Common use of Excluded Securities Clause in Contracts

Excluded Securities. The rights of first offer established by this Section 3 shall have no application to any of the following Equity Securities: (i) up to 100,441,177 shares of Common Stock, and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued to employees, officers, directors or strategic partners of, or consultants, advisors, lenders, vendors or lessors to, the Company or any of its subsidiaries pursuant to the Company's stock incentive plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors); (ii) [Intentionally Omitted]; (iii) any shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (iv) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (v) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.

Excluded Securities. The rights of first offer refusal established by this Section 3 shall 5 will have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors advisors to, the Company or any of its subsidiaries subsidiary pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 5 were complied with, waived, or were inapplicable pursuant to any provision of this Section 5.6 with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any shares Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Common Stock Directors; (d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors; (f) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vg) any Equity Securities that are issued by the Company in connection with any underwritten public offering; (h) any Equity Securities issued pursuant to any rights in connection with strategic transactions involving the Company and other entities, including, without limitation (i) joint ventures, manufacturing, marketing or agreements outstanding as distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by the date Company’s Board of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement Directors; and (including i) Any Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant third-party service providers in exchange for or as partial consideration for services rendered to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementCompany.

Excluded Securities. The participation rights of first offer established by set forth in this Section 3 4 shall have no application not apply to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such or issuable upon conversion of any shares of the Preferred Stock; (b) shares of the capital stock of the Company issued in payment of the Series D Accruing Dividends (as defined in the Restated Certificate) or shares of the capital stock of the Company issued in payment of Accruing Dividends (as defined in the Restated Certificate) on shares of Preferred Stock outstanding as of the date hereof; (c) shares of the Common Stock, including options, warrants or other rights to purchase up to such number of shares of the Common Stock (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued issued, sold or granted to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives a majority of the Investors)members of the Board; (iid) [Intentionally Omitted]; (iii) any shares of the Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) shares of the Common Stock or the Preferred Stock issued or issuable pursuant to the exercise of options, warrants or Convertible Securities outstanding as of the date hereof; (f) shares of the Common Stock or Preferred Stock and/or options, warrants or other rights to purchase the Common Stock or the Preferred Stock issued or issuable for consideration other than cash pursuant to a merger, consolidation, acquisition, strategic alliance or similar business combination approved by a majority of the members of the Board; and (g) any equity securities issued or issuable in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided, however, that the issuance of shares therein has been approved by the Board; and (h) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (v) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.

Excluded Securities. The preemptive rights of first offer established by this Section 3 6.5 shall have no application to any of the following Equity Securities: (i) up to 100,441,177 shares of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company Issuer or any of its subsidiaries subsidiary pursuant to the Company's any stock incentive or bonus plans, share purchase or share option plans or pursuant to other similar arrangements (A) filed with the Securities and Exchange Commission and incorporated by reference as an exhibit to the Issuer’s Annual Report on Form 10-K for the fiscal year ended December 29, 2007, or (B) that are approved both by the Issuer’s Board of Directors (including the representatives “Board”) and its shareholders after the date hereof and do not in the aggregate constitute more than five percent (5%) of the Investors); (ii) [Intentionally Omitted]; (iii) Common Stock on a Fully Diluted Basis, and any shares of Common Stock issued in connection with any stock splitupon exercise of such options, stock dividend warrants or recapitalization by the Companypurchase rights; (ivii) any Equity Securities that are issued by the Company to the holders upon conversion of the Company's Common Series A Preferred Stock and warrants on a pro rata basis pursuant to a registration statement filed under or the Securities ActExchange Notes, or upon the exercise of the Warrants, in each case, in accordance with their respective terms; (viii) any Equity Securities issued pursuant to any rights rights, agreements, options or agreements outstanding as of warrants granted after the date of this Agreement, so long as the preemptive rights established by this Section 6.5 were complied with, waived, or were inapplicable pursuant to any provision of this Section 6.5(d) with respect to the initial sale or grant by the Issuer of such rights, agreements, options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (viiiv) any Equity Securities issued pursuant to in connection with any share split, share dividend or recapitalization in respect of all of the transactions described in Section 2.5.B(iii)(doutstanding Equity Securities of a class (and affecting each holder of such Equity Securities equally on a pro rata basis) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementIssuer.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, and/or options, warrants or other Common Stock purchase rights and the Common Stock Equity Securities issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued to employees, officers, directors or strategic partners of, or consultants, advisors, lenders, vendors or lessors to, the Company or any of its subsidiaries pursuant to the Company's stock incentive plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives upon conversion of the Investors)Series Preferred; (ii) [Intentionally Omitted]; (iiib) any shares of Common Stock Equity Securities issued in connection with any stock split, stock dividend dividend, stock distribution or recapitalization by the Company; (ivc) Equity Securities issued after the date of this Agreement to employees, officers or directors of, or consultants or advisors to the Company pursuant to stock purchase or stock option plans or other arrangements that either (1) exist as of the date of this Agreement and have been approved by the Board or (2) are approved after the date of this Agreement by the Board; (d) Equity Securities issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and Equity Securities issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (e) any Equity Securities that are issued for consideration other than cash pursuant to a merger, consolidation, acquisition, strategic alliance or similar business combination approved by the Company to Board, including the approval of a majority of the directors elected by the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under Series Preferred (the Securities Act“Preferred Directors”); (vf) any Equity Securities issued pursuant to any rights equipment loan or agreements outstanding as leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial institution approved by the Board, including the approval of a majority of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement Preferred Directors; (including g) any Equity Securities issued to third-party service providers in exchange for or as partial consideration for services rendered to the Company approved by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement)Board; (vih) Common Stock any Equity Securities issued in connection with strategic transactions involving the Company and warrants other entities, including, without limitation, (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that such transactions are primarily for purposes other than raising capital and Common Stock issuable upon exercise the terms of such warrantsbusiness relationship with such entity have been approved by the Board, including the approval of a majority of the Preferred Directors; (i) any Equity Securities issued in connection with a Qualified Public Offering; and (j) any Series B Stock issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) terms of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Purchase Agreement.

