Common use of Prohibited Transactions Clause in Contracts

Prohibited Transactions. 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 in the sole and absolute discretion of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (i) the issuance by the Company of any rights, warrants or options to subscribe for or purchase Common Stock, or any other securities directly or indirectly convertible into or exchangeable or exercisable for Common Stock, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) any “at-the-market offering” (as defined in Rule 415(a)(4) under the Securities Act or any successor rule thereto) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar to the financing provided for under this Agreement, provided that any future issuance by the Company of a convertible security (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, the type of conversion price adjustments customarily found in a firm commitment Rule 144A offering to qualified institutional buyers.

Prohibited Transactions. During the term last thirty (30) days prior to the date hereof, neither such Investor nor any Affiliate of such Investor which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to such Investor’s investments or trading or information concerning such Investor’s investments, including in respect of the Securities, or (z) is subject to such Investor’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly, (a) acquired, agreed to acquired (other than pursuant to this Agreement), the Company shall not enter into any Prohibited Transaction without the prior written consent of the Investoroffered for sale, which consent may be withheld in the sole and absolute discretion of the Investor. For the purposes of this Agreementsold, the term “Prohibited Transaction” shall refer to: (i) the issuance by the Company pledged or otherwise disposed of any rights, warrants or options to subscribe for or purchase Common Stock, (b) effected or agreed to effect any other securities directly short sale, whether or indirectly convertible into or exchangeable or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) established any “at-the-market offeringput equivalent position” (as defined in Rule 415(a)(416a-1(h) under the Securities Act Exchange Act) with respect to the Common Stock, granted any other right (including, without limitation, any put or call option) with respect to the Common Stock or with respect to any successor rule theretosecurity that includes, relates to or derived any significant part of its value from the Common Stock or otherwise sought to hedge its position in the Shares or (c) entered into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of any securities of the Company’s , whether any such transaction described in clauses (a), (b) or (c) was or is to be settled by delivery of securities by or on behalf of the Company, other than securities, cash or otherwise (Aeach, a “Prohibited Transaction”). Prior to the earliest to occur of (i) a customarythe termination of this Agreement, firm-commitment underwritten public offering (ii) the Effective Date or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line the Effectiveness Deadline, such Investor shall not, and shall cause its Trading Affiliates not to, engage, directly or other form indirectly, in a Prohibited Transaction. Such Investor acknowledges that the representations, warranties and covenants contained in this Section 5.11 are being made for the benefit of financing that is substantially similar to the financing provided for under this Agreement, provided that any future issuance by Investors as well as the Company and that each of a convertible security (“Convertible Security”) that contains the other Investors shall have an independent right to assert any claims against such Investor arising out of any breach or violation of the provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, the type of conversion price adjustments customarily found in a firm commitment Rule 144A offering to qualified institutional buyers5.11.

Prohibited Transactions. During Other than with respect to this Agreement and the term of this Agreementtransactions contemplated herein, since the time that such Buyer was first contacted by the Company shall not enter into or the Placement Agent (as defined below) regarding the investment contemplated hereby, neither the Buyer nor any Prohibited Transaction without Affiliate (as defined by Rule 405 promulgated pursuant to the prior written consent ▇▇▇▇ ▇▇▇) of such Buyer which (x) had knowledge of the Investortransactions contemplated hereby, which consent may be withheld (y) has or shares discretion relating to such Buyer’s investments or trading or information concerning such Buyer’s investments and (z) is subject to such Buyer’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has directly or indirectly, nor has any Person acting on behalf of or pursuant to any understanding with such Buyer or Trading Affiliate, effected or agreed to effect any transactions in the sole and absolute discretion securities of the InvestorCompany, or any transactions involving or relating to securities of the Company, including any derivative securities. For Such Buyer hereby covenants and agrees not to, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in any transactions in the purposes securities of this Agreementthe Company, or any transactions involving or relating to the term “Prohibited Transaction” shall refer to: Company’s securities, during the period from the date hereof until such time as (i) the issuance transactions contemplated by this Agreement are first publicly announced as described in Section 4(i) hereof (provided the Company of any rights, warrants complies therewith) or options to subscribe for or purchase Common Stock, or any other securities directly or indirectly convertible into or exchangeable or exercisable for Common Stock, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) any “at-the-market offering” (as defined this Agreement is terminated in Rule 415(a)(4) under the Securities Act or any successor rule thereto) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar to the financing provided for under this Agreement, provided that any future issuance by the Company of a convertible security (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or full pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, the type of conversion price adjustments customarily found in a firm commitment Rule 144A offering to qualified institutional buyers8 hereof.

Prohibited Transactions. During Since 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 in the sole and absolute discretion of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (i) the issuance such time as such Investor was first contacted by the Company of any rights, warrants or options to subscribe for or purchase Common Stock, or any other securities Person acting on behalf of the Company regarding the transactions contemplated hereby through the public announcement of the Transaction, neither such Investor nor any Affiliate of such Investor which (a) had knowledge of the transactions contemplated hereby, (b) has or shares discretion relating to such Investor’s investments or trading or information concerning such Investor’s investments, including in respect of the Securities, or (c) is subject to such Investor’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly, effected or agreed to effect, or will directly or indirectly convertible into effect, any short sale, whether or exchangeable or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) established any “at-the-market offeringput equivalent position” (as defined in Rule 415(a)(416a-1(h) under the Securities Act or any successor rule thereto▇▇▇▇ ▇▇▇) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this AgreementCommon Shares, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Shares or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Shares or otherwise sought to hedge its position in the Securities (each, a firm commitment Rule 144A offering “Prohibited Transaction”). Such Investor acknowledges that the representations, warranties and covenants contained in this Section 5.12 are being made for the benefit of the Investors as well as the Company and that each of the other Investors shall have an independent right to qualified institutional buyersassert any claims against such Investor arising out of any breach or violation of the provisions of this Section 5.12. The Company acknowledges and agrees that each Investor has not made any representations or warranties with respect to the transactions contemplated by the Transaction Documents other than those specifically set forth in this Section 5 and, in the case of each Canadian investor, Schedule IV hereto.

Prohibited Transactions. During Since the term earlier 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 in the sole and absolute discretion of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (ia) the issuance such time as such Purchaser was first contacted by the Company or the Placement Agent regarding the transactions contemplated hereby or (b) thirty (30) days prior to the date hereof, neither such Purchaser nor any Affiliate of any rightssuch Purchaser which (x) had knowledge of the transactions contemplated hereby, warrants (y) has or options shares discretion relating to subscribe for such Purchaser’s investments or purchase Common Stocktrading or information concerning such Purchaser’s investments, including in respect of the Securities, or any other securities (z) is subject to such Purchaser’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly convertible into indirectly, effected or exchangeable agreed to effect any short sale, whether or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) established any “at-the-market offeringput equivalent position” (as defined in Rule 415(a)(416a-1(h) under the Securities Act or any successor rule theretoExchange Act) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this AgreementCommon Stock, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock or otherwise sought to hedge its position in the Securities (each, a “Prohibited Transaction”). Prior to the earliest to occur of (i) the termination of this Agreement, (ii) the Effective Date or (iii) the Effectiveness Deadline, such Purchaser shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a firm commitment Rule 144A offering Prohibited Transaction. Such Purchaser acknowledges that the representations, warranties and covenants contained in this Section 2(n) are being made for the benefit of the Purchasers as well as the Company and that each of the other Purchasers shall have an independent right to qualified institutional buyersassert any claims against such Purchaser arising out of any breach or violation of the provisions of this Section 2(n).

Prohibited Transactions. During Since 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 in the sole and absolute discretion of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (i) the issuance such time as such Investor was first contacted by the Company of any rights, warrants or options to subscribe for or purchase Common Stock, or any other securities Person acting on behalf of the Company regarding the transactions contemplated hereby through the public announcement of the Transaction, neither such Investor nor any Affiliate of such Investor which (a) had knowledge of the transactions contemplated hereby, (b) has or shares discretion relating to such Investor's investments or trading or information concerning such Investor's investments, including in respect of the Securities, or (c) is subject to such Investor's review or input concerning such Affiliate's investments or trading (collectively, "Trading Affiliates") has, directly or indirectly, effected or agreed to effect, or will directly or indirectly convertible into effect, any short sale, whether or exchangeable or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to established any fixed price; (ii) any “at-the-market offering” "put equivalent position" (as defined in Rule 415(a)(416a-1(h) under the Securities Act or any successor rule thereto▇▇▇▇ ▇▇▇) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this AgreementCommon Shares, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Shares or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Shares or otherwise sought to hedge its position in the Securities (each, a firm commitment Rule 144A offering "Prohibited Transaction"). Such Investor acknowledges that the representations, warranties and covenants contained in this Section 5.12 are being made for the benefit of the Investors as well as the Company and that each of the other Investors shall have an independent right to qualified institutional buyersassert any claims against such Investor arising out of any breach or violation of the provisions of this Section 5.12. The Company acknowledges and agrees that each Investor has not made any representations or warranties with respect to the transactions contemplated by the Transaction Documents other than those specifically set forth in this Section 5 and, in the case of each Canadian investor, Schedule II hereto.

Prohibited Transactions. During Since the term earlier 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 in the sole and absolute discretion of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (ia) the issuance such time as it was first contacted by the Company of any rights, warrants or options to subscribe for or purchase Common Stock, or any other securities Person acting on behalf of the Company regarding the transactions contemplated hereby or (b) thirty (30) days prior to the date hereof, neither it nor any of its Affiliates which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to its investments or trading or information concerning its investments, including in respect of the Securities, or (z) is subject to its review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly convertible into indirectly, effected or exchangeable agreed to effect any short sale, whether or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) established any “at-the-market offeringput equivalent position” (as defined in Rule 415(a)(416a-1(h) under the Securities Act or any successor rule thereto▇▇▇▇ ▇▇▇) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this AgreementCommon Stock, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock or otherwise sought to hedge its position in the Securities (each, a “Prohibited Transaction”). Prior to the earliest to occur of (i) the termination of this Agreement, (ii) the Effective Date or (iii) the Effectiveness Deadline, it shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a firm commitment Rule 144A offering Prohibited Transaction. It acknowledges that the representations, warranties and covenants contained in this Section 5.11 are being made for the benefit of the other parties hereto as well as the Company and that each of the other parties hereto shall have an independent right to qualified institutional buyersassert any claims against it arising out of any breach or violation of the provisions of this Section 5.11.

