Common use of Future Financings Clause in Contracts

Future Financings. From the date hereof until 90 days after the Effective Date, other than as contemplated by this Agreement, neither the Company nor any Subsidiary (with respect to Common Stock Equivalents) shall issue or sell any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock. Notwithstanding anything herein to the contrary, the 90 day period set forth in this Section 4.14 shall be extended for the number of Trading Days during such period in which (i) trading in the Common Stock is suspended by any Trading Market, or (ii) following the Effective Date, the Registration Statement is not effective or the prospectus included in the Registration Statement may not be used by each Purchaser for the resale of the Underlying Shares. Notwithstanding anything to the contrary herein, this Section 4.14 shall not apply in respect of an Exempt Issuance and the reasonable and customary issuance of Common Stock or Common Stock Equivalents to service providers of the Company, the primary purpose of which is not to raise capital. In addition to the limitations set forth herein, from the date hereof until such time as no Purchaser holds any of the Securities, the Company shall be prohibited from effecting or enter into an agreement to effect any Subsequent Financing involving any security which is not a Junior Security as defined in the Certificate of Designation or pari passu with the Preferred Stock, or any "Variable Rate Transaction" (as defined below). The term "Variable Rate Transaction" shall mean a transaction in which the Company issues or sells (i) any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional shares of Common Stock either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock; provided that the existence of anti-dilution provisions attached to any such securities shall not alone make a transaction a Variable Rate Transaction. In addition, unless Shareholder Approval has been obtained and deemed effective in accordance with Section 4.10(c), the Company shall not make any issuance whatsoever of Common Stock or Common Stock Equivalents which would cause any adjustment of the Set Price to the extent the holders of Preferred Stock would not be permitted, pursuant to Section 5(a)(iii) of the Certificate of Designations, to convert their respective outstanding Preferred Stock and Warrants in full.

Future Financings. From the date hereof until 90 120 days after the Effective Date, other than as contemplated by this Agreement, neither the Company nor any Subsidiary (with respect to shall issue additional shares of Capital Shares or Capital Shares Equivalents for an effective price per share of Common Stock Equivalents) shall issue or sell any Common Stock or Common Stock Equivalents entitling any Person to acquire shares less than 140% of Common Stockthe then Set Price. Notwithstanding anything herein to the contrary, the 90 120 day period set forth in this Section 4.14 4.7 shall be extended for the number of Trading Days during such period in which (iy) trading in the Common Stock is suspended by any Trading Principal Market, or (iiz) following the Effective Date, the Registration Statement is not effective or the prospectus included in the Registration Statement may not be used by each Purchaser the Purchasers for the resale of the Underlying Shares. Notwithstanding anything to the contrary herein, For purposes of this Section 4.14 shall not apply in respect of an Exempt Issuance and the reasonable and customary issuance of Common Stock or Common Stock Equivalents to service providers of the Company4.7, the primary purpose of which is not to raise capital. In addition to the limitations set forth herein, from the date hereof until such time as no Purchaser holds any of the Securities, the Company shall be prohibited from effecting or enter into an agreement to effect any Subsequent Financing involving any security which is not a Junior Security as defined in the Certificate of Designation or pari passu with the Preferred Stock, or any "Variable Rate Transaction" (as defined below)Transactions and MFN Transactions shall automatically be deemed to be issued at an effective price per share less than the Set Price. The term "Variable Rate Transaction" shall mean a transaction in which the Company issues or sells (i) any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional shares of Common Stock either (Ax) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities, or (By) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock; provided that . The term "MFN Transaction" shall mean a transaction in which the existence Company issues or sells any securities in a capital