Excluded Securities. The rights right of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]stock issued pursuant to any rights, agreements, options or warrants outstanding as of the date of this Agreement and stock issued pursuant to any rights, agreements, options or warrants granted after the date of this Agreement, provided that the rights of first refusal established by this Section 4 applied with respect to the initial sale or grant by the Company of such rights, agreements, options or warrants; (iiic) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination whereby the stockholders of the Company will own more than fifty percent (50%) of the voting power of the combined entity; (d) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) any Equity Securities that are shares of Common Stock issued by the Company to the holders upon conversion of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under Shares or the Securities ActSeries A Preferred Stock; (vf) any Equity Securities issued pursuant to any rights or agreements outstanding as equipment leasing arrangement; and (g) shares of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Company's Common Stock and warrants (and Common or Preferred Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing, corporate partnering or distribution arrangements or (ii) technology transfer, research or development arrangements; provided that such strategic transactions and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to issuance of shares therein, has been approved by the transactions described in Section 2.5.B(iii)(d) Company's Board of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementDirectors.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), like after the date hereof) issued or to be issued after the date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors advisors to, the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including at least one director elected by the representatives holders of the InvestorsSeries A Preferred Stock); (iib) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any shares Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Common Stock Directors (including at least one director elected by the holders of Series A Preferred Stock); (d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial institution approved by the Board of Directors (including at least one director elected by the holders of Series A Preferred Stock); (f) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a bona fide public offering pursuant to an effective registration statement filed under the Securities Act; (vg) any Equity Securities issued pursuant to any rights in connection with strategic transactions involving the Company and other entities, including, without limitation (i) joint ventures, manufacturing, marketing or agreements outstanding as distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein is not primarily for equity financing purposes and has been approved by the date Company’s Board of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement Directors (including at least one director elected by the holders of Series A Preferred Stock); and (h) any Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise terms of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) 1.2 of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Purchase Agreement.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock issued upon conversion of any shares of Preferred Stock of the Company or as a dividend or other distribution on any shares of Preferred Stock of the Company; (b) shares of Common Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), like after the date hereof) issued or to be issued after the date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock purchase or equity incentive plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Board; (iic) [Intentionally Omitted]any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution; provided that the issuance has been approved by the Board, including the Required Series A Director Consent; (iiid) any shares Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; provided that the issuance has been approved by the Board, including the Required Series A Director Consent; (e) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of Common Stock the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (f) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (iv) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vg) any Equity Securities issued pursuant to in connection with any rights strategic partnering or agreements outstanding as investment arrangement involving the Company and/or the acquisition or licensing of the date of this Agreement, technology or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued intellectual property by the Company pursuant to Nortel Note Exchange AgreementCompany, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of in each such warrants) issued case as approved by the Company pursuant to Board, including the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit Required Series A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.Director Consent;

