Common use of Subsequent Financing Clause in Contracts

Subsequent Financing. From the date hereof until the date that is the later of (i) the closing of the transactions whereby Yotta Merger Sub, Inc. will merge with and into the Company, with the Company as the surviving company (the “Merger”); and (ii) 12 month anniversary of the First Settlement Date, upon a Subsequent Financing, Investor shall have the right to participate in any financing, up to an amount of the 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 Subsequent Financing. At least five (5) 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”). 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 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 is proposed to be effected and shall include a term sheet or similar document relating thereto as an attachment.

Subsequent Financing. From the date hereof until the date that is the later of (i) the closing of the transactions whereby Yotta Merger Sub, Inc. will merge with and into the Company, with the Company as the surviving company (the “Merger”); and (ii) 12 month anniversary of the First Settlement Dateinitial closing pursuant to the Section 2(a) of this Agreement, upon a Subsequent Financing, Investor shall have the right to participate in any financing, up to an amount of the 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 Subsequent Financing. At least five (5) 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”). 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 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 is proposed to be effected and shall include a term sheet or similar document relating thereto as an attachment.

Subsequent Financing. From Borrower shall raise a minimum of $20,000,000.00 in gross cash proceeds through the date hereof until the date that is the sale of new equity or subordinated debt no later than January 31, 2014, of (i) the closing of the transactions whereby Yotta Merger Sub, Inc. will merge with and into the Company, with the Company as the surviving company (the “Merger”); and (ii) 12 month anniversary of the First Settlement Date, upon a Subsequent Financing, Investor shall have the right to participate in any financing, up to which an amount of not less than $10,000,000.00 shall have been raised concurrently with the Subsequent Financing equal to 100% effectiveness of the Subsequent Financing (Second Amendment to the “Participation MaximumAgreement.”) on the same terms, conditions and price provided for in the Subsequent Financing 9. Following the Merger, the Participation Maximum shall be 50% Section 7.16 of the Subsequent Financing. At least five (5Agreement is hereby amended by inserting immediately after Section 7.16(c) Trading Days the following: “Notwithstanding this Section 7.16, if, prior to the closing delivery of the Subsequent FinancingCompany’s quarterly financial statements for any fiscal quarter, the Company shall deliver have taken action to Investor improve its Liquidity to the satisfaction of Lender, such as a written notice new financing transaction, then the financial covenants in Section 7.16(a) or (b) shall be deemed to be waived by Lender until the Company delivers its quarterly financial statements for its next succeeding fiscal quarter.” 10. Section 7.17 of the Agreement is hereby amended by amending and restating the last sentence thereof to read in its intention entirety as follows: “Further, not later than November 30, 2013, Lender shall have received from Borrower, in form and substance reasonably satisfactory to effect Lender a Subsequent Financing fully executed pledge of sixty-five percent (“Pre-Notice65%) of the stock of all of Borrower’s other Subsidiaries organized outside of the United States that have not been dissolved during such one hundred and fifty (150) day period.”), which Pre-Notice shall ask such Investor if it wants to review the details of such financing (such additional notice, a “Subsequent Financing Notice”) 11. Upon the request effectiveness of Investorthis Amendment, Lender hereby agrees that the Convertible Debentures constitute “Subordinated Indebtedness” for purposes of the Agreement and only upon a request by Investoragrees that the Convertible Debentures are subordinated to the Secured Obligations pursuant to the Subordination Agreements. 12. Upon the effectiveness of this Amendment, Lender hereby waives any Events of Default existing prior to the date hereof (the “Existing Defaults”). 13. In connection with and to accommodate the Borrower’s issuance of the Convertible Debentures and in consideration of Lender’s waiver of the Existing Defaults and other good and valuable consideration, Lender agrees to exchange its Warrants 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 Investor. The Subsequent Financing Notice shall describe fee in reasonable detail the proposed terms of such Subsequent Financing, including the amount of $6,500,000.00 (the “Warrant Exchange Fee”) that shall be due and payable upon the earlier to occur of (a) the consummation of any sale of all or any material portion of the Borrower’s assets in one or a series of transactions, the merger, consolidation, share exchange or similar transaction of the Borrower with or into another corporation, company or other entity or a Change of Control, (b) the payment in full in cash of the then outstanding principal amount of and all accrued and unpaid interest on the Convertible Debentures, (c) the Term Loan Maturity Date, or (d) the payment in full of the outstanding Secured Obligations. The Warrant Exchange Fee shall not bear interest. The Warrant Exchange Fee shall constitute Secured Obligations under the Agreement and shall be secured by the Collateral. The Warrant Exchange Fee is deemed fully earned by Lender as of the date hereof regardless of the payment date thereof. Notwithstanding the foregoing provisions of this Section 13 to the contrary, Borrower shall not make and Lender shall not accept the payment of the Warrant Exchange Fee unless and until the principal amount of the outstanding Convertible Debentures and all accrued and unpaid interest, fees and other amounts due and payable thereon shall have been paid in full or otherwise converted into shares of the Borrower’s common stock. 14. The Agreement, as amended hereby, shall remain in full force and effect in accordance with its terms. Except as expressly set forth herein, the execution, delivery, and performance of this Amendment shall not operate as a waiver of, or as an amendment of, any right, power, or remedy of Lender under the Loan Documents, as in effect prior to the date hereof. 15. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument. 16. As a condition to the effectiveness of this Amendment, Lender shall have received, in form and substance satisfactory to Lender, the following: (a) this Amendment, duly executed by Borrower; (b) payment of Lender’s reasonable expenses incurred in connection with this Amendment; (c) Concurrently herewith, the Borrower shall have issued the Convertible Debentures and received the cash proceeds intended to be raised thereunder from the sale thereof; and (d) Lender and the Person or Persons through or with whom such Subsequent Financing is proposed to be effected and holders of the Convertible Debentures shall include a term sheet or similar document relating thereto as an attachmenthave concurrently herewith entered into the Subordination Agreements.

