THE STOCK ISSUANCE PRICE FOR THE NUMBER OF SECURITIES IT IS
PURCHASING, IN IMMEDIATELY AVAILABLE FUNDS BY WIRE TRANSFER TO AN ACCOUNT OF THE
COMPANY DESIGNATED BY THE COMPANY BY NOTICE TO SUCH HOLDER AT LEAST FOUR
BUSINESS DAYS PRIOR TO SUCH CLOSING, AND THE COMPANY WILL DELIVER THE
CERTIFICATES REPRESENTING SUCH SECURITIES TO SUCH HOLDER.
IF THE COMPANY EITHER
HAS NOT (A) ENTERED A DEFINITIVE AGREEMENT WITH RESPECT TO THE STOCK ISSUANCE
WITHIN 30 DAYS AFTER THE END OF THE PARTICIPATION ELECTION PERIOD, OR (B) CLOSED
THE STOCK ISSUANCE BY THE LATER OF (I) 30 DAYS AFTER THE DEFINITIVE AGREEMENT
RELATING THERETO WAS EXECUTED (OR, IF LATER, THE END OF THE PARTICIPATION
ELECTION PERIOD) AND (II) 10 DAYS AFTER THE SATISFACTION OF ALL STOCKHOLDER
APPROVAL AND GOVERNMENTAL AND REGULATORY APPROVAL AND FILING REQUIREMENTS, IF
ANY, THEN THE COMPANY MUST SEND A NEW ISSUANCE NOTICE AND AGAIN COMPLY WITH THE
PROVISIONS OF THIS ARTICLE 6 PRIOR TO EFFECTING ANY STOCK ISSUANCE.
6.5
EXCEPTIONS TO PARTICIPATION RIGHTS.
NOTWITHSTANDING THE FOREGOING,
THE PARTICIPATION RIGHTS GRANTED UNDER THIS ARTICLE 6 SHALL BE INAPPLICABLE WITH
RESPECT TO (I) THE ISSUANCE OF SHARES OF COMMON STOCK, OPTIONS OR OTHER AWARDS
PURSUANT TO THE EQUITY INCENTIVE PLANS OR THE ISSUANCE OF SHARES OF COMMON STOCK
UPON THE EXERCISE OF ANY AWARDS OR OPTIONS GRANTED PURSUANT TO THE EQUITY
INCENTIVE PLANS; (II) SHARES OF COMMON STOCK ISSUED AS A RESULT OF ANY STOCK
SPLIT, STOCK DIVIDEND, RECLASSIFICATION OR REORGANIZATION OR SIMILAR EVENT WITH
RESPECT TO THE COMPANY SECURITIES; (III) SHARES OF COMMON STOCK ISSUED UPON
CONVERSION OR EXERCISE OF, OR AS A DIVIDEND ON, ANY SECURITIES OF THE COMPANY;
(IV) SHARES OF COMMON STOCK ISSUED IN CONNECTION WITH ANY ACQUISITION, MERGER,
STOCK EXCHANGE OR ASSET ACQUISITION THAT IS APPROVED BY THE BOARD; (V) THE
ISSUANCE OF COMMON STOCK TO ANY STRATEGIC PARTNER, INCLUDING WITHOUT LIMITATION,
ANY SUPPLIER OR DEVELOPER OF THE COMPANY, EXCEPT TO THE EXTENT THAT THE NUMBER
OF SHARES ISSUED PURSUANT TO THIS CLAUSE (V) EXCEEDS 10% OF THE SHARES OF COMMON
STOCK (ON AN AS CONVERTED BASIS) OUTSTANDING IMMEDIATELY FOLLOWING THE CLOSING
(AS ADJUSTED FOR FUTURE STOCK SPLITS, REVERSE STOCK SPLITS, STOCK DIVIDENDS,
RECLASSIFICATIONS, REORGANIZATIONS, OR SIMILAR EVENTS); (VI) SHARES OF COMMON
STOCK ISSUED OR ISSUABLE TO ANY BANK, FINANCIAL INSTITUTION OR LESSOR PURSUANT
TO A DEBT FINANCING, EQUIPMENT LEASING OR REAL PROPERTY LEASING TRANSACTION;
(VII) SHARES OF COMMON STOCK ISSUED IN A PUBLIC OFFERING BY THE COMPANY APPROVED
BY THE BOARD; AND (VIII) SHARES OF COMMON STOCK ISSUED IN EXCHANGE FOR EITHER
(1) EXISTING SECURITIES OF THE COMPANY OR (2) EXISTING SECURITIES OF THE COMPANY
COMBINED WITH OTHER CONSIDERATION.
ARTICLE 7
DEFINITIONS
7.1
"AGGREGATE PURCHASE PRICE" HAS THE MEANING SET FORTH IN SECTION 1.1.
7.2
"AGREEMENT" HAS THE MEANING SET FORTH IN THE PREAMBLE TO THIS
AGREEMENT.
7.3
"AFFILIATE" MEANS, WITH RESPECT TO ANY PERSON, ANY OTHER PERSON
CONTROLLING, CONTROLLED BY OR UNDER DIRECT OR INDIRECT COMMON CONTROL WITH SUCH
PERSON.
7.4
"APPLICABLE NUMBER OF SHARES" HAS THE MEANING SET FORTH IN
SECTION