Common use of Subsequent Financing Clause in Contracts

Subsequent Financing. During the period commencing on the Closing Date and expiring on the first to occur of (i) the twelve (12) month anniversary of the Effective Date of the Registration Statement or (ii) the twenty-four (24) month anniversary of the Closing Date, the Company will not, directly or indirectly, effect a subsequent financing (a “Subsequent Financing”) of its securities (whether structured as debt or equity), unless in each such case the Company shall have first offered to sell to the Subscribers in this Offering, in the aggregate, an amount of the securities offered in such Subsequent Financing equal to 50% of the securities offered in such Subsequent Financing (the securities to be offered to Subscribers pursuant to this Section being referred to herein in the “Offered Securities”). The Company shall offer to sell to each Subscriber (A) such Subscriber’s pro rata share of the Offered Securities (the “Basic Amount”), and (B) such additional portion of the Offered Securities as such Subscriber shall indicate it will purchase should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Subscriber (the “Participation Notice”). The Company shall deliver the Participation Notice to the Subscribers at least 5 business days prior to the closing of the Subsequent Financing. Any Subscriber desiring to participate in such Subsequent Financing must provide written notice to the Company by not later than 5:30 p.m. (New York City time) on the 3rd business day following the date that the Company delivered such Participation Notice (the “Notice Period”) (calculated in accordance with the notice provisions set forth below in Section 7.7).

Subsequent Financing. During If, at any time prior to July 30, 2005, the period commencing on Company shall issue any shares of Common Stock in a non-public capital raising transaction (a "Financing Transaction") at a price per share less than the Closing Date and expiring on Per Share Purchase Price, then each Purchaser shall be entitled to receive, in connection with the first to occur closing of the Financing Transaction, an additional number of shares of Common Stock (the "Adjustment Shares") determined by subtracting (i) the twelve (12) month anniversary number of the Effective Date of the Registration Statement or Shares received by such Purchaser pursuant to this Agreement at Closing, from (ii) the twenty-four (24) month anniversary number of shares of Common Stock determined by dividing such Purchaser's aggregate Purchase Price paid at Closing by the Closing Dateper share purchase price in the Financing Transaction, the Company will not, directly or indirectly, effect a subsequent financing (a “Subsequent Financing”) of its securities (whether structured as debt or equity), unless in each such case the Company shall have first offered to sell rounded down to the Subscribers nearest whole share; provided, however, that in no event shall an issuance be deemed to constitute a Financing Transaction if the primary purpose of such equity financing is not to raise equity capital; provided, further, that the issuance of any Adjustment Shares to any Purchaser in connection with the closing of a Financing Transaction shall be subject to the receipt of appropriate consents of and approvals by the Company's board of directors and shall be subject to the availability of an exemption from registration under the Securities Act. Notwithstanding anything in this OfferingSection 4.11 to the contrary, no Adjustment Shares shall be issuable, and no Purchaser shall be entitled to any Adjustment Shares, to the extent that as a result of said issuance in the aggregate, an amount excess of the securities offered in such Subsequent Financing equal to 506,135,108 shares of Common Stock (19.99% of the securities offered in such Subsequent Financing Common Stock issued and outstanding on the date hereof, which number shall be subject to readjustment for any stock split, stock dividend or reclassification of the Common Stock) (the securities to "20% Cap") would be offered to Subscribers issued pursuant to this Section being referred 4.11. In such event, each Purchaser shall be entitled to herein in receive the “Offered Securities”). The Company shall offer number of Additional Shares equal to sell to each Subscriber (A) such Subscriber’s Purchaser's pro rata share of the Offered Securities 20% Cap (the “Basic Amount”), and (B) such additional portion of the Offered Securities as such Subscriber shall indicate it will purchase should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Subscriber (the “Participation Notice”). The Company shall deliver the Participation Notice to the Subscribers at least 5 business days prior to the closing of the Subsequent Financing. Any Subscriber desiring to participate in such Subsequent Financing must provide written notice to the Company by not later than 5:30 p.m. (New York City time) on the 3rd business day following the date that the Company delivered such Participation Notice (the “Notice Period”) (calculated in accordance with the notice provisions set forth below in Section 7.7based upon its aggregate Purchase Price hereunder).