raising transaction or series of anti-dilution provisions attached related transactions which grants to an investor the right to receive additional shares based upon future transactions of the Company on terms more favorable than those granted to the such investor in such offering. Notwithstanding anything to the contrary herein, this Section 4.7 shall not apply to the following (a) the granting of options to employees, officers and directors of the Company pursuant to any such securities shall not alone make stock option plan duly adopted by a transaction a Variable Rate Transaction. In addition, unless Shareholder Approval has been obtained and deemed effective in accordance with Section 4.10(c), majority of the non-employee members of the Board of Directors of the Company shall not make any or a majority of the members of a committee of non-employee directors established for such purpose or the issuance whatsoever of Common Stock or Common Stock Equivalents which would cause any adjustment to employees of the Set Price Company in lieu of cash compensation which issuance has been voted and agreed to by a majority of the extent non-employee members of the holders Board of Preferred Stock would not be permittedDirectors of the Company or a majority of the members of a committee of non-employee directors established for such purpose, or (b) the exercise of the Debenture or any other security issued by the Company in connection with the offer and sale of this Company's securities pursuant to Section 5(a)(iiithis Agreement, or (c) the exercise of or conversion of any Convertible Securities, options, or warrants issued and outstanding on the Closing Date, or (d) acquisitions or strategic investments, the primary purpose of which is not to raise capital, or (e) financings undertaken with the prior consent of all of the Certificate of DesignationsPurchasers, to convert their respective outstanding Preferred Stock and Warrants in fullwhich consent shall not unreasonably be withheld.

Future Financings. From the date hereof until 90 days after the Effective Date, other than as contemplated by this Agreement, neither the Company nor any Subsidiary (with respect to Common Stock Equivalents) shall issue or sell any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock. Notwithstanding anything herein to the contrary, the 90 day period set forth in this Section 4.14 shall be extended for the number of Trading Days during such period in which (i) trading in the Common Stock is suspended by any Trading Market, or (ii) following the Effective Date, the Registration Statement is not effective or the prospectus included in the Registration Statement may not be used by each Purchaser for the resale of the Underlying Shares. Notwithstanding anything to the contrary herein, this Section 4.14 shall not apply in respect of an Exempt Issuance and the reasonable and customary issuance of Common Stock or Common Stock Equivalents to service providers of the Company, the primary purpose of which is not to raise capitalIssuance. In addition to the limitations set forth herein, from the date hereof until such time as no Purchaser holds any of the Securities, the Company shall be prohibited from effecting or enter into an agreement to effect any Subsequent Financing involving any security which is not a Junior Security as defined in the Certificate of Designation or pari passu with the Preferred StockDesignation, or any "“Variable Rate Transaction" ” or an “MFN Transaction” (each as defined below). The term "“Variable Rate Transaction" ” shall mean a transaction in which the Company issues or sells (i) any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional shares of Common Stock either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock; provided that the existence of anti-dilution provisions attached to any such securities . The term “MFN Transaction” shall not alone make mean a transaction a Variable Rate Transaction. In addition, unless Shareholder Approval has been obtained and deemed effective in accordance with Section 4.10(c), which the Company shall not make issues or sells any issuance whatsoever securities in a capital raising transaction or series of Common Stock or Common Stock Equivalents related transactions which would cause any adjustment grants to an investor the right to receive additional shares based upon future transactions of the Set Price Company on terms more favorable than those granted to the extent the holders of Preferred Stock would not be permitted, pursuant to Section 5(a)(iii) of the Certificate of Designations, to convert their respective outstanding Preferred Stock and Warrants such investor in fullsuch offering.

