Common use of Issuance of Capital Stock Clause in Contracts

Issuance of Capital Stock. Notwithstanding any other provision of this Note or any applicable agreement or document, except for (a) any transaction pursuant to an Unsolicited Proposal that Maker accepts in accordance with the fiduciary exception provided in Section 3.2 of the Recapitalization Agreement or (b) shares of Capital Stock issuable upon exercise or conversion of warrants or convertible securities outstanding prior to February 1, 2004, Maker shall not without Holder’s prior written approval: (i) issue any shares of Capital Stock (as defined in Section 12.1 hereof) or other securities, or any instruments exercisable for or convertible into Capital Stock or other securities, or (ii) make any promises, commitments, undertakings, agreements or letters of intent for any of the issuances described in (i) hereof.