Prohibited Transactions. During Since 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 in the sole and absolute discretion of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (i) the issuance such time as such Investor was first contacted by the Company of any rights, warrants or options to subscribe for or purchase Common Stock, or any other securities Person acting on behalf of the Company regarding the transactions contemplated hereby through the public announcement of the Transaction, neither such Investor nor any Affiliate of such Investor which (a) had knowledge of the transactions contemplated hereby, (b) has or shares discretion relating to such Investor's investments or trading or information concerning such Investor's investments, including in respect of the Securities, or (c) is subject to such Investor's review or input concerning such Affiliate's investments or trading (collectively, "Trading Affiliates") has, directly or indirectly, effected or agreed to effect, or will directly or indirectly convertible into effect, any short sale, whether or exchangeable or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to established any fixed price; (ii) any “at-the-market offering” "put equivalent position" (as defined in Rule 415(a)(416a-1(h) under the Securities Act or any successor rule thereto▇▇▇▇ ▇▇▇) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this AgreementCommon Shares, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Shares or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Shares or otherwise sought to hedge its position in the Securities (each, a firm commitment Rule 144A offering "Prohibited Transaction"). Such Investor acknowledges that the representations, warranties and covenants contained in this Section 5.12 are being made for the benefit of the Investors as well as the Company and that each of the other Investors shall have an independent right to qualified institutional buyersassert any claims against such Investor arising out of any breach or violation of the provisions of this Section 5.12. The Company acknowledges and agrees that each Investor has not made any representations or warranties with respect to the transactions contemplated by the Transaction Documents other than those specifically set forth in this Section 5 and, in the case of each Canadian investor, Schedule IV hereto.

Prohibited Transactions. 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 in the sole and absolute discretion of the Investor. For the purposes of this Agreement, the term Since agreeing to go “Prohibited Transaction” shall refer to: (i) the issuance by the Company of any rights, warrants or options to subscribe for or purchase Common Stock, or any other securities directly or indirectly convertible into or exchangeable or exercisable for Common Stock, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) any “atover-the-market offeringwall” to learn the confidential name of the Company and the proposed details of the terms of the transactions contemplated by the Transaction Documents, neither such Investor nor any Affiliate of such Investor which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to such Investor’s investments or trading or information concerning such Investor’s investments, including in respect of the Securities, or (z) is subject to such Investor’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly, effected or agreed to effect any short sale, whether or not against the box, established any “put equivalent position” (as defined in Rule 415(a)(416a-1(h) under the Securities Act or any successor rule thereto▇▇▇▇ ▇▇▇) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this AgreementCommon Stock, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock or otherwise sought to hedge its position in the Securities (each, a “Prohibited Transaction”). Prior to the earliest to occur of (i) the termination of this Agreement, (ii) the Effective Date or (iii) the Effectiveness Deadline, such Investors as set forth on Schedule 5.11 shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a firm commitment Rule 144A offering Prohibited Transaction. Such Investor acknowledges that the representations, warranties and covenants contained in this Section 5.11 are being made for the benefit of the other Investors as well as the Company and that each of the other Investors shall have an independent right to qualified institutional buyersassert any claims against such Investor arising out of any breach or violation of the provisions of this Section 5.11.

Prohibited Transactions. During the term last 30 days prior to the date ----------------------- hereof, neither such Buyer, nor any Affiliate of this Agreementsuch Buyer, the Company shall not enter into any Prohibited Transaction without the prior written consent foreign or domestic, which (x) had knowledge of the Investortransactions contemplated hereby, which consent may be withheld (y) has or shares discretion relating to such Buyer's investments or trading or information concerning such Buyer's investments, including in the sole and absolute discretion respect of the Investor. For the purposes of this AgreementSecurities, the term “Prohibited Transaction” shall refer to: and (iz) the issuance by the Company of any rightsis subject to such Buyer's review or input concerning such Affiliate's investments or trading (collectively, warrants or options to subscribe for or purchase Common Stock"TRADING AFFILIATES") has, or any other securities directly or indirectly convertible into indirectly, effected or exchangeable or exercisable for Common Stock, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation agreed to the market price of Common Stock, including by way of one or more resets to effect any fixed price; (ii) any “at-the-market offering” short sale (as defined in Rule 415(a)(4200 under Regulation SHO), whether or not against the box, established any "put equivalent position" (as defined in Rule 16a-1(h) under the Securities Act Exchange Act) with respect to the Common Stock, borrowed or pre-borrowed any successor rule thereto) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement shares of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the saleStock, but not afterwards; and or granted any other right (iii) any equity line or other form of financing that is substantially similar to the financing provided for under this Agreement, provided that any future issuance by the Company of a convertible security (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock or otherwise sought to hedge its position in the Securities each, a firm commitment Rule 144A offering "PROHIBITED TRANSACTION"). Prior to qualified institutional buyersthe earliest to occur of (i) the termination of this Agreement, (ii) the Effective Date or (iii) the Effectiveness Deadline, such Buyer shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in (a) a Prohibited Transaction nor (b) any sale, assignment, pledge, hypothecation, put, call, or other transfer of any of the shares of Common Stock, warrants or other securities of the issuer acquired hereunder. Notwithstanding the foregoing, if such Buyer or any Trading Affiliate is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Buyer's or Trading Affiliate's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Buyer's or Trading Affiliate's assets, the representations set forth above shall only apply with respect to the portion of the assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Prohibited Transactions. During Since the term earlier 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 in the sole and absolute discretion of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (ia) the issuance such time as such Investor was first contacted by the Company of any rights, warrants or options to subscribe for or purchase Common Stock, the Placement Agent or any other securities Person acting on behalf of the Company or the Placement Agent regarding the transactions contemplated hereby or (b) thirty (30) days prior to the date hereof, neither such Investor nor any Affiliate of such Investor which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to such Investor’s investments or trading or information concerning such Investor’s investments, including in respect of the Securities, or (z) is subject to such Investor’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly convertible into indirectly, effected or exchangeable agreed to effect any short sale, whether or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) established any “at-the-market offeringput equivalent position” (as defined in Rule 415(a)(416a-1(h) under the Securities Act or any successor rule thereto▇▇▇▇ ▇▇▇) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this AgreementCommon Stock, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock or otherwise sought to hedge its position in the Securities (each, a firm commitment Rule 144A offering “Prohibited Transaction”). Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to qualified institutional buyersthe identification of the availability of, or securing of, available shares to borrow in order to effect Short Sales or similar transactions in the future Such Investor acknowledges that the representations, warranties and covenants contained in this Section 5.11 are being made for the benefit of the Investors as well as the Company and that each of the other Investors shall have an independent right to assert any claims against such Investor arising out of any breach or violation of the provisions of this Section 5.11. Notwithstanding the foregoing, and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) no Investor makes any representation, warranty or covenant hereby that it will not engage in effecting transactions in any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 9.7, (ii) no Investor shall be restricted or prohibited from effecting any transactions in any securities of the Company in accordance with applicable securities laws from and after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 9.7 and (iii) no Investor shall have any duty of confidentiality to the Company or its Subsidiaries after the issuance of the initial press release as described in Section 9.7. Notwithstanding the foregoing, in the case of a Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Investor’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Prohibited Transactions. During the term last thirty (30) days prior to the date hereof, neither such Investor nor any Affiliate of this Agreement, the Company shall not enter into any Prohibited Transaction without the prior written consent such Investor which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to such Investor’s investments or trading or information concerning such Investor’s investments, which consent may be withheld including in the sole and absolute discretion respect of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (i) the issuance by the Company of any rights, warrants or options to subscribe for or purchase Common StockSecurities, or any other securities (z) is subject to such Investor’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly convertible into indirectly, effected or exchangeable agreed to effect any short sale, whether or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) established any “at-the-market offeringput equivalent position” (as defined in Rule 415(a)(416a-1(h) under the Securities Act or any successor rule thereto▇▇▇▇ ▇▇▇) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this AgreementCommon Stock, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock or otherwise sought to hedge its position in the Securities (each, a “Prohibited Transaction”). Until the end of the Effectiveness Period (as defined in the Registration Rights Agreement), so long as any Investor continues to hold any Securities, such Investor shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a firm commitment Rule 144A offering Prohibited Transaction; provided, however, that the provisions of this sentence shall not apply during any period when either (i) the bid price per share of the Common Stock is more than $3.00 per share (appropriately adjusted for any stock split, reverse stock split, stock dividend or other reclassification or combination of the Common Stock occurring after the date hereof) or (ii) a Registration Statement covering the Registrable Securities (as defined in the Registration Rights Agreement) is required to qualified institutional buyersbe effective under the terms of the Registration Rights Agreement but is not effective and available for resales of the Registrable Securities (other than as a result of an Allowed Delay). Such Investor acknowledges that the representations, warranties and covenants contained in this Section 5.11 are being made for the benefit of the Investors as well as the Company and that each of the other Investors shall have an independent right to assert any claims against such Investor arising out of any breach or violation of the provisions of this Section 5.11.