Subsequent Financing. During From the period commencing on date hereof until the Closing Date and expiring on date that is the first to occur later of (i) the twelve closing of the transactions whereby Yotta Merger Sub, Inc. will merge with and into the Company, with the Company as the surviving company (12the “Merger”); and (ii) 12 month anniversary of the Effective Date initial closing pursuant to the Section 2(a) of the Registration Statement or (ii) the twenty-four (24) month anniversary of the Closing Datethis Agreement, the Company will not, directly or indirectly, effect upon a subsequent financing (a “Subsequent Financing”) of its securities (whether structured as debt or equity), unless in each such case the Company Investor shall have first offered the right to sell participate in any financing, up to the Subscribers in this Offering, in the aggregate, an amount of the securities offered in such Subsequent Financing equal to 100% of the Subsequent Financing (the “Participation Maximum”) on the same terms, conditions and price provided for in the Subsequent Financing. Following the Merger, the Participation Maximum shall be 50% of the securities offered in such Subsequent Financing Financing. At least five (the securities to be offered to Subscribers pursuant to this Section being referred to herein in the “Offered Securities”). The Company shall offer to sell to each Subscriber (A5) such Subscriber’s pro rata share of the Offered Securities (the “Basic Amount”), and (B) such additional portion of the Offered Securities as such Subscriber shall indicate it will purchase should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Subscriber (the “Participation Notice”). The Company shall deliver the Participation Notice to the Subscribers at least 5 business days Trading Days prior to the closing of the Subsequent Financing, the Company shall deliver to Investor a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”), which Pre-Notice shall ask such Investor if it wants to review the details of such financing (such additional notice, a “Subsequent Financing Notice”). Any Subscriber desiring Upon the request of Investor, and only upon a request by Investor, for a Subsequent Financing Notice, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver a Subsequent Financing Notice to participate Investor. The Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, including the amount of proceeds intended to be raised thereunder and the Person or Persons through or with whom such Subsequent Financing must provide written notice is proposed to the Company by not later than 5:30 p.m. (New York City time) on the 3rd business day following the date that the Company delivered such Participation Notice (the “Notice Period”) (calculated in accordance with the notice provisions set forth below in Section 7.7)be effected and shall include a term sheet or similar document relating thereto as an attachment.

Subsequent Financing. During From the period commencing on date hereof until the Closing Date and expiring on date that is the first to occur later of (i) the twelve closing of the transactions whereby Yotta Merger Sub, Inc. will merge with and into the Company, with the Company as the surviving company (12the “Merger”); and (ii) 12 month anniversary of the Effective Date of the Registration Statement or (ii) the twenty-four (24) month anniversary of the Closing First Settlement Date, the Company will not, directly or indirectly, effect upon a subsequent financing (a “Subsequent Financing”) of its securities (whether structured as debt or equity), unless in each such case the Company Investor shall have first offered the right to sell participate in any financing, up to the Subscribers in this Offering, in the aggregate, an amount of the securities offered in such Subsequent Financing equal to 100% of the Subsequent Financing (the “Participation Maximum”) on the same terms, conditions and price provided for in the Subsequent Financing. Following the Merger, the Participation Maximum shall be 50% of the securities offered in such Subsequent Financing Financing. At least five (the securities to be offered to Subscribers pursuant to this Section being referred to herein in the “Offered Securities”). The Company shall offer to sell to each Subscriber (A5) such Subscriber’s pro rata share of the Offered Securities (the “Basic Amount”), and (B) such additional portion of the Offered Securities as such Subscriber shall indicate it will purchase should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Subscriber (the “Participation Notice”). The Company shall deliver the Participation Notice to the Subscribers at least 5 business days Trading Days prior to the closing of the Subsequent Financing, the Company shall deliver to Investor a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”), which Pre-Notice shall ask such Investor if it wants to review the details of such financing (such additional notice, a “Subsequent Financing Notice”). Any Subscriber desiring Upon the request of Investor, and only upon a request by Investor, for a Subsequent Financing Notice, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver a Subsequent Financing Notice to participate Investor. The Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, including the amount of proceeds intended to be raised thereunder and the Person or Persons through or with whom such Subsequent Financing must provide written notice is proposed to the Company by not later than 5:30 p.m. (New York City time) on the 3rd business day following the date that the Company delivered such Participation Notice (the “Notice Period”) (calculated in accordance with the notice provisions set forth below in Section 7.7)be effected and shall include a term sheet or similar document relating thereto as an attachment.