Future Financings. From the date hereof until 90 days after the Effective Date, other than as contemplated by this Agreement, neither the Company nor any Subsidiary (with respect to Common Stock Equivalents) shall issue or sell any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock. Notwithstanding anything herein to the contrary, the 90 day period set forth in this Section 4.14 shall be extended for the number of Trading Days during such period in which (i) trading in the Common Stock is suspended by any Trading Market, or (ii) following the Effective Date, the Registration Statement is not effective or the prospectus included in the Registration Statement may not be used by each Purchaser for the resale of the Underlying Shares. Notwithstanding anything to the contrary herein, this Section 4.14 shall not apply in respect of an Exempt Issuance and the reasonable and customary issuance of Common Stock or Common Stock Equivalents to service providers of the Company, the primary purpose of which is not to raise capitalIssuance. In addition to the limitations set forth herein, from the date hereof until such time as no Purchaser holds any of the SecuritiesPreferred Stock, the Company shall be prohibited from effecting or enter into an agreement to effect any Subsequent Financing involving any security which is not a Junior Security as defined in the Certificate of Designation or pari passu with the Preferred Stock, or any "“Variable Rate Transaction" ” or an “MFN Transaction” (each as defined below). The term "“Variable Rate Transaction" ” shall mean a transaction in which the Company issues or sells (i) any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional shares of Common Stock either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock; provided that the existence of anti-dilution provisions attached to any such securities . The term “MFN Transaction” shall not alone make mean a transaction in which the Company issues or sells any securities in a Variable Rate Transactioncapital raising transaction or series of related transactions which grants to an investor the right to receive additional shares based upon future transactions of the Company on terms more favorable than those granted to such investor in such offering. In addition, unless Shareholder Approval has been obtained and deemed effective in accordance with Section 4.10(c), the Company shall not make any issuance whatsoever of Common Stock or Common Stock Equivalents which would cause any adjustment of the Set Price to the extent the holders of Preferred Stock would not be permitted, pursuant to Section 5(a)(iii) of the Certificate of Designations, to convert their respective outstanding Preferred Stock and Warrants in full.

Future Financings. From the date hereof until 90 days after the Effective Date, other than as contemplated by this Agreement, neither the Company nor any Subsidiary (with respect to Common Stock Equivalents) shall issue or sell any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock. Notwithstanding anything herein to the contrary, the 90 90-day period set forth in this Section 4.14 shall be extended for the number of Trading Days during such period in which (i) trading in the Common Stock is suspended by any Trading Market, or (ii) following the Effective Date, the Registration Statement is not effective or the prospectus included in the Registration Statement may not be used by each Purchaser for the resale of the Underlying Shares. Notwithstanding anything to the contrary herein, this Section 4.14 shall not apply in respect of an Exempt Issuance and the reasonable and customary issuance of Common Stock or Common Stock Equivalents to service providers of the Company, the primary purpose of which is not to raise capitalIssuance. In addition to the limitations set forth herein, from the date hereof until such time as no Purchaser holds any of the Securities, and except for the sale of additional Notes and related Warrants after the Closing as contemplated by Section 2.1, the Company shall be prohibited from effecting or enter into an agreement to effect any Subsequent Financing involving (i) any security which is not financing prohibited by the Notes, as amended from time to time, (ii) a Junior Security as defined in the Certificate of Designation or pari passu with the Preferred Stock, or any "“Variable Rate Transaction" ” or (iii) an “MFN Transaction” (each as defined below). The term "“Variable Rate Transaction" ” shall mean a transaction in which the Company issues or sells (i) any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional shares of Common Stock either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock; provided that the existence of anti-dilution provisions attached to any such securities . The term “MFN Transaction” shall not alone make mean a transaction a Variable Rate Transaction. In addition, unless Shareholder Approval has been obtained and deemed effective in accordance with Section 4.10(c), which the Company shall not make issues or sells any issuance whatsoever securities in a capital raising transaction or series of Common Stock or Common Stock Equivalents related transactions which would cause any adjustment grants to an investor the right to receive additional shares based upon future transactions of the Set Price Company on terms more favorable than those granted to the extent the holders of Preferred Stock would not be permitted, pursuant to Section 5(a)(iii) of the Certificate of Designations, to convert their respective outstanding Preferred Stock and Warrants such investor in full.such offering. 4.15