Subsequent Financing. From During the date hereof until period commencing on the date that is Closing Date and expiring on the later first to occur of (i) the closing of the transactions whereby Yotta Merger Sub, Inc. will merge with and into the Company, with the Company as the surviving company twelve (the “Merger”); and (ii12) 12 month anniversary of the First Settlement Effective Date of the Registration Statement or (ii) the twenty-four (24) month anniversary of the Closing Date, upon the Company will not, directly or indirectly, effect a subsequent financing (a “Subsequent Financing”) of its securities (whether structured as debt or equity), Investor unless in each such case the Company shall have first offered to sell to the right to participate Subscribers in any financingthis Offering, up to in the aggregate, an amount of the securities offered in such Subsequent Financing equal to 10050% 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 MaximumNotice”) on the same terms, conditions and price provided for in the Subsequent Financing). Following the Merger, The Company shall deliver the Participation Maximum shall be 50% of Notice to the Subsequent Financing. At Subscribers at least five (5) Trading Days 5 business days prior to the closing of the Subsequent Financing, the Company shall deliver . Any Subscriber desiring 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”). 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 Investor. The Subsequent Financing Notice shall describe participate 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 is proposed must provide written notice to be effected and shall include a term sheet or similar document relating thereto as an attachmentthe 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. From If, at any time prior to July 30, 2005, the date hereof until 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 date that is Per Share Purchase Price, then each Purchaser shall be entitled to receive, in connection with the later closing of the Financing Transaction, an additional number of shares of Common Stock (the "Adjustment Shares") determined by subtracting (i) the closing number of the transactions whereby Yotta Merger SubShares received by such Purchaser pursuant to this Agreement at Closing, Inc. will merge with and into the Company, with the Company as the surviving company (the “Merger”); and from (ii) 12 month anniversary the number of shares of Common Stock determined by dividing such Purchaser's aggregate Purchase Price paid at Closing by the First Settlement Dateper share purchase price in the Financing Transaction, upon rounded down to the nearest whole share; provided, however, that in no event shall an issuance be deemed to constitute a Subsequent FinancingFinancing Transaction if the primary purpose of such equity financing is not to raise equity capital; provided, Investor further, that the issuance of any Adjustment Shares to any Purchaser in connection with the closing of a Financing Transaction shall have be subject to the right receipt of appropriate consents of and approvals by the Company's board of directors and shall be subject to participate the availability of an exemption from registration under the Securities Act. Notwithstanding anything in this Section 4.11 to the contrary, no Adjustment Shares shall be issuable, and no Purchaser shall be entitled to any financingAdjustment Shares, up to an amount the extent that as a result of the Subsequent Financing equal to 100said issuance in excess of 6,135,108 shares of Common Stock (19.99% of the 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 “Participation Maximum”"20% Cap") on the same termswould be issued pursuant to this Section 4.11. In such event, conditions and price provided for in the Subsequent Financing. Following the Merger, the Participation Maximum each Purchaser shall be 50% entitled to receive the number of Additional Shares equal to such Purchaser's pro rata share of the Subsequent Financing. At least five 20% Cap (5) Trading Days prior to the closing of the Subsequent Financing, the Company shall deliver to Investor a written notice of based upon its intention to effect a Subsequent Financing (“Pre-Notice”aggregate Purchase Price hereunder), which Pre-Notice shall ask such Investor if it wants to review the details of such financing (such additional notice, a “Subsequent Financing Notice”). 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 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 is proposed to be effected and shall include a term sheet or similar document relating thereto as an attachment.