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and issued or to be issued after the like), issued date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.7 with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any shares Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination as approved by the Board of Common Stock Directors; (d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution as approved by the Board of Directors; (f) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vg) any Equity Securities issued pursuant to any rights third-party service providers in exchange for or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions partial consideration for services rendered to the Purchase Agreement Company as approved by the Board of Directors; (h) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by the Company’s Board of Directors; and (i) any Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 an aggregate of 149,059,586 shares (provided, however, that such number shall be increased to reflect any shares of Common StockStock (i) not issued pursuant to the rights, agreements, option or warrants (“Unexercised Options”) as a result of the termination of such Unexercised Options or (ii) reacquired by the Company from employees, directors or consultants at cost (or the lesser of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the Company) of Common Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, splits and combinations, splits, recapitalizations and ) issued or to be issued after the like), issued date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Board; (iib) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.7 with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any shares of Common Stock Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board; (d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board; (f) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vg) any Equity Securities issued pursuant to any rights third-party service providers in exchange for or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions partial consideration for services rendered to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement);Company; and (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (viih) any Equity Securities issued pursuant to in connection with strategic transactions involving the transactions described in Section 2.5.B(iii)(dCompany and other entities, including, without limitation (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementBoard.

Excluded Securities. The rights of first offer established by Notwithstanding anything herein to the contrary, the Exercise Price shall not be adjusted pursuant to this Section 3 shall have no application to any 7.2 by virtue of the following Equity issuance and/or sale of "Excluded Securities: ", which means the following: (ia) Shares issuable upon the exercise of the Warrants; (b) up to 100,441,177 shares of Common Stock682,185 Shares, Options or Convertible Securities to be issued and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued sold to employees, officersadvisors (including, directors without limitation, financial, technical and legal advisers), directors, or strategic partners officers of, or consultants, advisors, lenders, vendors or lessors consultants to, the Company or any of its subsidiaries pursuant to the Company's stock incentive plans a share grant, share option plan, share purchase plan, pension or pursuant to profit sharing plan or other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors); (ii) [Intentionally Omitted]; (iii) any shares of Common Stock issued in connection with any stock split, stock dividend share agreement or recapitalization by the Company; (iv) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (v) any Equity Securities issued pursuant to any rights or agreements outstanding arrangement existing as of the date hereof and which has been approved by the stockholders of this Agreementthe Company; (c) the reissuance of any expired and unexercised, cancelled or options or warrants forfeited Options under any plan referred to in subsection 7.2.5.(b) above; (d) the issuance of Shares, Options and/or Convertible Securities pursuant to Options and Convertible Securities outstanding as of the date of this Agreement (including, without limitation, Shares issuable upon conversion of the Company's Series A Preferred Stock issued as set forth in of the Schedule date hereof); (e) the issuance of Exceptions to the Purchase Agreement Shares, Options or Convertible Securities as a share dividend or upon any subdivision or combination of Shares or Convertible Securities; or (including Equity f) Shares or Convertible Securities issued and sold by and for the account of the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued an effective registration statement filed by the Company pursuant to the Common Stock Purchase Agreement dated Securities and Exchange Act of 1934, as amended. For all purposes of October 30this Section 7.2, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities all Shares which are Excluded Shares shall be deemed to have been issued pursuant for an amount of consideration per Share equal to the transactions described Exercise Price in Section 2.5.B(iii)(d) effect at the time of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreementissuance.