Future Financings. From the date hereof until 90 days after the Effective Date, other than as contemplated by this Agreement, neither the Company nor any Subsidiary (with respect to Common Stock Equivalents) shall issue or sell any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock. Notwithstanding anything herein to the contrary, the 90 day period set forth in this Section 4.14 shall be extended for the number of Trading Days during such period in which (i) trading in the Common Stock is suspended by any Trading Principal Market, or (ii) following the Effective Date, the Registration Statement is not effective or the prospectus included in the Registration Statement may not be used by each Purchaser for the resale of the Underlying Shares. Notwithstanding anything to the contrary herein, this Section 4.14 shall not apply in respect of an Exempt Issuance and the reasonable and customary issuance of Common Stock or Common Stock Equivalents to service providers of the Company, the primary purpose of which is not to raise capitalIssuance. In addition to the limitations set forth herein, from the date hereof until such time as no Purchaser holds any of the SecuritiesPreferred Stock, the Company shall be prohibited from effecting or enter into an agreement to effect any Subsequent Financing involving any security which is not a Junior Security as defined in the Certificate of Designation or pari passu with the Preferred Stock, or any "Variable Rate Transaction" or an "MFN Transaction" (each as defined below). The term "Variable Rate Transaction" shall mean a transaction in which the Company issues or sells (i) any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional shares of Common Stock either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock; provided that the existence of anti-dilution provisions attached to any such securities . The term "MFN Transaction" shall not alone make mean a transaction in which the Company issues or sells any securities in a Variable Rate Transactioncapital raising transaction or series of related transactions which grants to an investor the right to receive additional shares based upon future transactions of the Company on terms more favorable than those granted to such investor in such offering. In addition, unless Shareholder Approval has been obtained and deemed effective in accordance with Section 4.10(c), the Company shall not make any issuance whatsoever of Common Stock or Common Stock Equivalents which would cause any adjustment of the Set Price to the extent the holders of Preferred Stock would not be permitted, pursuant to Section 5(a)(iii) of the Certificate of Designations, to convert their respective outstanding Preferred Stock and Warrants in full.

Future Financings. From the date hereof until 90 180 days after the Effective Date, other than as contemplated by this Agreement, neither the Company nor any Subsidiary (with respect to Common Stock Equivalents) shall issue or sell any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock. Notwithstanding anything herein to the contrary, the 90 180 day period set forth in this Section 4.14 shall be extended for the number of Trading Days during such period in which (i) trading in the Common Stock is suspended by any Trading Market, or (ii) following the Effective Date, the Registration Statement is not effective or the prospectus included in the Registration Statement may not be used by each Purchaser for the resale of the Underlying Shares. Notwithstanding anything to the contrary herein, this Section 4.14 shall not apply in respect of an Exempt Issuance and the reasonable and customary issuance of Common Stock or Common Stock Equivalents to service providers of the Company, the primary purpose of which is not to raise capitalIssuance. In addition to the limitations set forth herein, from the date hereof until such time as no Purchaser holds any of the Securities, the Company shall be prohibited from effecting or enter into an agreement to effect any Subsequent Financing involving any security which is not a Junior Security as defined in the Certificate of Designation or pari passu with the Preferred StockDesignations, or any "Variable Rate Transaction" or an "MFN Transaction" (each as defined below). The term "Variable Rate Transaction" shall mean a transaction in which the Company issues or sells (i) any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional shares of Common Stock either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock; provided that the existence of anti-dilution provisions attached to any such securities . The term "MFN Transaction" shall not alone make mean a transaction a Variable Rate Transaction. In addition, unless Shareholder Approval has been obtained and deemed effective in accordance with Section 4.10(c), which the Company shall not make issues or sells any issuance whatsoever securities in a capital raising transaction or series of Common Stock or Common Stock Equivalents related transactions which would cause any adjustment grants to an investor the right to receive additional shares based upon future transactions of the Set Price Company on terms more favorable than those granted to the extent the holders of Preferred Stock would not be permitted, pursuant to Section 5(a)(iii) of the Certificate of Designations, to convert their respective outstanding Preferred Stock and Warrants such investor in fullsuch offering.