Prohibited Transactions. During the term last thirty (30) days prior to the date of this Agreementany conversion of a Note, neither the Company shall not enter into Purchaser holding such Note nor any Prohibited Transaction without the prior written consent Affiliate of such Purchaser which (x) had knowledge of the Investortransactions contemplated hereby and thereby, which consent may be withheld (y) has or shares discretion relating to such Purchaser’s investments or trading or information concerning such Purchaser’s investments, including in the sole and absolute discretion respect of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (i) the issuance by the Company of any rights, warrants or options to subscribe for or purchase Common StockSecurities, or any other securities (z) is subject to such Purchaser’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly convertible into indirectly, effected or exchangeable agreed to effect any short sale, whether or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) established any “at-the-market offeringput equivalent position” (as defined in Rule 415(a)(416a-1(h) under the Securities Act or any successor rule theretoExchange Act) of with respect to the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement shares of Common Stock where the price per share of such Common Stock is fixed issued upon signing of definitive documentation conversion of the sale, but not afterwards; and Notes pursuant to Section 6 thereof (iii) any equity line or other form of financing that is substantially similar to the financing provided for under this Agreement, provided that any future issuance by the Company of a convertible security (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion PriceCommon Stock”) in the event of stock splits), dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of granted any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events right (including, without limitation, any put or call option) with respect to the type Conversion Common Stock or with respect to any security that includes, relates to or derived any significant part of its value from the Conversion Common Stock or otherwise sought to hedge its position in the Securities (each, a “Prohibited Transaction”). Prior to the conversion price adjustments customarily found of such Note, the Purchaser shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a firm commitment Rule 144A offering Prohibited Transaction. Such Purchaser acknowledges that the representations, warranties and covenants contained in this Section 4.5 are being made for the benefit of the Purchasers as well as the Company and that each of the other Purchasers shall have an independent right to qualified institutional buyersassert any claims against such Purchaser arising out of any breach or violation of the provisions of this Section 4.5.

Prohibited Transactions. During the term of this Agreement, the Company shall Such Investor does not enter into currently have any Prohibited Transaction without the prior written consent of the Investor, which consent may be withheld short position in the sole and absolute discretion Common Stock. Since the earlier to occur of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (i) the issuance by the Company of any rights, warrants or options to subscribe for or purchase Common Stock, or any other securities directly or indirectly convertible into or exchangeable or exercisable for Common Stock, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation last thirty (30) days prior to the market price of Common Stock, including by way of one or more resets to any fixed price; date hereof and (ii) the time such Investor was first contacted with respect to the transactions contemplated hereby, neither such Investor nor any “at-the-market offering” Affiliate of such Investor which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to such Investor's investments or trading or information concerning such Investor's investments, including in respect of the Securities, or (z) is subject to such Investor's review or input concerning such Affiliate's investments or trading (collectively, "Trading Affiliates") has, directly or indirectly, effected or agreed to effect any short sale (as defined in Rule 415(a)(4200(a) of Regulation SHO), whether or not against the box, established any "put equivalent position" (as defined in Rule 16a-1(h) under the Securities Act ▇▇▇▇ ▇▇▇) with respect to the Common Stock, borrowed or pre-borrowed any successor rule thereto) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement shares of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the saleStock, but not afterwards; and granted any other right (iii) any equity line or other form of financing that is substantially similar to the financing provided for under this Agreement, provided that any future issuance by the Company of a convertible security (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock, entered into any direct or indirect stock pledge, forward sales contract, swap, or similar arrangement (including on a total return basis), sales or other transactions through non-U.S. broker dealers or foreign regulated brokers, or otherwise sought to hedge its position in the Securities (each, a "Prohibited Transaction"). Prior to the earlier to occur of (i) the termination of this Agreement or, (ii) one-hundred twenty (120) days after the public announcement of the transactions contemplated hereby, such Investor shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a firm commitment Rule 144A offering Prohibited Transaction nor any sale, assignment, pledge, hypothecation, put, call, or other transfer of any of the Common Stock or other securities acquired hereunder. Such Investor acknowledges that the representations, warranties and covenants contained in this Section 5.11 are being made for the benefit of the Investors as well as the Company and that each of the other Investors shall have an independent right to qualified institutional buyersassert any claims against such Investor arising out of any breach or violation of the provisions of this Section 5.11.

Prohibited Transactions. During Since the term of this Agreement, time the Company shall not enter into any Prohibited Transaction without the prior written consent Investor learned of the InvestorPrivate Placement, which consent may be withheld in neither the sole and absolute discretion Investor nor any Affiliate of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: such Investor that (i) has or had knowledge of the issuance by the Company of any rightstransactions contemplated hereby, warrants or options to subscribe for or purchase Common Stock, or any other securities directly or indirectly convertible into or exchangeable or exercisable for Common Stock, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) has or shares discretion relating to such Investor’s investments or trading or information concerning such Investor’s investments, including in respect of the Securities, or (iii) is subject to such Investor’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”), directly or indirectly, effected or agreed to effect any short sale, whether or not against the box, established any “at-the-market offeringput equivalent position” (as defined in Rule 415(a)(416a-1(h) under the Securities Act or any successor rule thereto▇▇▇▇ ▇▇▇) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this AgreementCommon Stock, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock or otherwise sought to hedge its position in the Securities (each, a “Prohibited Transaction”). Such Investor shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a firm commitment Rule 144A offering Prohibited Transaction during the period from the date hereof until such time as (i) the transactions contemplated by this Agreement are first publicly announced or (ii) this Agreement is terminated pursuant to qualified institutional buyersSection 6.3 hereof. Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to the identification of the availability of, or securing of, available shares to borrow in order to effect short sales or similar transactions in the future. Such Investor acknowledges that the representations and warranties contained in this Section 5.11 are being made for the benefit of all Investors as well as the Company and that each of the other Investors shall have an independent right to assert any claims against any Investor arising out of any breach or violation of the provisions of this Section 5.11.

Prohibited Transactions. During Since the term of this Agreement, time the Company shall not enter into any Prohibited Transaction without the prior written consent Investor learned of the InvestorPrivate Placement, which consent may be withheld in neither the sole and absolute discretion Investor nor any Affiliate of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: such Investor that (i) has or had knowledge of the issuance by the Company of any rightstransactions contemplated hereby, warrants or options to subscribe for or purchase Common Stock, or any other securities directly or indirectly convertible into or exchangeable or exercisable for Common Stock, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) has or shares discretion relating to such Investor’s investments or trading or information concerning such Investor’s investments, including in respect of the Securities, or (iii) is subject to such Investor’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”), directly or indirectly, effected or agreed to effect any short sale, whether or not against the box, established any “at-the-market offeringput equivalent position” (as defined in Rule 415(a)(416a-1(h) under the Securities Act or any successor rule thereto▇▇▇▇ ▇▇▇) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this AgreementCommon Stock, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock or otherwise sought to hedge its position in the Shares (each, a “Prohibited Transaction”). Such Investor shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a firm commitment Rule 144A offering Prohibited Transaction during the period from the date hereof until such time as (i) the transactions contemplated by this Agreement are first publicly announced or (ii) this Agreement is terminated pursuant to qualified institutional buyersSection 6.3 hereof. Such Investor acknowledges that the representations and warranties contained in this Section 5.11 are being made for the benefit of all Investors as well as the Company and that each of the other Investors shall have an independent right to assert any claims against any Investor arising out of any breach or violation of the provisions of this Section 5.11.

Prohibited Transactions. During Since the term earlier 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 in the sole and absolute discretion of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (ia) the issuance such time as such Investor was first contacted by the Company of any rights, warrants or options to subscribe for or purchase Common Stock, or any other securities Person acting on behalf of the Company regarding the transactions contemplated hereby or (b) thirty (30) days prior to the date hereof, neither such Investor nor any Affiliate of such Investor which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to such Investor’s investments or trading or information concerning such Investor’s investments, including in respect of the Securities, or (z) is subject to such Investor’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly convertible into indirectly, effected or exchangeable agreed to effect any short sale, whether or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) established any “at-the-market offeringput equivalent position” (as defined in Rule 415(a)(416a−1(h) under the Securities Act or any successor rule thereto1934 Act) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this AgreementCommon Stock, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock or otherwise sought to hedge its position in the Securities (each, a firm commitment Rule 144A offering “Prohibited Transaction”). Notwithstanding the foregoing, in the case of an Investor that is a multimanager investment vehicle whereby separate portfolio managers manage separate portions of such Investor’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to qualified institutional buyersthe portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other than to other Persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with the Contemplated Transactions (including the existence and terms of the Contemplated Transaction). Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to the identification of the availability of, or securing of, available shares to borrow in order to effect any short sales or similar transactions in the future. Such Investor acknowledges that the representations, warranties and covenants contained in this Section 5.12 are being made for the benefit of the Investors as well as the Company and that each of the other Investors shall have an independent right to assert any claims against such Investor arising out of any breach or violation of the provisions of this Section 5.12.

Prohibited Transactions. During the term last thirty (30) days prior to the date hereof, neither such Investor nor any Affiliate of this Agreement, the Company shall not enter into any Prohibited Transaction without the prior written consent such Investor which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to such Investor’s investments or trading or information concerning such Investor’s investments, which consent may be withheld including in the sole and absolute discretion respect of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (i) the issuance by the Company of any rights, warrants or options to subscribe for or purchase Common StockSecurities, or any other securities (z) is subject to such Investor’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly convertible into indirectly, effected or exchangeable agreed to effect any short sale, whether or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) established any “at-the-market offeringput equivalent position” (as defined in Rule 415(a)(416a-1(h) under the Securities Act or any successor rule thereto1▇▇▇ ▇▇▇) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this AgreementCommon Stock, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock or otherwise sought to hedge its position in the Securities (each, a “Prohibited Transaction”). Notwithstanding the foregoing, for the avoidance of doubt, shares of Common Stock held by an Investor on or prior to the date hereof may be sold after the public announcement of the sale of the Units without such sale constituting a "Prohibited Transaction." Prior to the earliest to occur of (i) the termination of this Agreement, (ii) the Effective Date or (iii) the Effectiveness Deadline, such Investor shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a firm commitment Rule 144A offering Prohibited Transaction. Such Investor acknowledges that the representations, warranties and covenants contained in this Section 5.11 are being made for the benefit of the Investors as well as the Company and that each of the other Investors shall have an independent right to qualified institutional buyersassert any claims against such Investor arising out of any breach or violation of the provisions of this Section 5.11.