Excluded Securities. The rights of first offer established by this Section 3 4 shall have no application to any securities of the following Equity SecuritiesCompany issued or issuable: (ia) up to 100,441,177 shares upon conversion of Common the Preferred Stock, and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights ; (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued b) to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iic) [Intentionally Omitted]pursuant to the exercise of options, warrants, notes or other rights to acquire securities of the Company outstanding as of the date hereof and securities issued pursuant to any such options, warrants, notes or other rights to acquire securities of the Company granted after the date hereof, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial issuance or grant of such options, warrants, notes or other rights to acquire securities of the Company; (iiid) for consideration other than cash pursuant to a merger, consolidation, acquisition, purchase of all or substantially all of an entity’s stock or assets or similar business combination approved by the Board of Directors; (e) pursuant to any equipment loan or leasing arrangement, real property leasing arrangement or debt financing from a bank or similar financial institution approved by the Board of Directors; (f) to third-party service providers in exchange for or as partial consideration for services rendered to the Company approved by the Board of Directors; (g) for non-capital raising purposes in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, strategic alliances, manufacturing, marketing or distribution arrangements, or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by the Board of Common Stock issued Directors; (h) in connection with any stock split, stock dividend or recapitalization by the CompanyCompany or other similar event; (ivi) any Equity Securities that are issued pursuant to the Purchase Agreement; or (j) by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis in an underwritten public offering pursuant to a registration statement filed under the Securities Act; (v) any Equity Securities issued Act or pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities a receipt issued for a final prospectus by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described applicable securities commissions or regulatory authorities in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreementa foreign jurisdiction.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and issued or to be issued after the like), issued date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Board; (iib) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.7 with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any shares of Common Stock Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition, strategic alliance or similar business combination approved by the Board; (d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the CompanyCompany that is approved by the Board; (ive) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board; (f) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vg) any Equity Securities issued pursuant to in connection with strategic transactions involving the Company and other entities, including, without limitation (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by the Board and that such transaction is not substantially for equity financing purposes; or (h) any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreementthe terms of Section 2.3, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) 2.4 and/or Section 2.5 of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Purchase Agreement.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares Shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Company; (iib) [Intentionally Omitted]any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, including without limitation convertible securities, options and warrants; and any Equity Securities issued pursuant to any such rights or agreements granted after the date of this Agreement, provided that the rights of first refusal established by this Section 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Company's Board of Directors; (d) any Equity Securities that are issued by the Company as part of an underwritten public offering referred to in Section 4.4 hereof; (e) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ivf) any Equity Securities that are shares of Common Stock issued by the Company to the holders upon conversion of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities ActPreferred Stock; (vg) any Equity Securities issued pursuant to any rights financial institutions or agreements outstanding as of the date of this Agreementlessors in connection with commercial credit arrangements, equipment financings, or options or warrants outstanding similar transactions as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued approved by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise Board of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A theretoDirectors; or (viih) any Equity Securities issued pursuant to an entity as an integral component of a strategic partnering transaction with such entity as approved by the transactions described in Section 2.5.B(iii)(d) Board of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementDirectors. 5.

Excluded Securities. The rights of first offer established by Anything to the contrary contained in this Section 3 notwithstanding, no Holder shall have no application to any New Issue Rights of First Offer for the following Equity Securitiesissue or sale of: (i) up any Common Stock issued upon conversion of or in lieu of cash dividends on the Preferred Stock or upon conversion of or in lieu of cash dividends of any Common Stock Equivalents either (x) to 100,441,177 which the New Issue Rights of First Offer applied with respect to the initial sale or grant by the Company of such Common Stock Equivalents or to which the New Issue Rights of First Offer did not apply by reason of this Section 3.6 or (y) that are outstanding as of the date hereof, (ii) shares of Common Stock, and/or options, warrants Stock or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), Equivalents issued to employees, officers, directors or strategic partners employees of, or consultants, advisors, lenders, vendors or lessors consultants to, the Company or any of and its subsidiaries pursuant to the Company's a stock grant, option or purchase plan or other employee stock incentive plans plan, program or pursuant to other similar arrangements that are agreement approved by the Board of Directors (including the representatives of the Investors); (ii) [Intentionally Omitted];Directors, (iii) any shares of Common Capital Stock issued in connection with any stock splitfor consideration other than cash pursuant to a merger, stock dividend consolidation, acquisition or recapitalization similar business combination approved by the Company;Board of Directors, (iv) any Equity Securities Common Stock or Common Stock Equivalents issued as part of a joint venture, strategic alliance, partnering transaction, lease or credit financing arrangement, development effort or like transaction approved by the Board of Directors, (v) any shares of Common Stock or Common Stock Equivalents that are issued and sold by the Company to in an offering conducted for the holders account of the Company's Common Stock and warrants on a pro rata basis Company pursuant to a registration statement filed by the Company with the SEC under the Securities 1933 Act;, (vvi) any Equity Securities issued pursuant to any rights Common Stock or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities Common Stock Equivalents issued by the Company pursuant to Nortel Note Exchange Agreementas an investment banking fee, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued placement agent fee or finder’s fee approved by the Company pursuant to the Common Stock Purchase Agreement dated as Board of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; orDirectors, (vii) any Equity Securities up to 60,000,000 shares of Series D Preferred Stock, including the shares of Series D Preferred Stock issued pursuant to the transactions Series D Subscription Agreements, and (viii) any Common Stock or Common Stock Equivalents not described in Section 2.5.B(iii)(dthe preceding clauses (i) to (vii) of this Section 3.6 and as to which the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined Board of Directors has determined that it would not be in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. best interests of the Credit AgreementCompany for the New Issue Rights of First Offer to apply because exercise of such rights would interfere with completion of a transaction by the Company to which the New Issue Rights of First Offer would otherwise apply.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock issued upon conversion of the Preferred Stock, ; (b) shares of Common Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), like after the date hereof) issued or to be issued after the date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Board; (iic) [Intentionally Omitted]any Equity Securities issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and Equity Securities issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived or were inapplicable pursuant to any provision of this Section 4.7 with respect to the initial sale or grant by the Company of such rights or agreements; (iiid) any shares of Common Stock Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition, strategic alliance or similar business combination approved by the Board; (e) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (iv) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vf) any Equity Securities issued pursuant to any rights equipment loan or agreements outstanding as of leasing arrangement, real property leasing arrangement or debt financing from a bank or similar financial or lending institution approved by the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement Board; (including g) any Equity Securities issued by to third-party service providers in exchange for or as partial consideration for services rendered to the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement)Company; (vih) Common Stock and warrants any Equity Securities issued in connection with the Initial Offering; (and Common Stock issuable upon exercise of such warrantsi) any Equity Securities issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between in connection with strategic transactions involving the Company and other entities, including, without limitation, (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the entities listed on Exhibit A thereto; orissuance of shares therein has been approved by the Board; (viij) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(dPurchase Agreement; or (k) any Equity Securities that the holders of at least a majority of the Credit Agreement if then-outstanding Registrable Securities agree shall not be subject to the proceeds rights of first refusal set forth in this Section 4. provided, however, that the total number of shares excluded from such issuance are used to prepay the Loans rights of first refusal established by this ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (▇), (▇), (▇) and (i) above shall not exceed 3,000,000 shares in the aggregate (as defined in adjusted for any stock dividends, combinations, splits, recapitalizations and the Credit Agreement) and permanently reduce like after the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreementdate hereof).