Future Financings. From the date hereof until 90 days after the Effective Date, other than as contemplated by this Agreement, neither the Company nor any Subsidiary (with respect to Common Stock Equivalents) shall issue or sell any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock. Notwithstanding anything herein to the contrary, the 90 day period set forth in this Section 4.14 shall be extended for the number of Trading Days during such period in which (i) trading in the Common Stock is suspended by any Trading Market, or (ii) following the Effective Date, the Registration Statement is not effective or the prospectus included in the Registration Statement may not be used by each Purchaser for the resale of the Underlying Shares. Notwithstanding anything to the contrary herein, this Section 4.14 shall not apply in respect of an Exempt Issuance and the reasonable and customary issuance of Common Stock or Common Stock Equivalents to service providers of the Company, the primary purpose of which is not to raise capitalIssuance. In addition to the limitations set forth herein, from the date hereof until such time as no Purchaser holds any of the Securities, the Company shall be prohibited from effecting or enter into an agreement to effect any Subsequent Financing involving any security which is not a Junior Security as defined in the Certificate of Designation or pari passu with the Preferred StockDesignation, or any "Variable Rate Transaction" or an "MFN Transaction" (each as defined below). The term "Variable Rate Transaction" shall mean a transaction in which the Company issues or sells (i) any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional shares of Common Stock either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock; provided that the existence of anti-dilution provisions attached to any such securities . The term "MFN Transaction" shall not alone make mean a transaction a Variable Rate Transaction. In addition, unless Shareholder Approval has been obtained and deemed effective in accordance with Section 4.10(c), which the Company shall not make issues or sells any issuance whatsoever securities in a capital raising transaction or series of Common Stock or Common Stock Equivalents related transactions which would cause any adjustment grants to an investor the right to receive additional shares based upon future transactions of the Set Price Company on terms more favorable than those granted to the extent the holders of Preferred Stock would not be permitted, pursuant to Section 5(a)(iii) of the Certificate of Designations, to convert their respective outstanding Preferred Stock and Warrants such investor in fullsuch offering.

Future Financings. From the date hereof until 90 days after the Effective Date, other than as contemplated by this Agreement, neither the Company nor any Subsidiary (with respect to Common Stock Equivalents) shall issue or sell any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock, with the express exception of the proposed acquisition of SVI Hotel Corporation and all financing transactions directly related thereto. Notwithstanding anything herein to the contrary, the 90 day period set forth in this Section 4.14 shall be extended for the number of Trading Days during such period in which (i) trading in the Common Stock is suspended by any Trading Market, or (ii) following the Effective Date, the Registration Statement is not effective or the prospectus included in the Registration Statement may not be used by each the Purchaser for the resale of the Underlying Shares. Notwithstanding anything to the contrary herein, this Section 4.14 shall not apply in respect of an Exempt Issuance and the reasonable and customary issuance of Common Stock or Common Stock Equivalents to service providers of the Company, the primary purpose of which is not to raise capitalIssuance. In addition to the limitations set forth herein, from the date hereof until such time as no the Purchaser holds does not hold any of the SecuritiesPreferred Stock, the Company shall be prohibited from effecting or enter into an agreement to effect any Subsequent Financing involving any security which is not a Junior Security as defined in the Certificate of Designation or pari passu with the Preferred Stock, or any "“Variable Rate Transaction" ” or an “MFN Transaction” (each as defined below). The term "“Variable Rate Transaction" ” shall mean a transaction in which the Company issues or sells (i) any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional shares of Common Stock either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock; provided that the existence of anti-dilution provisions attached to any such securities . The term “MFN Transaction” shall not alone make mean a transaction in which the Company issues or sells any securities in a Variable Rate Transactioncapital raising transaction or series of related transactions which grants to an investor the right to receive additional shares based upon future transactions of the Company on terms more favorable than those granted to such investor in such offering. In addition, unless Shareholder Approval has been obtained and deemed effective in accordance with Section 4.10(c), the Company shall not make any issuance whatsoever of Common Stock or Common Stock Equivalents which would cause any adjustment of the Set Price to the extent the holders of Preferred Stock would not be permitted, pursuant to Section 5(a)(iii5(a) (iii) of the Certificate of Designations, to convert their respective outstanding Preferred Stock and Warrants in full.

