereof, (B) shares of Common 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 Warrant Shares and (D) unregistered shares of Common Stock and standard warrants to a Person who enters into apurchase Common Stock as equity kickers in connection with bona fide lending transactions involving only non-convertible debt, 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 (C) do not, in the aggregate, exceed 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 that such Placement Agent Warrant has not been amended since the 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 in any manner that adversely affects any of the Buyers, and (F) the Placement Agent Warrant Shares (as defined below) (each of the foregoing in clauses (A) through (F), collectively the “Excluded Securities”). “

Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the ninety one hundred twenty (90120) day Trading Day (as defined in the Warrants) anniversary of the Closing Applicable Date (provided that such period shall be extended by the number of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of 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 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 Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the issuance of (A) shares of Common Stock or (including upon exercise of standard options to purchase Common Stock Stock) to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Share Plan (as 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 105% of the Common Stock issued and outstanding immediately prior to the date hereof 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 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 Warrant Shares and Conversion Shares, (D) unregistered the Warrant Shares, (E) up to 855,000 restricted shares of Common Stock issuable to Renergix Wind LLC under the terms of that certain Joint Development Agreement dated effective as of January 1, 2009, provided that such shares of Common Stock are issued solely in accordance with the terms of such agreement, such agreement is not amended to increase the number of shares issuable thereunder and the terms or conditions of such agreement are not otherwise materially changed in any manner that adversely affects any of the Buyers and (F) the Placement Agent Warrant Shares (each of the foregoing in clauses (A) through (F), 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 who enters 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 aor 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 on the date immediately following the ninety (90) day anniversary days after the Effective Date (as defined in the Registration Rights Agreement) of the Closing Date (provided that such period shall initial registration statement required to be extended filed by the number Company pursuant the terms of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) Rights Agreement which covers all of the securities required to be covered thereunder (the “Restricted Period”), neither the Company nor any of its 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 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 Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is being referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(j5(h) shall not apply in respect of the issuance of (A) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Share Plan (as 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 10% of the Common Stock issued and outstanding immediately prior to the date hereof 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 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 Excluded Securities. For purposes of this Agreement to increase Agreement, the number of shares issuable thereunder or to lower following terms shall have 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 Warrant Shares and (D) unregistered shares of Common Stock to a Person who enters into afollowing meanings:

Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the ninety sixty (9060) day Trading Day (as defined in the Warrants) anniversary of the Closing Applicable Date (provided that such period shall be extended by the number of days Trading Days during such period and any extension thereof contemplated by this proviso on which the 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 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 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 Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the issuance of (A) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Share Plan (as 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 105% of the Common Stock issued and outstanding immediately prior to the date hereof 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 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 (C) the Warrant Shares and (Deach of the foregoing in clauses (A) unregistered through (C), 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 a Person who enters into apurchase 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 Company agrees that for the period commencing on the date hereof and ending on the date immediately following the ninety earlier of (90i) day anniversary of one hundred sixty five (165) days after the Closing Date or (provided that such period shall ii) sixty (60) days after the Effective Date of the initial Registration Statement required to be extended filed by the number Company pursuant to Section 2(a) of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) Rights Agreement which covers all of the securities required to be covered thereunder (the “Restricted Period”), neither the Company nor any of its 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 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 Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is being referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(j) shall not apply in respect of the issuance of (A) shares of Common Stock or standard options to purchase Common Stock issued to directors, officers officers, employees or employees consultants of the Company in connection with their capacity service as such directors or officers of the Company, their employment by the Company or their retention as consultants by the Company pursuant to an Approved Share Plan equity compensation program or other contract or arrangement approved by the Board of Directors of the Company (as defined belowor the compensation committee of the Board of Directors of the Company), 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 10% of the Common Stock issued and outstanding immediately prior to the date hereof 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 Buyershereof, (B) shares of Common 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 Stock issued and outstanding immediately prior to the date hereof, (C) 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, (CD) shares issued or issuable by reason of a dividend, stock split or other distribution on Common Stock or (E) the Warrant Shares and (Deach of the foregoing in clauses (A) unregistered shares of Common Stock to a Person who enters into athrough (E), collectively the “Excluded Securities”).

Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the ninety twelve (9012) day anniversary of months after the Closing Date (provided that such period shall be extended by the number of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of its 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 Stock 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 Stock Shares or other securities that entitle the holder to receive, directly or indirectly, Common StockShares) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is being referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the issuance of (A) shares of Common Stock Shares or standard options to purchase Common Stock Shares issued to directors, officers officers, employees or employees consultants of the Company in connection with their capacity service as such directors or officers of the Company, their employment by the Company or their retention as consultants by the Company pursuant to an Approved Share Plan equity compensation program or other contract or arrangement approved by the Board of Directors of the Company (as defined belowor the compensation committee of the Board of Directors of the Company), 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 105% of the Common Stock Shares issued and outstanding immediately prior to the date hereof 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 Buyershereof, (B) shares 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 Stock 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, (CD) 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 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 and (Deach of the foregoing in clauses (A) unregistered shares of Common Stock to a Person who enters into athrough (G), collectively the “Excluded Securities”).

Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the ninety twelve (9012) day anniversary of months after the Closing Date (provided that such period shall be extended by the number of days during such period and any extension thereof contemplated by this proviso on which the Registration Statement is not effective or any prospectus contained therein is not available for use) (the “Restricted Period”), neither the Company nor any of its 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 Stock 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 Stock Shares or other securities that entitle the holder to receive, directly or indirectly, Common StockShares) (collectively with such capital stock or other securities of the Company, “Equivalents”) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is being referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(j4(k) shall not apply in respect of the issuance of (A) shares of Common Stock Shares or standard options to purchase Common Stock Shares issued to directors, officers officers, employees or employees consultants of the Company in connection with their capacity service as such directors or officers of the Company, their employment by the Company or their retention as consultants by the Company pursuant to an Approved Share Plan equity compensation program or other contract or arrangement approved by the Board of Directors of the Company (as defined belowor the compensation committee of the Board of Directors of the Company), 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 105% of the Common Stock Shares issued and outstanding immediately prior to the date hereof 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 Buyershereof, (B) shares 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 Stock 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, (CD) 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 and (Deach of the foregoing in clauses (A) unregistered shares of Common Stock to a Person who enters into athrough (G), collectively the “Excluded Securities”).