Prohibited Transactions. During Since the term such time as such Investor was first contacted by the Company or any other Person acting on behalf of the Company regarding the transactions contemplated hereby through the public announcement of the Transaction, neither such Investor nor any Affiliate of such Investor which (a) had knowledge of the transactions contemplated hereby, (b) has or shares discretion relating to such Investor’s investments or trading or information concerning such Investor’s investments, including in respect of the Securities, or (c) is subject to such Investor’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly, effected or agreed to effect, or will directly or indirectly effect, any short sale, whether or not against the box, established any “put equivalent position” (as defined in Rule 16a-1(h) under the ▇▇▇▇ ▇▇▇) with respect to the Common Shares, granted any other right (including, without limitation, any put or call option) with respect to the Common Shares or with respect to any security that includes, relates to or derived any significant part of its value from the Common Shares or otherwise sought to hedge its position in the Securities (each, a “Prohibited Transaction”). Such Investor acknowledges that the representations, warranties and covenants contained in this Section 5.12 are being made for the benefit of the Investors as well as the Company and that each of the other Investors shall have an independent right to assert any claims against such Investor arising out of any breach or violation of the provisions of this Agreement, the Company shall not enter into any Prohibited Transaction without the prior written consent Section 5.12. 5.13 Beneficial Ownership. Immediately following such Investor’s purchase of the Securities hereunder, such Investor, which consent may together with its Affiliates, will not beneficially own or be withheld in deemed the sole beneficial owner of more than 9.9999% of all such Common Shares and absolute discretion other voting securities of the InvestorCompany. For the purposes of this AgreementSection 5.13, the term “Prohibited Transaction” beneficial ownership shall refer to: (i) the issuance by the Company of any rights, warrants or options to subscribe for or purchase Common Stock, or any other securities directly or indirectly convertible into or exchangeable or exercisable for Common Stock, at an effective conversion, exchange or exercise price that varies or may vary be determined in accordance with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) any “at-the-market offering” (as defined in Rule 415(a)(4) under the Securities Act or any successor rule theretoSection 13(d) of the Company’s securities 1934 Act. The Company acknowledges and agrees that each Investor has not made any representations or warranties with respect to the transactions contemplated by or on behalf of the Company, Transaction Documents other than (A) a customarythose specifically set forth in this Section 5 and, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar to the financing provided for under this Agreement, provided that any future issuance by the Company of a convertible security (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event case of stock splitseach Canadian investor, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, the type of conversion price adjustments customarily found in a firm commitment Rule 144A offering to qualified institutional buyersSchedule IV hereto.

Prohibited Transactions. During Since the term earlier 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 in the sole and absolute discretion of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (ia) the issuance such time as such Investor was first contacted by the Company of any rights, warrants or options to subscribe for or purchase Common Stock, or any other securities Person acting on behalf of the Company regarding the transactions contemplated hereby or (b) thirty (30) days prior to the date hereof, neither such Investor nor any Affiliate of such Investor which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to such Investor’s investments or trading or information concerning such Investor’s investments, including in respect of the Securities, or (z) is subject to such Investor’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, and/or in the future, directly or indirectly convertible into indirectly, effected or exchangeable agreed to effect any short sale, whether or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) established any “at-the-market offeringput equivalent position” (as defined in Rule 415(a)(416a-1(h) under the Securities Act or any successor rule thereto1▇▇▇ ▇▇▇) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this AgreementCommon Stock, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock or otherwise sought to hedge its position in the Securities (each, a firm commitment Rule 144A offering “Prohibited Transaction”). Notwithstanding the foregoing, in the case of an Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Investor’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to qualified institutional buyersthe portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other than to other Persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with the Contemplated Transactions (including the existence and terms of the Contemplated Transaction). Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to the identification of the availability of, or securing of, available shares to borrow in order to effect any short sales or similar transactions in the future. Such Investor acknowledges that the representations, warranties and covenants contained in this Section 5.9 are being made for the benefit of the Investors as well as the Company and that each of the other Investors shall have an independent right to assert any claims against such Investor arising out of any breach or violation of the provisions of this Section 5.9.

Prohibited Transactions. During Since the term of this Agreement, earlier of: (a) such time as such Stockholder was first contacted by the Company shall not enter into Buyer or any Prohibited Transaction without the prior written consent other Person acting on behalf of the InvestorBuyer regarding the transactions contemplated hereby or (b) [*] prior to the date hereof, which consent may be withheld in the sole and absolute discretion neither such Stockholder nor any Affiliate of such Stockholder which: (x) had knowledge of the Investor. For transactions contemplated hereby, (y) has or shares discretion relating to such Stockholder's investments or trading or information concerning such Stockholder's investments, including in respect of the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (i) the issuance by the Company of any rights, warrants or options to subscribe for or purchase Buyer Common Stock, or any other securities (z) is subject to such Stockholder's review or input concerning such Affiliate's investments or trading (collectively, "Trading Affiliates") has, directly or indirectly convertible into indirectly, other than in compliance with applicable Law, effected or exchangeable or exercisable for Common Stockagreed to effect any short sale, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to established any fixed price; (ii) any “at-the-market offering” "put equivalent position" (as defined in Rule 415(a)(416a-1(h) under the Securities Act or any successor rule theretoExchange Act) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this AgreementBuyer Common Stock, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Buyer Common Stock or with respect to any security that includes, relates to or derives any significant part of conversion price adjustments customarily found its value from the Buyer Common Stock or otherwise sought to hedge its position in the Buyer Common Stock (each, a "Prohibited Transaction"). Prior to the earlier to occur of the termination of this Agreement and the Closing Date, such Stockholder shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a firm commitment Rule 144A offering Prohibited Transaction other than in compliance with applicable Law. Such Stockholder acknowledges that the representations, warranties and covenants contained in this Section 4.12 are being made for the benefit of the Stockholder as well as the Buyer and that each of the other Stockholders shall have an independent right to qualified institutional buyersassert any claims against such Stockholder arising out of any breach or violation of the provisions of this Section 4.12.

Prohibited Transactions. 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 in the sole and absolute discretion of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (i) During the issuance by last thirty (30) days prior to the Company date hereof, neither such Purchaser nor any Affiliate of any rightssuch Purchaser, warrants foreign or options to subscribe for or purchase Common Stockdomestic, or any other securities has, directly or indirectly convertible into indirectly, effected or exchangeable or exercisable for Common Stock, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation agreed to the market price of Common Stock, including by way of one or more resets to effect any fixed price; (ii) any “at-the-market offering” "short sale" (as defined in Rule 415(a)(4200 under Regulation SHO), whether or not against the box, established any "put equivalent position" (as defined in Rule 16a-1(h) under the Securities Act 1934 Act) with respect to the Com▇▇▇ ▇▇▇▇k, borrowed or pre-borrowed any successor rule thereto) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement shares of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the saleStock, but not afterwards; and or granted any other right (iii) any equity line or other form of financing that is substantially similar to the financing provided for under this Agreement, provided that any future issuance by the Company of a convertible security (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock or otherwise sought to hedge its position in the Company' securities (each, a firm commitment Rule 144A offering "PROHIBITED TRANSACTION"). Notwithstanding the foregoing, with respect to qualified institutional buyersLB I Group, Inc., the representations contained in this Section 4(l) shall only apply to the Equity Strategies Group-Opportunity Fund, as currently configured, of Lehman Brothers Inc., and shall n▇▇ ▇▇▇ly to any other affiliate, subsidiary, business unit, area, group of Lehman Brothers Inc. (ii) Prior to the earliest to occur of (i) the termination of this Agreement, (ii) the date the Registration Statement, as defined below, is declared effective by the Securities and Exchange Commission or (iii) 90 days from the Closing Date (120 days if the registration statement is reviewed by the SEC) such Purchaser shall not, and shall cause its Affiliates not to, engage, directly or indirectly, in (a) a Prohibited Transaction nor (b) any sale, assignment, pledge, hypothecation, put, call, or other transfer of any of the shares of Common Stock, warrants or other securities of the issuer acquired hereunder.

Prohibited Transactions. During Since the term earlier 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 in the sole and absolute discretion of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (ia) the issuance such time as such Investor was first contacted by the Company of any rights, warrants or options to subscribe for or purchase Common Stock, or any other securities Person acting on behalf of the Company regarding the transactions contemplated hereby or (b) thirty (30) days prior to the date hereof, neither such Investor nor any Affiliate of such Investor nor any Person acting on behalf of such Investor which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to such Investor’s investments or trading or information concerning such Investor’s investments, including in respect of the Securities, or (z) is subject to such Investor’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly convertible into indirectly, effected or exchangeable agreed to effect any short sale, whether or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) established any “at-the-market offeringput equivalent position” (as defined in Rule 415(a)(416a-1(h) under the Securities Act or any successor rule thereto1934 Act) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this AgreementCommon Stock, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events includingi▇▇▇▇▇▇▇▇, without limitation, any put or call option) with respect to the type Common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock or otherwise sought to hedge its position in the Securities (each, a “Prohibited Transaction”). Prior to the earliest to occur of (i) the termination of this Agreement, (ii) the Effective Date or (iii) the Effectiveness Deadline, such Investor shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a firm commitment Rule 144A offering Prohibited Transaction. Such Investor acknowledges that the representations, warranties and covenants contained in this Section 5.11 are being made for the benefit of the Investors as well as the Company and that each of the other Investors shall have an independent right to qualified institutional buyersassert any claims against such Investor arising out of any breach or violation of the provisions of this Section 5.11.

Prohibited Transactions. During the term last thirty (30) days prior to the date hereof, neither the Investor nor any Affiliate of the Investor which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to the Investor’s investments or trading or information concerning the Investor’s investments, including in respect of the Shares, or (z) is subject to the Investor’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly, (a) acquired, agreed to acquire (other than pursuant to this Agreement), the Company shall not enter into any Prohibited Transaction without the prior written consent of the Investoroffered for sale, which consent may be withheld in the sole and absolute discretion of the Investor. For the purposes of this Agreementsold, the term “Prohibited Transaction” shall refer to: (i) the issuance by the Company pledged or otherwise disposed of any rights, warrants or options to subscribe for or purchase Common Stock, (b) effected or agreed to effect any other securities directly short sale, whether or indirectly convertible into or exchangeable or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) established any “at-the-market offeringput equivalent position” (as defined in Rule 415(a)(416a-1(h) under the Securities Act Exchange Act) with respect to the Common Stock, granted any other right (including, without limitation, any put or call option) with respect to the Common Stock or with respect to any successor rule theretosecurity that includes, relates to or derived any significant part of its value from the Common Stock or otherwise sought to hedge its position in the Shares or (c) entered into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of any securities of the Company’s , whether any such transaction described in clauses (a), (b) or (c) was or is to be settled by delivery of securities by or on behalf of the Company, other than securities, cash or otherwise (A) each, a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar to the financing provided for under this Agreement, provided that any future issuance by the Company of a convertible security (“Convertible SecurityProhibited Transaction”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, the type of conversion price adjustments customarily found in a firm commitment Rule 144A offering to qualified institutional buyers).