Future Financings. From the date hereof until 90 days after the Effective Date, other than as contemplated by this Agreement, neither the Company nor any Subsidiary (with respect to Common Stock Equivalents) shall issue or sell any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock. Notwithstanding anything herein to the contrary, the 90 90-day period set forth in this Section 4.14 shall be extended for the number of Trading Days during such period in which (i) trading in the Common Stock is suspended by any Trading Market, or (ii) following the Effective Date, the Registration Statement is not effective or the prospectus included in the Registration Statement may not be used by each Purchaser for the resale of the Underlying Shares. Notwithstanding anything to the contrary herein, this Section 4.14 shall not apply in respect of an Exempt Issuance and the reasonable and customary issuance of Common Stock or Common Stock Equivalents to service providers of the Company, the primary purpose of which is not to raise capitalIssuance. In addition to the limitations set forth herein, from the date hereof until such time as no Purchaser holds any of the Securities, and except for the sale of additional Notes and related Warrants after the Closing as contemplated by Section 2.1, the Company shall be prohibited from effecting or enter into an agreement to effect any Subsequent Financing involving (i) any security which is not financing prohibited by the Notes, as amended from time to time, (ii) a Junior Security as defined in the Certificate of Designation or pari passu with the Preferred Stock, or any "“Variable Rate Transaction" ” or (iii) an “MFN Transaction” (each as defined below). The term "“Variable Rate Transaction" ” shall mean a transaction in which the Company issues or sells (i) any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional shares of Common Stock either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock; provided that the existence of anti-dilution provisions attached to any such securities . The term “MFN Transaction” shall not alone make mean a transaction a Variable Rate Transaction. In addition, unless Shareholder Approval has been obtained and deemed effective in accordance with Section 4.10(c), which the Company shall not make issues or sells any issuance whatsoever securities in a capital raising transaction or series of Common Stock or Common Stock Equivalents related transactions which would cause any adjustment grants to an investor the right to receive additional shares based upon future transactions of the Set Price Company on terms more favorable than those granted to the extent the holders of Preferred Stock would not be permitted, pursuant to Section 5(a)(iii) of the Certificate of Designations, to convert their respective outstanding Preferred Stock and Warrants such investor in fullsuch offering.

Future Financings. From the date hereof until 90 180 days after the Effective Date, other than as contemplated by this Agreement, neither the Company nor any Subsidiary (with respect to Common Stock Equivalents) shall issue or sell any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock. Notwithstanding anything herein to the contrary, the 90 180 day period set forth in this Section 4.14 shall be extended for the number of Trading Days during such period in which (i) trading in the Common Stock is suspended by any Trading Market, or (ii) following the Effective Date, the Registration Statement is not effective or the prospectus included in the Registration Statement may not be used by each Purchaser for the resale of the Underlying Shares. Notwithstanding anything to the contrary herein, this Section 4.14 shall not apply in respect of an Exempt Issuance and the reasonable and customary issuance of Common Stock or Common Stock Equivalents to service providers of the Company, the primary purpose of which is not to raise capitalIssuance. In addition to the limitations set forth herein, from the date hereof until such time as no Purchaser holds any of the Securities, the Company shall be prohibited from effecting or enter into an agreement to effect any Subsequent Financing involving any security which is not a Junior Security as defined in the Certificate of Designation or pari passu with the Preferred StockDesignation, or any "Variable Rate Transaction" or an "MFN Transaction" (each as defined below). The term "Variable Rate Transaction" shall mean a transaction in which the Company issues or sells (i) any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional shares of Common Stock either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock; provided that the existence of anti-dilution provisions attached to any such securities . The term "MFN Transaction" shall not alone make mean a transaction a Variable Rate Transaction. In addition, unless Shareholder Approval has been obtained and deemed effective in accordance with Section 4.10(c), which the Company shall not make issues or sells any issuance whatsoever securities in a capital raising transaction or series of Common Stock or Common Stock Equivalents related transactions which would cause any adjustment grants to an investor the right to receive additional shares based upon future transactions of the Set Price Company on terms more favorable than those granted to the extent the holders of Preferred Stock would not be permitted, pursuant to Section 5(a)(iii) of the Certificate of Designations, to convert their respective outstanding Preferred Stock and Warrants such investor in fullsuch offering.