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 10,204,835 shares of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the likelike after the date hereof), or such larger amount as approved by the Board of Directors, including at least two (2) Preferred Directors, issued or to be issued after the date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors); (ii) [Intentionally Omitted]; (iii) provided, however, that any shares of Common Stock (i) not issued pursuant to rights, agreements, option or warrants (“Unexercised Options”) as a result of the termination of such Unexercised Options or (ii) reacquired by the Company from employees, directors or consultants at no more than cost pursuant to agreements that permit the Company to repurchase such shares upon termination of services to the Company shall not be counted toward such maximum number unless and until such shares are regranted as shares of Common Stock and/or options, warrants or other Common Stock purchase rights; (b) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination, approved by the Board of Directors, including at least two (2) Preferred Directors; (d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors, including at least two (2) Preferred Directors; (f) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vg) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between connection with strategic transactions involving the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.other entities, including, without limitation, joint ventures, manufacturing, marketing, distribution, technology transfer or development arrangements;

Excluded Securities. The subscription rights of first offer established by this Section 3 4 shall have no application to any of the following Equity Securities (the “Excluded Securities:”): (ia) up to 100,441,177 shares of Common Stock, and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), like after the filing of the Company’s Second Amended and Restated Certificate of Incorporation) issued or to be issued after the date of this Agreement to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary pursuant to the Company's stock incentive purchase or stock option plans or other arrangements, where the primary purpose of such is not to raise additional equity capital; (b) stock issuable pursuant to other any rights or agreements outstanding as of the date of this Agreement, options and warrants outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement; provided, however, that the subscription rights established by this Section 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; (c) any Equity Securities issued pursuant to a merger, consolidation, acquisition or similar arrangements that are business combination approved by the Board of Directors (including the representatives of the Investors)Directors; (iid) [Intentionally Omitted]; (iii) any shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) any Equity Securities that are shares of Common Stock issued by the Company to the holders upon conversion of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities ActShares; (vf) any Equity Securities issued pursuant to any rights equipment leasing, real property leasing or agreements outstanding as of the date of this Agreementloan arrangement, or options debt financing from a bank or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued similar financial or lending institution approved by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement)Board of Directors; (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (viig) any Equity Securities issued pursuant to any licensing transaction approved by the Board of Directors; and (h) any Equity Securities issued in connection with strategic alliances, joint ventures, manufacturing, marketing or distribution arrangements or technology transfer or development arrangements; provided, however, that such strategic transactions described in Section 2.5.B(iii)(d) and the issuance of shares therein, has been approved by the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. Company’s Board of the Credit AgreementDirectors.