Prohibited Transactions. During Since the term earlier 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 in the sole and absolute discretion of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (ia) the issuance such time as Assignor was first contacted by the Company of any rights, warrants or options to subscribe for or purchase Common Stock, Assignee or any other securities Person acting on behalf of Assignee regarding the transactions contemplated hereby, or (b) thirty (30) days prior to the date hereof, neither Assignor nor any affiliate of Assignor which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to Assignor’s investments or trading or information concerning Assignor’s investments, including in respect of the Shares, or (z) is subject to Assignor’s review or input concerning such affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly convertible into indirectly, effected or exchangeable agreed to effect any short sale, whether or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) established any “at-the-market offeringput equivalent position” (as defined in Rule 415(a)(416a-1(h) under the Securities Act or any successor rule thereto▇▇▇▇ ▇▇▇) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this AgreementCommon Stock, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock or otherwise sought to hedge its position in the Shares (each, a “Prohibited Transaction”), or has otherwise engaged in any purchase, sale of, or other trading activity relating to, the common stock of Assignee. Prior to the earliest to occur of (i) the termination of this Agreement, or (ii) the effective date of any registration statement under the 1933 Act registering the Shares (or successor securities to the Shares), Assignor shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a firm commitment Rule 144A offering to qualified institutional buyersProhibited Transaction.

Prohibited Transactions. During Since the term earlier 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 in the sole and absolute discretion of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (ia) the issuance by the Company of any rights, warrants or options to subscribe for or purchase Common Stock, or any other securities directly or indirectly convertible into or exchangeable or exercisable for Common Stock, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) any “at-the-market offering” (such time as defined in Rule 415(a)(4) under the Securities Act or any successor rule thereto) of the Company’s securities such Purchaser was first contacted by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering Company regarding the transactions contemplated hereby or (Bb) an unregistered private placement of Common Stock where thirty (30) days prior to the price per share date hereof, neither such Purchaser nor any Affiliate of such Common Stock is fixed upon signing of definitive documentation Purchaser which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to such Purchaser's investments or trading or information concerning such Purchaser's investments, including in respect of the Securities, or (z) is subject to such Purchaser's review or input concerning such Affiliate's investments or trading (collectively, "Trading Affiliates") has, directly or indirectly, effected or agreed to effect any short sale, but whether or not afterwards; and against the box, established any "put equivalent position" (iiias defined in Rule 16a-1(h) any equity line or other form of financing that is substantially similar under the Exchange Act) with respect to the financing provided for under this AgreementCommon Stock, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock or otherwise sought to hedge its position in the Securities (each, a "Prohibited Transaction"). Prior to the earliest to occur of (i) the termination of this Agreement, (ii) the Effective Date or (iii) the Effectiveness Deadline, such Purchaser shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a firm commitment Rule 144A offering Prohibited Transaction. Such Purchaser acknowledges that the representations, warranties and covenants contained in this Section 2(n) are being made for the benefit of the Purchasers as well as the Company and that each of the other Purchasers shall have an independent right to qualified institutional buyersassert any claims against such Purchaser arising out of any breach or violation of the provisions of this Section 2(n).

Prohibited Transactions. During Since the term earlier 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 in the sole and absolute discretion of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (ia) the issuance such time as such Investor was first contacted by the Company of any rights, warrants or options to subscribe for or purchase Common Stock, or any other securities Person acting on behalf of the Company regarding the transactions contemplated hereby or (b) thirty (30) days prior to the date hereof, neither such Investor nor any Affiliate of such Investor which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to such Investor’s investments or trading or information concerning such Investor’s investments, including in respect of the Securities, or (z) is subject to such Investor’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly convertible into indirectly, effected or exchangeable agreed to effect any short sale, whether or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) established any “at-the-market offeringput equivalent position” (as defined in Rule 415(a)(416a-1(h) under the Securities Act or any successor rule thereto1▇▇▇ ▇▇▇) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this AgreementCommon Stock, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock or otherwise sought to hedge its position in the Securities (each, a “Prohibited Transaction”). Prior to the earliest to occur of (i) the termination of this Agreement, (ii) the Effective Date or (iii) the Effectiveness Deadline, such Investor shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a firm commitment Rule 144A offering Prohibited Transaction (other than any short sale, whether or not against the box). Such Investor shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in any short sale, whether or not against the box, prior to qualified institutional buyersthe earliest to occur of (i) the termination of this Agreement or (ii) the Closing Date. Such Investor acknowledges that the representations, warranties and covenants contained in this Section 5.12 are being made for the benefit of the Investors as well as the Company and that each of the other Investors shall have an independent right to assert any claims against such Investor arising out of any breach or violation of the provisions of this Section 5.12. The Company acknowledges and agrees that each Investor has not made any representations or warranties with respect to the transactions contemplated by the Transaction Documents other than those specifically set forth in this Section 5.

Prohibited Transactions. During the term of this Agreement, the Company shall not enter into any Prohibited Transaction without the prior written consent (i) Each of the InvestorBuyers agrees not to engage in any hedging or other related or similar transactions involving the Common Stock, which consent except a Buyer may be withheld engage in such transactions with respect to Common Stock: (a) it already owns or (b) Common Stock it does not own; provided, however, that such Buyer has delivered a notice to convert the sole and absolute discretion units into such number of the Investorshares of Common Stock. For the purposes of this Agreement, the term “Prohibited Transactionhedging or other related or similar transactions” shall refer to: include, without limitation, effecting any short sale or having in effect any short position (iregardless of when such position was entered into) the issuance by the Company or any purchase, sale or grant of any rightsright (including, warrants without limitation, any put or options call option) with respect to subscribe for the Common Stock or purchase with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from such Common Stock and entering into any swap or other arrangement that transfers to a person, in whole or in part, any of the economic consequences of ownership of the Common Stock, or whether any other securities directly or indirectly convertible into or exchangeable or exercisable for Common Stock, at an effective conversion, exchange or exercise price that varies or may vary with or such transaction described in this paragraph is otherwise issuable in relation to the market price be settled by delivery of Common StockStock or such other securities, including by way of one in cash or more resets to any fixed price; otherwise. (ii) During the last thirty (30) days prior to the Closing Date, none of the Buyers nor any Affiliate of such Buyer, foreign or domestic, has, directly or indirectly, effected or agreed to effect any “at-the-market offeringshort sale” (as defined in Rule 415(a)(4200 under Regulation SHO), whether or not against the box, established any “put equivalent position” (as defined in Rule 16a-1(h) under the Securities Act 1934 Act) with respect to the Common Stock, borrowed or pre-borrowed any successor rule thereto) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement shares of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the saleStock, but not afterwards; and or granted any other right (iii) any equity line or other form of financing that is substantially similar to the financing provided for under this Agreement, provided that any future issuance by the Company of a convertible security (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock or otherwise sought to hedge its position in the Securities (each, a firm commitment Rule 144A offering to qualified institutional buyers“Prohibited Transaction”). (iii) For a period of 90 days from the Closing Date, none of the Buyers shall, nor shall such Buyer cause any of its Affiliates to, engage, directly or indirectly, in (a) a Prohibited Transaction or (b) any sale, assignment, pledge, hypothecation, put, call, or other transfer of any of the shares of Common Stock, warrants or other securities of the issuer acquired hereunder.

Prohibited Transactions. During Since the term earlier 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 in the sole and absolute discretion of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (ia) the issuance such time as such Investor was first contacted by the Company of any rights, warrants or options to subscribe for or purchase Common Stock, or any other securities Person acting on behalf of the Company regarding the transactions contemplated hereby or (b) thirty (30) days prior to the date hereof, neither such Investor nor any Affiliate of such Investor which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to such Investor’s investments or trading or information concerning such Investor’s investments, including in respect of the Securities, or (z) is subject to such Investor’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly convertible into indirectly, effected or exchangeable agreed to effect any Short Sale, whether or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) established any “at-the-market offeringput equivalent position” (as defined in Rule 415(a)(416a-1(h) under the Securities Act or any successor rule thereto▇▇▇▇ ▇▇▇) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this AgreementCommon Stock, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock or otherwise sought to hedge its position in the Securities (each, a firm commitment Rule 144A offering “Prohibited Transaction”). Notwithstanding the foregoing, in the case of an Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Investor’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to qualified institutional buyers.the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other than to other Persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with the Contemplated Transactions (including the existence and terms of the

Prohibited Transactions. During Since the term earlier 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 in the sole and absolute discretion of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (ia) the issuance such time as such Investor was first contacted by the Company of any rights, warrants or options to subscribe for or purchase Common Stock, or any other securities Person acting on behalf of the Company regarding the transactions contemplated hereby or (b) thirty (30) days prior to the date hereof, neither such Investor nor any Affiliate of such Investor which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to such Investor’s investments or trading or information concerning such Investor’s investments, including in respect of the Securities, or (z) is subject to such Investor’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly convertible into indirectly, effected or exchangeable agreed to effect any short sale, whether or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) established any “at-the-market offeringput equivalent position” (as defined in Rule 415(a)(416a−1(h) under the Securities Act or any successor rule thereto1▇▇▇ ▇▇▇) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this AgreementCommon Stock, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock or otherwise sought to hedge its position in the Securities (each, a firm commitment Rule 144A offering “Prohibited Transaction”). Notwithstanding the foregoing, in the case of an Investor that is a multimanager investment vehicle whereby separate portfolio managers manage separate portions of such Investor’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to qualified institutional buyersthe portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other than to other Persons party to this Agreement, such Investor has maintained the confidentiality of all disclosures made to it in connection with the Contemplated Transactions (including the existence and terms of the Contemplated Transaction). Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to the identification of the availability of, or securing of, available shares to borrow in order to effect any short sales or similar transactions in the future. Such Investor acknowledges that the representations, warranties and covenants contained in this Section 5.12 are being made for the benefit of the Investors as well as the Company and that each of the other Investors shall have an independent right to assert any claims against such Investor arising out of any breach or violation of the provisions of this Section 5.12.

