BE REQUIRED TO FILE ANY NOTIFICATION OR REPORT FORMS UNDER THE
HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED.
NOTHING
HEREIN SHALL COMPEL THE COMPANY TO FILE SUCH NOTIFICATION AND REPORT FORMS.
SECTION 6.6
OTHER FINANCING.
NOTHING IN THIS AGREEMENT SHALL BE
CONSTRUED TO RESTRICT THE RIGHT OF THE COMPANY TO OFFER, SELL AND/OR ISSUE
SECURITIES OF ANY KIND WHATSOEVER, PROVIDED SUCH TRANSACTION IS NOT A PROHIBITED
TRANSACTION (AS DEFINED BELOW) (ANY SUCH TRANSACTION THAT IS NOT A PROHIBITED
TRANSACTION IS REFERRED TO IN THIS AGREEMENT AS A "PERMITTED TRANSACTION").
WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCE, THE COMPANY MAY,
WITHOUT THE PRIOR WRITTEN CONSENT OF THE INVESTOR, (I) ESTABLISH STOCK OPTION,
STOCK PURCHASE, STOCK BONUS OR OTHER EQUITY INCENTIVE OR AWARD PLANS OR
AGREEMENTS (FOR DIRECTORS, EMPLOYEES, CONSULTANTS AND/OR ADVISORS), AND ISSUE
SECURITIES THEREUNDER, AND AMEND SUCH PLANS OR AGREEMENTS, INCLUDING INCREASING
THE NUMBER OF SHARES AVAILABLE THEREUNDER, (II) ISSUE EQUITY SECURITIES TO
FINANCE, OR OTHERWISE IN CONNECTION WITH, THE ACQUISITION, LICENSE OR SALE OF
ONE OR MORE OTHER COMPANIES, EQUIPMENT, TECHNOLOGIES OR LINES OF BUSINESS,
(III) ISSUE SHARES OF COMMON STOCK AND/OR OTHER SECURITIES IN CONNECTION WITH
THE COMPANY'S OPTION, EQUITY INCENTIVE OR AWARD PLANS, STOCK PURCHASE PLANS,
STOCK BONUS PROGRAMS, RIGHTS PLANS, WARRANTS OR OPTIONS, (IV) ISSUE SHARES OF
COMMON STOCK AND/OR OTHER SECURITIES IN CONNECTION WITH THE ACQUISITION, LICENSE
OR SALE OF PRODUCTS, LICENSES, EQUIPMENT OR OTHER ASSETS AND STRATEGIC
COLLABORATIONS, PARTNERSHIPS, JOINT VENTURES OR SIMILAR TRANSACTIONS; (V) ISSUE
SHARES OF COMMON AND/OR OTHER SECURITIES TO EMPLOYEES, CONSULTANTS AND/OR
ADVISORS AS CONSIDERATION FOR SERVICES RENDERED OR TO BE RENDERED, (VI) ISSUE
AND SELL EQUITY OR DEBT SECURITIES IN A PUBLIC OFFERING (INCLUDING, WITHOUT
LIMITATION, ANY ISSUANCE AND SALE OF SECURITIES UNDER THE REGISTRATION
STATEMENT), (VII) ISSUE AND SELL ANY EQUITY OR DEBT SECURITIES IN A PRIVATE
PLACEMENT (OTHER THAN IN CONNECTION WITH ANY PROHIBITED TRANSACTION),
(VIII) ISSUE EQUITY SECURITIES TO EQUIPMENT LESSORS, EQUIPMENT VENDORS, BANKS OR
SIMILAR LENDING INSTITUTIONS IN CONNECTION WITH LEASES OR LOANS, OR IN
CONNECTION WITH STRATEGIC COMMERCIAL OR LICENSING TRANSACTIONS, (IX) ISSUE
SECURITIES IN CONNECTION WITH ANY STOCK SPLIT, STOCK DIVIDEND, RECAPITALIZATION,
RECLASSIFICATION OR SIMILAR EVENT BY THE COMPANY AND (X) ISSUE SHARES OF COMMON
STOCK TO THE INVESTOR UNDER ANY OTHER AGREEMENT ENTERED INTO BETWEEN THE
INVESTOR AND THE COMPANY.
SECTION 6.7
PROHIBITED TRANSACTIONS.
EXCEPT AS SET FORTH ON SCHEDULE
6.7 OF THE DISCLOSURE SCHEDULE AND EXCEPT AS PERMITTED BY SECTION 6.6, DURING
THE TERM OF THIS AGREEMENT, THE COMPANY SHALL NOT ENTER INTO ANY PROHIBITED
TRANSACTION WITHOUT THE PRIOR WRITTEN CONSENT OF THE INVESTOR, WHICH CONSENT MAY
BE WITHHELD AT THE SOLE DISCRETION OF THE INVESTOR.
FOR THE PURPOSES OF THIS
AGREEMENT, THE TERM "PROHIBITED TRANSACTION" SHALL REFER TO THE ISSUANCE BY THE
COMPANY OF ANY "FUTURE PRICED SECURITIES," WHICH SHALL MEAN THE ISSUANCE OF
SHARES OF COMMON STOCK OR SECURITIES OF ANY TYPE WHATSOEVER THAT ARE, OR MAY
BECOME, CONVERTIBLE OR EXCHANGEABLE INTO SHARES OF COMMON STOCK WHERE THE
PURCHASE, CONVERSION OR EXCHANGE PRICE FOR SUCH COMMON STOCK