Excluded Securities. The participation rights of first offer established by set forth in this Section 3 4 shall have no application not apply to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such or issuable upon conversion of any shares of the Preferred Stock; (b) shares of the capital stock of the Company issued in payment of the Series A Accruing Dividends (as defined in the Restated Certificate) or shares of the capital stock of the Company issued in payment of Accruing Dividends (as defined in the Restated Certificate) on shares of Preferred Stock outstanding as of the date hereof; (c) shares of the Common Stock, including options, warrants or other rights to purchase up to such number of shares of the Common Stock (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued issued, sold or granted to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives a majority of the Investors)members of the Board; (iid) [Intentionally Omitted]; (iii) any shares of the Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) shares of the Common Stock or the Preferred Stock issued or issuable pursuant to the exercise of options, warrants or Convertible Securities outstanding as of the date hereof; (f) shares of the Common Stock or Preferred Stock and/or options, warrants or other rights to purchase the Common Stock or the Preferred Stock issued or issuable for consideration other than cash pursuant to a merger, consolidation, acquisition, strategic alliance or similar business combination approved by a majority of the members of the Board; and (g) any equity securities issued or issuable in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided, however, that the issuance of shares therein has been approved by the Board; and (h) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (v) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.

Excluded Securities. The rights of first offer established by this Section 3 shall have no application to any of the following Equity Securities: (i) up to 100,441,177 shares of Common Stock, and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued to employees, officers, directors or strategic partners of, or consultants, advisors, lenders, vendors or lessors to, the Company or any of its subsidiaries pursuant to the Company's stock incentive plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors); (ii) [Intentionally Omitted]; (iii) any shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (iv) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (v) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement)) and any agreement entered into after the date hereof between SDS Merchant Fund, L.P. and the Company providing for the conversion of the entire aggregate principal amount, all accrued and unpaid interest thereon and all other amounts payable in respect of the promissory note issued by the Company to SDS Merchant Fund, L.P. in March, 2002 in an initial principal amount of $2,000,000; (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to agreements or other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement, options and warrants outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement; provided that the rights of first refusal established by this Section 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors; (d) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) shares of Common Stock issued upon conversion of the Shares; (f) any Equity Securities issued pursuant to any equipment leasing arrangement, or debt financing from a bank or similar financial institution approved by the Board of Directors; (g) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities ActAct in connection with a Qualifying IPO; (vh) any Equity Securities issued pursuant to any rights or agreements outstanding as shares of the date Company's Common Stock or Preferred Stock issued in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that such strategic transactions and the issuance of this Agreementshares therein, or options or warrants outstanding as have been approved by the Company's Board of the date Directors; and (i) shares of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement Series D Stock (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and shares of Common Stock issuable upon exercise conversion of such warrantsSeries D Stock) issued by the Company or issuable pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.