Prohibited Transactions. (a) For each Investor other than Morgan Stanley & Co.: During the term last thirty (30) days prior to the ▇▇▇▇ h▇▇▇▇▇, neither such Investor nor any Affiliate of this Agreement, the Company shall not enter into any Prohibited Transaction without the prior written consent such Investor which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to such Investor's investments or trading or information concerning such Investor's investments, which consent may be withheld including in the sole and absolute discretion respect of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (i) the issuance by the Company of any rights, warrants or options to subscribe for or purchase Common StockSecurities, or any other securities (z) is subject to such Investor's review or input concerning such Affiliate's investments or trading (collectively, "Trading Affiliates") has, directly or indirectly convertible into indirectly, effected or exchangeable agreed to effect any short sale, whether or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to established any fixed price; (ii) any “at-the-market offering” "put equivalent position" (as defined in Rule 415(a)(416a-1(h) under the Securities Act or any successor rule thereto1934 Act) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this AgreementCommon Stock, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including▇▇▇▇▇▇ing, without limitation, any put or call option) with respect to the type Common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock or otherwise sought to hedge its position in the Securities or sold any Common Stock (each, a "Prohibited Transaction"). Prior to the earliest to occur of (i) the termination of this Agreement, (ii) the Effective Date or (iii) the Effectiveness Deadline, such Investor shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a firm commitment Prohibited Transaction. Such Investor acknowledges that the representations, warranties and covenants contained in this Section 5.11 are being made for the benefit of the Investors as well as the Company and that each of the other Investors shall have an independent right to assert any claims against such Investor arising out of any breach or violation of the provisions of this Section 5.11. (b) For Morgan Stanley & Co.: During the last thirty (30) days prior to the ▇▇▇▇ h▇▇▇▇▇, neither the Proprietary Convertibles Desk (the "Desk") of such Investor nor any employee of such Investor who had knowledge of the transactions contemplated hereby (collectively, "Trading Affiliates") has, directly or indirectly, effected or agreed to effect any short sale, whether or not against the box, established any "put equivalent position" (as defined in Rule 144A offering 16a-1(h) under the 1934 Act) with respect to qualified institutional buyersthe Common Stock, granted any other right (▇▇▇▇▇▇ing, without limitation, any put or call option) with respect to the Common Stock or with respect to any security that includes, relates to or derived any significant part of its value from the Common Stock or otherwise sought to hedge its position in the Securities or sold any Common Stock (each, a "Prohibited Transaction"). Prior to the earliest to occur of (i) the termination of this Agreement, (ii) the Effective Date or (iii) the Effectiveness Deadline, such Desk shall not, and shall cause the Trading Affiliates not to, engage, directly or indirectly, in a Prohibited Transaction. Such Investor acknowledges that the representations, warranties and covenants contained in this Section 5.11 are being made for the benefit of the Investors as well as the Company and that each of the other Investors shall have an independent right to assert any claims against such Investor arising out of any breach or violation of the provisions of this Section 5.11.

Prohibited Transactions. During Since the term earlier 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 in the sole and absolute discretion of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (ia) the issuance such time as each Purchaser was first contacted by the Company of any rights, warrants or options to subscribe for or purchase Common Stock, or any other securities Person acting on behalf of the Company regarding the transactions contemplated hereby or (b) thirty (30) days prior to the date hereof, neither such Purchaser nor any affiliate of such Purchaser which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to such Purchaser’s investments or trading or information concerning such Purchaser’s investments, including in respect of the Shares, or (z) is subject to such Purchaser’s review or input concerning such affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly convertible into indirectly, effected or exchangeable agreed to effect any short sale, whether or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) established any “at-the-market offeringput equivalent position” (as defined in Rule 415(a)(416a-1(h) under the Securities Act or any successor rule theretoExchange Act) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this AgreementCommon Stock, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock or otherwise sought to hedge its position in the Shares (each, a “Prohibited Transaction”). Prior to the earliest to occur of (i) the termination of this Agreement, or (ii) the effective date of the registration statement required to be filed by the Company to register the Shares under the Securities Act pursuant to its obligations under the Registration Rights Agreement, each such Purchaser shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a firm commitment Rule 144A offering to qualified institutional buyersProhibited Transaction.

Prohibited Transactions. During Since the term such time as such Investor was first contacted by the Company or any other Person acting on behalf of the Company regarding the transactions contemplated hereby through the public announcement of the Transaction, neither such Investor nor any Affiliate of such Investor which (a) had knowledge of the transactions contemplated hereby, (b) has or shares discretion relating to such Investor’s investments or trading or information concerning such Investor’s investments, including in respect of the Securities, or (c) is subject to such Investor’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly, effected or agreed to effect, or will directly or indirectly effect, any short sale, whether or not against the box, established any “put equivalent position” (as defined in Rule 16a-1(h) under the ▇▇▇▇ ▇▇▇) with respect to the Common Shares, granted any other right (including, without limitation, any put or call option) with respect to the Common Shares or with respect to any security that includes, relates to or derived any significant part of its value from the Common Shares or otherwise sought to hedge its position in the Securities (each, a “Prohibited Transaction”). Such Investor acknowledges that the representations, warranties and covenants contained in this Section 5.10 are being made for the benefit of the Investors as well as the Company and that each of the other Investors shall have an independent right to assert any claims against such Investor arising out of any breach or violation of the provisions of this Agreement, the Company shall not enter into any Prohibited Transaction without the prior written consent Section 5.10. 5.11 Beneficial Ownership. Immediately following such Investor’s purchase of the Securities hereunder, such Investor, which consent may together with its Affiliates, will not beneficially own or be withheld in deemed the sole beneficial owner of more than 9.9999% of all such Common Shares and absolute discretion other voting securities of the InvestorCompany. For the purposes of this AgreementSection 5.11, the term “Prohibited Transaction” beneficial ownership shall refer to: (i) the issuance by the Company of any rights, warrants or options to subscribe for or purchase Common Stock, or any other securities directly or indirectly convertible into or exchangeable or exercisable for Common Stock, at an effective conversion, exchange or exercise price that varies or may vary be determined in accordance with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) any “at-the-market offering” (as defined in Rule 415(a)(4) under the Securities Act or any successor rule theretoSection 13(d) of the Company’s securities 1934 Act. The Company acknowledges and agrees that each Investor has not made any representations or warranties with respect to the transactions contemplated by or on behalf of the Company, Transaction Documents other than (A) a customarythose specifically set forth in this Section 5 and, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar to the financing provided for under this Agreement, provided that any future issuance by the Company of a convertible security (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event case of stock splitseach Canadian investor, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, the type of conversion price adjustments customarily found in a firm commitment Rule 144A offering to qualified institutional buyersSchedule IV hereto.

Prohibited Transactions. During Since 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 in the sole and absolute discretion of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (i) the issuance such time as such Investor was first contacted by the Company of any rights, warrants or options to subscribe for or purchase Common Stock, or any other securities Person acting on behalf of the Company regarding the transactions contemplated hereby through the public announcement of the Transaction, neither such Investor nor any Affiliate of such Investor which (a) had knowledge of the transactions contemplated hereby, (b) has or shares discretion relating to such Investor’s investments or trading or information concerning such Investor’s investments, including in respect of the Securities, or (c) is subject to such Investor’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly, effected or agreed to effect, or will directly or indirectly convertible into effect, any short sale, whether or exchangeable or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) established any “at-the-market offeringput equivalent position” (as defined in Rule 415(a)(416a-1(h) under the Securities Act or any successor rule thereto▇▇▇▇ ▇▇▇) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this AgreementCommon Shares, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Shares or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Shares or otherwise sought to hedge its position in the Securities (each, a firm commitment Rule 144A offering “Prohibited Transaction”). Such Investor acknowledges that the representations, warranties and covenants contained in this Section 5.12 are being made for the benefit of the Investors as well as the Company and that each of the other Investors shall have an independent right to qualified institutional buyersassert any claims against such Investor arising out of any breach or violation of the provisions of this Section 5.12.

Prohibited Transactions. During the term last thirty (30) days prior to the date hereof, neither such Investor nor any Affiliate of this Agreement, the Company shall not enter into any Prohibited Transaction without the prior written consent such Investor which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to such Investor’s investments or trading or information concerning such Investor’s investments, which consent may be withheld including in the sole and absolute discretion respect of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (i) the issuance by the Company of any rights, warrants or options to subscribe for or purchase Common StockSecurities, or any other securities (z) is subject to such Investor’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly convertible into indirectly, effected or exchangeable agreed to effect any short sale, whether or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) established any “at-the-market offeringput equivalent position” (as defined in Rule 415(a)(416a-1(h) under the Securities Act ▇▇▇▇ ▇▇▇) with respect to the Common Stock, borrowed or pre-borrowed any successor rule thereto) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement shares of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the saleStock, but not afterwards; and granted any other right (iii) any equity line or other form of financing that is substantially similar to the financing provided for under this Agreement, provided that any future issuance by the Company of a convertible security (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock or otherwise sought to hedge its position in the Securities (each, a “Prohibited Transaction”). Prior to the earliest to occur of (i) the termination of this Agreement, or (ii) the filing by the Company pursuant to Section 9.7 of a Current Report on Form 8-K disclosing the transactions contemplated by this Agreement, such Investor shall not, and shall cause its Trading Affiliates not to, (A) engage, directly or indirectly, in a firm commitment Rule 144A offering Prohibited Transaction, or (B) effect any sale, assignment, pledge, hypothecation, put, call, transfer or other disposition of any Securities. Such Investor agrees to qualified institutional buyersact in a manner that will not violate the positions of the SEC as set forth in Item 65, Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance.