Subsequent Financing. From the date hereof Subject to Section 2 above, until the date that is Repayment Amount has been paid in full, if and when Maker completes an offering (the later “Subsequent Financing”) of (i) equity or equity-linked securities, or (ii) debt that is convertible into equity or in which there is an equity component (the “Additional Securities”), Maker shall offer participation in such Subsequent Financing to Holder in accordance with the following provisions: A. At least three (3) trading days prior to, or within three (3) trading days after, the closing of the transactions whereby Yotta Merger Suboffering of Additional Securities, Inc. will merge with and into the Company, with the Company as the surviving company (the “Merger”); and (ii) 12 month anniversary of the First Settlement Date, upon a Subsequent Financing, Investor shall have the right to participate in any financing, up to an amount of the 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 Subsequent Financing. At least five (5) Trading Days prior to the closing of the Subsequent Financing, the Company Maker shall deliver to Investor Holder a written notice of its intention to effect a such offering (the “Subsequent Financing (“Pre-Notice”), which Pre-Subsequent Financing Notice shall ask such Investor the Holder if it wants to review the details of such financing (such additional notice, a the “Subsequent Financing NoticeDescription”). Upon the request of Investor, and only upon a request by Investor, Holder for a Subsequent Financing NoticeDescription, the Company Maker shall promptly, but no later than one two (12) Trading Day trading days after such request, deliver a Subsequent Financing Notice Description to InvestorHolder. The Subsequent Financing Notice Description shall describe in reasonable detail the proposed terms of such Subsequent Financing, including the amount of proceeds intended to be raised thereunder and thereunder, the Person or Persons through or Person(s) with whom such Subsequent Financing is proposed to be effected (provided that the name of such Person(s) is available, and provided further that Holder agrees not to make or receive with contact such Person(s) except with Maker’s prior written consent in its sole discretion), and attached to which shall include be a term sheet or similar document relating thereto thereto. B. By written notification received by Maker by 6:30 p.m. (New York City time) on the second (2nd) trading day after its receipt of the Subsequent Financing Notice, Holder may elect to purchase or obtain, at the price and on the terms specified in the Subsequent Financing Description, such number of Additional Securities as an attachmentis equal to the then outstanding portion of the principal amount pursuant to this Note on the terms and conditions set forth in the Subsequent Financing Description, subject to mutually acceptable documentation; provided, that Holder shall pay for the Additional Securities by surrendering, and Maker shall receive payment by accepting such surrender, of the then outstanding principal balance of this Note. Upon the surrender of such principal amount as payment for Additional Securities, Maker (itself, or through its transfer agent) shall, no later than the third business day following such surrender, issue and deliver (i.e., deposit with a nationally recognized overnight courier service postage prepaid) to Holder or its nominee certificates or other instruments evidencing the Additional Securities purchased by Holder.