Future Financings. From the date hereof until 90 days after the Effective Date, other than as contemplated by this Agreement, neither the Company nor any Subsidiary (with respect to Common Stock Equivalents) shall issue or sell any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock. Notwithstanding anything herein to the contrary, the 90 day period set forth in this Section 4.14 shall be extended for the number of Trading Days during such period in which (i) trading in the Common Stock is suspended by any Trading Market, or (ii) following the Effective Date, the Registration Statement is not effective or the prospectus included in the Registration Statement may not be used by each Purchaser for the resale of the Underlying Shares. Notwithstanding anything to the contrary herein, this Section 4.14 shall not apply in respect of an Exempt Issuance and Issuance, the reasonable and customary issuance of Common Stock or Common Stock Equivalents to service providers or customers of the Company, the primary purpose of which is not to raise capitalcapital and the item set forth on Schedule 4.14. In addition to the limitations set forth herein, from the date hereof until such time as no Purchaser holds any of the Securities, the Company shall be prohibited from effecting or enter into an agreement to effect any Subsequent Financing involving any security which is not a Junior Security as defined in the Certificate of Designation or pari passu with the Preferred Stockinvolving, or any "Variable Rate Transaction" (as defined below). The term "Variable Rate Transaction" shall mean a transaction in which the Company issues or sells (i) any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional shares of Common Stock either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securitiessecurities (including any equity line type structures), or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock; provided that the existence of anti-dilution provisions attached to any such securities shall not alone make a transaction a Variable Rate Transaction. In addition, unless Shareholder Approval has been obtained and deemed effective in accordance with Section 4.10(c), the Company shall not make any issuance whatsoever of Common Stock or Common Stock Equivalents which would cause any Equivalents, excluding Exempt Issuances for an effective per share of Common Stock price of less than $1.55, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Set Price to Common Stock that occur after the extent the holders date of Preferred Stock would not be permitted, pursuant to Section 5(a)(iii) of the Certificate of Designations, to convert their respective outstanding Preferred Stock and Warrants in fullthis Agreement.

Future Financings. From the date hereof until 90 60 days ----------------- after the Effective Date, other than as contemplated by this Agreement, neither the Company nor any Subsidiary (with respect to Common Stock Equivalents) shall issue or sell any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock. Notwithstanding anything herein to the contrary, the 90 60 day period set forth in this Section 4.14 shall ------------ be extended for the number of Trading Days during such period in which (i) trading in the Common Stock is suspended by any Trading Principal Market, or (ii) following the Effective Date, the Registration Statement is not effective or the prospectus included in the Registration Statement may not be used by each Purchaser for the resale of the Underlying Shares. Notwithstanding anything to the contrary herein, this Section ------- 4.14 shall not apply in respect of an Exempt Issuance and the reasonable and customary issuance of Common Stock or Common Stock Equivalents to service providers of the Company, the primary purpose of which is not to raise capitalIssuance. In ---- addition to the limitations set forth herein, from the date hereof until such time as no Purchaser holds any of the Securities, the Company shall be prohibited from effecting or enter into an agreement to effect any Subsequent Financing involving any security which is not a Junior Security as defined in the Certificate of Designation or pari passu with the Preferred Stock, or any "Variable Rate Transaction" (as defined below). The ------------------------- term "Variable Rate Transaction" shall mean a transaction in -------------------------- which the Company issues or sells (i) any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional shares of Common Stock either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock; provided that the existence of anti-dilution provisions attached to any such securities shall not alone make a transaction a Variable Rate Transaction. In addition, unless Shareholder Approval has been obtained and deemed effective in accordance with Section 4.10(c), the Company shall not make any issuance whatsoever of Common Stock or Common Stock Equivalents which would cause any adjustment of the Set Price to the extent the holders of Preferred Stock would not be permitted, pursuant to Section 5(a)(iii) of the Certificate of Designations, to convert their respective outstanding Preferred Stock and Warrants in full.