Prohibited Transactions. During Since the term earlier 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 in the sole and absolute discretion of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (ia) the issuance such time as such Investor was first contacted by the Company of any rights, warrants or options to subscribe for or purchase Common Stock, or any other securities Person acting on behalf of the Company regarding the transactions contemplated hereby or (b) thirty (30) days prior to the date hereof, neither such Investor nor any Affiliate of such Investor nor any Person acting on behalf of such Investor which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to such Investor’s investments or trading or information concerning such Investor’s investments, including in respect of the Securities, or (z) is subject to such Investor’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly convertible into indirectly, effected or exchangeable agreed to effect any short sale, whether or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) established any “at-the-market offeringput equivalent position” (as defined in Rule 415(a)(416a-1(h) under the Securities Act 1934 Act) with respect to the Common Stock, granted any other right (including, ▇▇▇▇▇▇t limitation, any put or any successor rule theretocall option) of with respect to the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where or with respect to any security that includes, relates to or derived any significant part of its value from the price per share of such Common Stock is fixed upon signing or otherwise sought to hedge its position in the Securities (each, a “Prohibited Transaction”). Prior to the earliest to occur of definitive documentation (i) the termination of this Agreement, (ii) the sale, but not afterwards; and Effective Date or (iii) any equity line the Effectiveness Deadline, such Investor shall not, and shall cause its Trading Affiliates not to, engage, directly or other form indirectly, in a Prohibited Transaction. Such Investor acknowledges that the representations, warranties and covenants contained in this Section 5.11 are being made for the benefit of financing that is substantially similar to the financing provided for under this Agreement, provided that any future issuance by Investors as well as the Company and that each of a convertible security (“Convertible Security”) that contains the other Investors shall have an independent right to assert any claims against such Investor arising out of any breach or violation of the provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, the type of conversion price adjustments customarily found in a firm commitment Rule 144A offering to qualified institutional buyers5.11.

Prohibited Transactions. During Since 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 in the sole and absolute discretion of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (i) the issuance such time as such Investor was first contacted by the Company of any rights, warrants or options to subscribe for or purchase Common Stock, or any other securities Person acting on behalf of the Company regarding the transactions contemplated hereby through the public announcement of the Transaction, neither such Investor nor any Affiliate of such Investor which (a) had knowledge of the transactions contemplated hereby, (b) has or shares discretion relating to such Investor's investments or trading or information concerning such Investor's investments, including in respect of the Securities, or (c) is subject to such Investor's review or input concerning such Affiliate's investments or trading (collectively, "Trading Affiliates") has, directly or indirectly, effected or agreed to effect, or will directly or indirectly convertible into effect, any short sale, whether or exchangeable or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to established any fixed price; (ii) any “at-the-market offering” "put equivalent position" (as defined in Rule 415(a)(416a-1(h) under the Securities Act or any successor rule thereto▇▇▇▇ ▇▇▇) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this AgreementCommon Shares, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Shares or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Shares or otherwise sought to hedge its position in the Securities (each, a firm commitment Rule 144A offering "Prohibited Transaction"). Investor acknowledges that the representations, warranties and covenants contained in this Section 5.12 are being made for the benefit of the Investor as well as the Company. The Company acknowledges and agrees that Investor has not made any representations or warranties with respect to qualified institutional buyersthe transactions contemplated by the Transaction Documents other than those specifically set forth in this Section 5.

Prohibited Transactions. During Since the term earlier 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 in the sole and absolute discretion of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (ia) the issuance such time as each Purchaser was first contacted by the Company of any rights, warrants or options to subscribe for or purchase Common Stock, or any other securities Person acting on behalf of the Company regarding the transactions contemplated hereby or (b) thirty (30) days prior to the date hereof, neither Purchaser nor any affiliate of either Purchaser which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to such Purchaser’s investments or trading or information concerning such Purchaser’s investments, including in respect of the Shares, or (z) is subject to such Purchaser’s review or input concerning such affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly convertible into indirectly, effected or exchangeable agreed to effect any short sale, whether or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) established any “at-the-market offeringput equivalent position” (as defined in Rule 415(a)(416a-1(h) under the Securities Act or any successor rule theretoExchange Act) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this AgreementCommon Stock, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock or otherwise sought to hedge its position in the Shares (each, a “Prohibited Transaction”). Prior to the earliest to occur of (i) the termination of this Agreement, or (ii) the effective date of the registration statement required to be filed by the Company to register the Shares under the Securities Act pursuant to its obligations under the Registration Rights Agreement, Purchaser shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a firm commitment Rule 144A offering to qualified institutional buyersProhibited Transaction.

Prohibited Transactions. During the term last thirty (30) days prior to the date hereof, neither such Investor nor any Affiliate of such Investor which (a) had knowledge of the transactions contemplated hereby, (b) has or shares discretion relating to such Investor’s investments or trading or information concerning such Investor’s investments, including in respect of the Securities, or (c) is subject to such Investor’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly, effected or agreed to effect any short sale, whether or not against the box, established any “put equivalent position” (as defined in Rule 16a-1(h) under the Securities Exchange Act or 1934, as amended) with respect to the Company’s Common Stock, granted any other right (including, without limitation, any put or call option) with respect to the Company’s Common Stock or with respect to any security that includes, relates to or derived any significant part of its value from the Company’s Common Stock or otherwise sought to hedge its position in the Securities (each, a “Prohibited Transaction”). Prior to January 30, 2006, such Investor shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a Prohibited Transaction. Such Investor acknowledges that the representations, warranties and covenants contained in this Section 3.6 are being made for the benefit of the Company and the Investors, and that the Company may not waive or amend any portion of this Agreement, the Company shall not enter into any Prohibited Transaction Section 3.6 without the prior written consent of the Investor, which consent may be withheld in the sole and absolute discretion all Investors. The Company shall use its reasonable best efforts to assert claims against any Investor arising out of any breach or violation of the Investorprovisions of this Section 3.6. No Investor shall sell any Securities of the Company until January 30, 2006. For the purposes of this Agreement, the term “Prohibited TransactionAffiliate” shall refer to: (i) the issuance by the Company of means, as to any rightsperson or entity, warrants or options to subscribe for or purchase Common Stock, or any other securities person or entity which directly or indirectly convertible into or exchangeable or exercisable for Common Stockcontrols, at an effective conversionis controlled by, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one under common control with such person or more resets to any fixed price; (ii) any “at-the-market offering” (as defined in Rule 415(a)(4) under the Securities Act or any successor rule thereto) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar to the financing provided for under this Agreement, provided that any future issuance by the Company of a convertible security (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, the type of conversion price adjustments customarily found in a firm commitment Rule 144A offering to qualified institutional buyersentity.

Prohibited Transactions. During the term last thirty (30) days prior to the date hereof, neither such Investor nor any Affiliate of such Investor which (a) had knowledge of the transactions contemplated hereby, (b) has or shares discretion relating to such Investor’s investments or trading or information concerning such Investor’s investments, including in respect of the Securities, or (c) is subject to such Investor’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly, effected or agreed to effect any short sale, whether or not against the box, established any “put equivalent position” (as defined in Rule 16a-1(h) under the Securities Exchange Act or 1934, as amended) with respect to the Company’s Common Stock, granted any other right (including, without limitation, any put or call option) with respect to the Company’s Common Stock or with respect to any security that includes, relates to or derived any significant part of its value from the Company’s Common Stock or otherwise sought to hedge its position in the Securities (each, a “Prohibited Transaction”). Prior to December 31, 2007, such Investor shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a Prohibited Transaction. Such Investor acknowledges that the representations, warranties and covenants contained in this Section 3.2(h) are being made for the benefit of the Company and the Investors, and that the Company may not waive or amend any portion of this Agreement, the Company shall not enter into any Prohibited Transaction Section 3.2(h) without the prior written consent of the Investor, which consent may be withheld in the sole and absolute discretion all Investors. The Company shall use its reasonable best efforts to assert claims against any Investor arising out of any breach or violation of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (i) the issuance by the Company of any rights, warrants or options to subscribe for or purchase Common Stock, or any other securities directly or indirectly convertible into or exchangeable or exercisable for Common Stock, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) any “at-the-market offering” (as defined in Rule 415(a)(4) under the Securities Act or any successor rule thereto) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar to the financing provided for under this Agreement, provided that any future issuance by the Company of a convertible security (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision 3.2(h). The Company acknowledges and agrees that adjusts no Investor has made or makes any representations or warranties with respect to the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, transactions contemplated hereby other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, the type of conversion price adjustments customarily found those specifically set forth in a firm commitment Rule 144A offering to qualified institutional buyersthis Section 3.2.

Prohibited Transactions. During Since the term earlier 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 in the sole and absolute discretion of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (ia) the issuance such time as such Investor was first contacted by the Company of any rights, warrants or options to subscribe for or purchase Common Stock, or any other securities Person acting on behalf of the Company regarding the transactions contemplated hereby or (b) thirty (30) days prior to the date hereof, neither such Investor nor any Affiliate of such Investor which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to such Investor’s investments or trading or information concerning such Investor’s investments, including in respect of the Shares, or (z) is subject to such Investor’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly convertible into indirectly, (A) effected or exchangeable agreed to effect any transactions in the securities of the Company or exercisable for Common Stockinvolving the Company’s securities while in possession of any material nonpublic information of the Company disclosed to such Investor in connection with such Investor’s decision-making with respect to their acquisition of the Shares or (B) effected or agreed to effect any short sale (as defined in Rule 200 of Regulation SHO under the 1934 Act (“Short Sales”)), at an effective conversionwhether or not against the box, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) established any “at-the-market offeringput equivalent position” (as defined in Rule 415(a)(416a-1(h) under the Securities Act or any successor rule thereto1▇▇▇ ▇▇▇) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this AgreementCommon Stock, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock or otherwise sought to hedge its position in the Shares (each, a “Prohibited Transaction”). Prior to the earliest to occur of (i) the termination of this Agreement, (ii) the Effective Date, (iii) the Effectiveness Deadline and (iv) the date the Shares may be sold pursuant to Rule 144, each Investor shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a firm commitment Rule 144A offering Prohibited Transaction. Each Investor understands and acknowledges that the SEC currently takes the position that covering a short position established prior to qualified institutional buyerseffectiveness of a resale registration statement with shares included in such registration statement would be a violation of Section 5 of the 1933 Act, as set forth in the SEC’s Compliance and Disclosure Interpretation 239.10.