Subsequent Financing. During the For a period commencing on of three (3) years following the Closing Date and expiring on so long as the first to occur of (i) the twelve (12) month anniversary of the Effective Date of the Registration Statement or (ii) the twenty-four (24) month anniversary of the Closing DatePreferred Shares remain outstanding, the Company will notcovenants and agrees to promptly notify (in no event later than three (3) business days after making or receiving an applicable offer) each Purchaser in writing (a “Rights Notice”) of the terms and conditions of any proposed offer or sale to, directly or indirectlyexchange with (or other type of distribution to) any person (the “New Purchaser”), effect a subsequent financing of Common Stock or any debt or equity securities convertible, exercisable or exchangeable into Common Stock (a “Subsequent Financing”) ). The Rights Notice shall describe, in reasonable detail, the proposed Subsequent Financing, the names and investment amounts of its securities all investors participating in the Subsequent Financing (whether structured as debt or equityif known), unless the proposed closing date of the Subsequent Financing, which shall be within ten (10) calendar days from the date of the Rights Notice, and all of the terms and conditions thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each such case Purchaser an option (the Company shall have first offered “Rights Option”) during the five (5) Trading Days following delivery of the Rights Notice (the “Option Period”) to sell elect to the Subscribers in this Offering, purchase securities in the aggregate, an amount form of the securities being offered in such Subsequent Financing equal up to 50% an additional amount of such securities that will permit such Purchaser to maintain its proportionate ownership interest in the Company. Proportionate ownership shall be determined on a fully diluted basis, without giving effect to any limitations on exercise set forth in the Preferred Shares, the Warrants or any other securities of the Company (including the securities offered to be issued in the Subsequent Financing). Such acquisition to be on the same, absolute terms and conditions as contemplated by such Subsequent Financing. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company receives notice of exercise of the Rights Option from the Purchaser within the Option Period, it shall make provision in such Subsequent Financing for the issuance to the Purchaser of the securities required hereunder (it being understood that such securities hall be in addition to the securities to be offered issued to Subscribers pursuant the New Purchaser, not in lieu of such securities). If the Company does not receive notice of exercise of the Rights Option from the Purchaser within the Option Period, the Company shall have the right to this Section being referred close the Subsequent Financing on the scheduled closing date with the New Purchaser; provided that all of the material terms and conditions of the closing are the same as those provided to herein the Purchaser in the “Offered Securities”)Rights Notice. The Company shall offer to sell to each Subscriber (A) such Subscriber’s pro rata share of the Offered Securities (the “Basic Amount”), and (B) such additional portion of the Offered Securities as such Subscriber shall indicate it will purchase should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”), at a price and on such other terms as shall have been specified by the Company in writing delivered to such Subscriber (the “Participation Notice”). The Company shall deliver the Participation Notice to the Subscribers at least 5 business days prior to If the closing of the Subsequent Financing. Any Subscriber desiring to participate in such proposed Subsequent Financing must provide written notice does not occur on that date, any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the Company by provisions of this Section 3.17, including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.17 shall not later than 5:30 p.m. apply to Permitted Issuances (New York City time) on as defined in the 3rd business day following the date that the Company delivered such Participation Notice (the “Notice Period”) (calculated in accordance with the notice provisions set forth below in Section 7.7Warrants).