Future Financings. From the date hereof until 90 120 days after the Effective Date, other than as contemplated by this Agreement, neither the Company nor any Subsidiary (with respect to shall issue additional shares of Capital Shares or Capital Shares Equivalents for an effective price per share of Common Stock Equivalents) shall issue or sell any Common Stock or Common Stock Equivalents entitling any Person to acquire shares less than 140% of Common Stockthe then Set Price. Notwithstanding anything herein to the contrary, the 90 120 day period set forth in this Section 4.14 shall be extended for the number of Trading Days during such period in which (iy) trading in the Common Stock is suspended by any Trading Principal Market, or (iiz) following the Effective Date, the Registration Statement is not effective or the prospectus included in the Registration Statement may not be used by each Purchaser the Purchasers for the resale of the Underlying Shares. Notwithstanding anything to the contrary herein, For purposes of this Section 4.14 shall not apply in respect of an Exempt Issuance and the reasonable and customary issuance of Common Stock or Common Stock Equivalents to service providers of the Company4.14, the primary purpose of which is not to raise capital. In addition to the limitations set forth herein, from the date hereof until such time as no Purchaser holds any of the Securities, the Company shall be prohibited from effecting or enter into an agreement to effect any Subsequent Financing involving any security which is not a Junior Security as defined in the Certificate of Designation or pari passu with the Preferred Stock, or any "Variable Rate Transaction" (as defined below)Transactions and MFN Transactions shall automatically be deemed to be issued at an effective price per share less than the Set Price. The term "Variable Rate Transaction" shall mean a transaction in which the Company issues or sells (i) any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional shares of Common Stock either (Ax) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities, or (By) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock; provided that . The term "MFN Transaction" shall mean a transaction in which the existence Company issues or sells any securities in a capital raising transaction or series of anti-dilution provisions attached related transactions which grants to an investor the right to receive additional shares based upon future transactions of the Company on terms more favorable than those granted to the such investor in such offering. Notwithstanding anything to the contrary herein, this Section 4.14 shall not apply to the following (a) the granting of options to employees, officers and directors of the Company pursuant to any such securities shall not alone make stock option plan duly adopted by a transaction a Variable Rate Transaction. In addition, unless Shareholder Approval has been obtained and deemed effective in accordance with Section 4.10(c), majority of the non-employee members of the Board of Directors of the Company shall not make any or a majority of the members of a committee of non-employee directors established for such purpose or the issuance whatsoever of Common Stock or Common Stock Equivalents which would cause any adjustment to employees of the Set Price Company in lieu of cash compensation which issuance has been voted and agreed to by a majority of the extent non-employee members of the holders Board of Preferred Stock would not be permittedDirectors of the Company or a majority of the members of a committee of non-employee directors established for such purpose, or (b) the exercise of the Debenture or any other security issued by the Company in connection with the offer and sale of this Company's securities pursuant to Section 5(a)(iiithis Agreement, or (c) the exercise of or conversion of any Convertible Securities, options, or warrants issued and outstanding on the Closing Date, or (d) acquisitions or strategic investments, the primary purpose of which is not to raise capital, or (e) financings undertaken with the prior consent of all of the Certificate of DesignationsPurchasers, to convert their respective outstanding Preferred Stock and Warrants in fullwhich consent shall not unreasonably be withheld.