Prohibited Transactions. During the term last thirty (30) days prior to the date hereof or the date of this Agreementany conversion of a Note, neither the Company shall not enter into Purchaser party hereto or holding such Note nor any Prohibited Transaction without the prior written consent Affiliate of such Purchaser which (x) had knowledge of the Investortransactions contemplated hereby and thereby, which consent may be withheld (y) has or shares discretion relating to such Purchaser’s investments or trading or information concerning such Purchaser’s investments, including in the sole and absolute discretion respect of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (i) the issuance by the Company of any rights, warrants or options to subscribe for or purchase Common StockSecurities, or any other securities (z) is subject to such Purchaser’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly convertible into indirectly, effected or exchangeable agreed to effect any short sale, whether or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to any fixed price; (ii) established any “at-the-market offeringput equivalent position” (as defined in Rule 415(a)(416a-1(h) under the Securities Act or any successor rule theretoExchange Act) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this Agreement, provided that any future issuance by the Company of a convertible security (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions Shares or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of Shares, granted any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events right (including, without limitation, any put or call option) with respect to the type Shares or the Conversion Shares or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Shares or the Conversion Shares or otherwise sought to hedge its position in the Securities (each, a “Prohibited Transaction”). In the case of a Prohibited Transaction involving the Shares, prior to the earliest to occur of (i) the termination of this Agreement, or (ii) the Effective Date (as that term is defined in the Registration Rights Agreement) such Purchaser shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a firm commitment Rule 144A offering Prohibited Transaction. In the case of a Prohibited Transaction involving the Conversion Shares, prior to qualified institutional buyersthe conversion of such Note, the Purchaser shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a Prohibited Transaction. Such Purchaser acknowledges that the representations, warranties and covenants contained in this Section 4.7 are being made for the benefit of the Purchasers as well as the Company and that each of the other Purchasers shall have an independent right to assert any claims against such Purchaser arising out of any breach or violation of the provisions of this Section 4.7.

Prohibited Transactions. During the term last thirty (30) days prior to the date hereof, neither such Investor nor any Affiliate of this Agreement, the Company shall not enter into any Prohibited Transaction without the prior written consent such Investor which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to such Investor's investments or trading or information concerning such Investor's investments, which consent may be withheld including in the sole and absolute discretion respect of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (i) the issuance by the Company of any rights, warrants or options to subscribe for or purchase Common StockSecurities, or any other securities (z) is subject to such Investor's review or input concerning such Affiliate's investments or trading (collectively, "Trading Affiliates") has, directly or indirectly convertible into indirectly, effected or exchangeable agreed to effect any short sale, whether or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to established any fixed price; (ii) any “at-the-market offering” "put equivalent position" (as defined in Rule 415(a)(416a-1(h) under the ▇▇▇▇ ▇▇▇) with respect to the Common Stock, granted any other right (including, without limitation, any put or call option) with respect to the Common Stock or with respect to any security that includes, relates to or derived any significant part of its value from the Common Stock or otherwise sought to hedge its position in the Securities Act or any successor rule thereto(each, a "Prohibited Transaction"). Prior to the earliest to occur of (i) the termination of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering this Agreement or (Bii) an unregistered private placement of Common Stock where the price per share of Announcement Date, such Common Stock Investor shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a Prohibited Transaction. In addition, until the date that this transaction is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar to the financing provided for under this Agreement, provided that any future issuance announced by the Company by filing a Form 8-K with the SEC (the "Announcement Date"), neither the Investor nor any Affiliate shall buy or sell any Common Stock or enter into any Prohibited Transaction. Such Investor acknowledges that the representations, warranties and covenants contained in this Section 5.11 are being made for the benefit of a convertible security the Investors as well as the Company and that each of the other Investors shall have an independent right to assert any claims against such Investor arising out of any breach or violation of the provisions of this Section 5.11. Notwithstanding the foregoing, (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”i) in the event case of stock splitsan Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Investor's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor's assets, dividendsthe representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement and (ii) the term Trading Affiliate, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does 5.11, shall not contain a provision include an investment vehicle that adjusts the Conversion Price as a result of any decline in the market price may otherwise be deemed to be an Trading Affiliate of the Common Stock after the issue date Investor for which separate portfolio managers manage such investment vehicle's assets, make investment decisions on behalf of such investment vehicle and do not have direct knowledge of the Convertible Securityinvestment decisions made on behalf of the Investor. The Company understands and acknowledges that (a) one or more Investors may engage in hedging activities at various times during the period that the Notes are outstanding, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, including without limitation, during the type periods that the value of conversion price adjustments customarily found the Conversion Shares or Warrant Shares is being determined and (b) such hedging activities (if any) could reduce the value of the existing stockholders' equity interests in a firm commitment Rule 144A offering to qualified institutional buyersthe Company at and after the time that the hedging activities are being conducted.

Prohibited Transactions. During the term last thirty (30) days prior to the date hereof, neither such Investor nor any Affiliate of this Agreement, the Company shall not enter into any Prohibited Transaction without the prior written consent such Investor which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to such Investor's investments or trading or information concerning such Investor's investments, which consent may be withheld including in the sole and absolute discretion respect of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (i) the issuance by the Company of any rights, warrants or options to subscribe for or purchase Common StockSecurities, or any other securities (z) is subject to such Investor's review or input concerning such Affiliate's investments or trading (collectively, "Trading Affiliates") has, directly or indirectly convertible into indirectly, effected or exchangeable agreed to effect any short sale, whether or exercisable for Common Stocknot against the box, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation to the market price of Common Stock, including by way of one or more resets to established any fixed price; (ii) any “at-the-market offering” "put equivalent position" (as defined in Rule 415(a)(416a-1(h) under the Securities Act or any successor rule thereto▇▇▇▇ ▇▇▇) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the sale, but not afterwards; and (iii) any equity line or other form of financing that is substantially similar with respect to the financing provided for under this AgreementCommon Stock, provided that granted any future issuance by the Company of a convertible security other right (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock or otherwise sought to hedge its position in the Securities (each, a "Prohibited Transaction"). Prior to the earliest to occur of (i) the termination of this Agreement, (ii) the Effective Date or (iii) the Effectiveness Deadline, such Investor shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a firm commitment Rule 144A offering Prohibited Transaction. Such Investor acknowledges that the representations, warranties and covenants contained in this Section 5.11 are being made for the benefit of the Investors as well as the Company and that each of the other Investors shall have an independent right to qualified institutional buyersassert any claims against such Investor arising out of any breach or violation of the provisions of this Section 5.11. Such Investor shall not sell, contract to sell, grant any option to purchase, transfer the economic risk of ownership in, make any short sale of, pledge or otherwise transfer or dispose of any interest in any shares of Common Stock purchased pursuant to this Agreement (or issued upon the exercise of the Warrants) until after the date of the Company's conference call regarding the Company's financial results for the quarter ending March 31, 2005, but in any event no later that June 20, 2005.

Prohibited Transactions. During the term of this Agreement, the Company shall Such Investor does not enter into currently have any Prohibited Transaction without the prior written consent of the Investor, which consent may be withheld short position in the sole and absolute discretion Common Stock. Since the earlier to occur of the Investor. For the purposes of this Agreement, the term “Prohibited Transaction” shall refer to: (i) the issuance by the Company of any rights, warrants or options to subscribe for or purchase Common Stock, or any other securities directly or indirectly convertible into or exchangeable or exercisable for Common Stock, at an effective conversion, exchange or exercise price that varies or may vary with or is otherwise issuable in relation last thirty (30) days prior to the market price of Common Stock, including by way of one or more resets to any fixed price; date hereof and (ii) the time such Investor was first contacted with respect to the transactions contemplated hereby, neither such Investor nor any “at-the-market offering” Affiliate of such Investor which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to such Investor's investments or trading or information concerning such Investor's investments, including in respect of the Securities, or (z) is subject to such Investor's review or input concerning such Affiliate's investments or trading (collectively, "Trading Affiliates") has, directly or indirectly, effected or agreed to effect any short sale (as defined in Rule 415(a)(4200(a) of Regulation SHO), whether or not against the box, established any "put equivalent position" (as defined in Rule 16a-1(h) under the Securities Act ▇▇▇▇ ▇▇▇) with respect to the Common Stock, borrowed or pre-borrowed any successor rule thereto) of the Company’s securities by or on behalf of the Company, other than (A) a customary, firm-commitment underwritten public offering or (B) an unregistered private placement shares of Common Stock where the price per share of such Common Stock is fixed upon signing of definitive documentation of the saleStock, but not afterwards; and granted any other right (iii) any equity line or other form of financing that is substantially similar to the financing provided for under this Agreement, provided that any future issuance by the Company of a convertible security (“Convertible Security”) that contains provisions that adjust the conversion price of such Convertible Security (“Conversion Price”) in the event of stock splits, dividends, distributions or similar events or pursuant to anti-dilution provisions shall not be a Prohibited Transaction for purposes of this Section 6.08 so long as such Convertible Security does not contain a provision that adjusts the Conversion Price as a result of any decline in the market price of the Common Stock after the issue date of the Convertible Security, other than a decline resulting directly from stock splits, dividends, distributions or similar events including, without limitation, any put or call option) with respect to the type Common Stock or with respect to any security that includes, relates to or derived any significant part of conversion price adjustments customarily found its value from the Common Stock, entered into any direct or indirect stock pledge, forward sales contract, swap, or similar arrangements (including on a total return basis), sales or other transactions through non-U.S. broker dealers or foreign regulated brokers, or otherwise sought to hedge its position in the Securities (each, a "Prohibited Transaction"). Prior to the earlier to occur of (i) the termination of this Agreement or, (ii) one-hundred twenty (120) days after the public announcement of the transactions contemplated hereby, such Investor shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a firm commitment Rule 144A offering Prohibited Transaction nor any sale, assignment, pledge, hypothecation, put, call, or other transfer of any of the Common Stock or other securities acquired hereunder. Such Investor acknowledges that the representations, warranties and covenants contained in this Section 5.11 are being made for the benefit of the Investors as well as the Company and that each of the other Investors shall have an independent right to qualified institutional buyersassert any claims against such Investor arising out of any breach or violation of the provisions of this Section 5.11.