Excluded Securities. The preemptive rights of first offer established by this Section 3 5.1(q) shall have no application not apply to any of the following Equity Securities: (i) up to 100,441,177 shares of 1. Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and issued or to be issued after the like), issued date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, the Company advisors to Parent or any subsidiary of its subsidiaries Parent, pursuant to the Company's stock incentive share purchase or share option plans or pursuant to other similar arrangements that are approved by the Board of Directors of Parent; 2. shares issued upon conversion of the Notes and shares issued pursuant to any rights, agreements, options or warrants granted after the date of this Agreement, so long as the preemptive rights established by this Section 5.1(q) were complied with, waived, or were inapplicable pursuant to any provision of this Section 5.1(q) with respect to the initial sale or grant by Parent of such rights, agreements, options or warrants; 3. any Equity Securities issued pursuant to an acquisition by Parent or any of its subsidiaries of the capital stock or assets of another company (including by way of merger or consolidation), provided, such acquisition is approved by the representatives Board of Directors of Parent; 4. Equity Securities issued pursuant to the conversion, exercise or exchange of the Investors)Notes issued to the Purchasers; (ii) [Intentionally Omitted]5. Equity Interests of a subsidiary of Parent issued to Parent, Holdings or a wholly owned subsidiary of Holdings; 6. the issuances of Equity Securities (iiinot to exceed ten percent (10%) of the issued and outstanding Common Stock) in connection with a bona fide strategic partnership or commercial arrangement with a Person that is not an Affiliate of Parent or any of its subsidiaries, which partnership or arrangement is approved by the Board of Directors of Parent and the primary purpose of which is not to provide financing to the Parent or any subsidiary of Parent; 7. any shares of Common Stock issued upon exchange of common units of Holdings in accordance with the Tax Receivable Agreement and Limited Liability Company Agreement of Holdings; and 8. any Equity Securities issued in connection with any stock share split, stock share dividend on, reclassification or recapitalization by or similar event of the Company; (iv) any outstanding Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (v) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementBorrower.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 the Subject Common Shares; (b) shares of Common Stock, Stock issued upon conversion of the Preferred Shares: (c) shares of Series D Stock issued upon the Common Share Exchange; (d) shares of Common Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), ) after the date that the first share of Series C Stock was issued (the "Series C Original Issue Date") to employees, officers, officers or directors of or strategic partners of, consultants or consultants, advisors, lenders, vendors or lessors to, advisors to the Company or any subsidiary pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of its subsidiaries Directors; (e) shares of Common Stock issued pursuant to the Company's stock incentive plans exercise of options, warrants or convertible securities outstanding as of the Series C Original Issue Date; (f) any Equity Securities issued for consideration other than cash pursuant to other a merger, consolidation, acquisition or similar arrangements that are business combination approved by the Board of Directors (including the representatives of the InvestorsSeries Preferred); (iig) [Intentionally Omitted]; (iii) any shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ivh) any Equity Securities issued pursuant to any equipment leasing arrangement, or debt financing from a bank approved by the Board of Directors; (i) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act;; and (vj) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between connection with strategic transactions involving the Company and other entities. including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that such strategic transactions and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to issuance of shares therein, has been approved by the transactions described Company's Board of Directors, including in Section 2.5.B(iii)(d) such approval the affirmative vote of at least one Director designated by the holders of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementRegistrable Securities.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares any Equity Securities issued upon conversion of Common the Investor Preferred or the Company’s Series FP Preferred Stock, and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights ; (as adjusted for b) any stock dividends, combinations, splits, recapitalizations and the like), Equity Securities issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any subsidiary for the primary purpose of its subsidiaries soliciting, retaining or rewarding their services pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iic) [Intentionally Omitted]any Equity Securities issued pursuant to the exercise or conversion of Common Stock or Preferred Stock or other stock, options, warrants, purchase rights or other securities exercisable for or convertible into Common Stock outstanding as of the date of this Agreement; (iiid) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition, strategic alliance or similar business combination, in each case approved by the Board of Directors; (e) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement or debt financing from a bank or similar financial or lending institution approved by the Board of Directors; (f) any Equity Securities issued to third-party service providers in exchange for or as partial consideration for services rendered to the Company as approved by the Board of Directors; (g) any Equity Securities issued in connection with strategic transactions involving the Company and other entities approved by the Board of Directors, including without limitation joint ventures, manufacturing, marketing, distribution, technology transfer or development arrangements; (h) any Equity Securities that the holders of a majority of the outstanding shares of Common Stock Investor Preferred (voting together as a single class and on an as-converted basis) elect in writing to exclude from the rights of first refusal granted in this Section 4; (i) any Equity Securities issued by the Company pursuant to the Purchase Agreement; (j) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company that is effected in compliance with the Company;’s certificate of incorporation; or (ivk) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (v) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock issued upon conversion of any then outstanding Preferred Stock of the Company; (b) shares of Common Stock and/or options, warrants or other Common Stock purchase rights (in each case as adjusted for stock splits, dividends, recapitalizations and the like after the date hereof) and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors advisors to, the Company or any of its subsidiaries subsidiary pursuant to stock purchase or stock option plans or other arrangements approved by the Company's stock incentive plans ’s Board of Directors; (c) any Equity Securities issued upon the exercise of options, warrants or convertible securities outstanding as of the date hereof; (d) any Equity Securities issued pursuant to any commercial transaction, licensing arrangement, equipment loan or leasing arrangement, real property leasing arrangement or debt financing transaction, in each case which has been unanimously approved by the Company’s Board of Directors and the holders of at least 60% of the outstanding shares of Series E Preferred; (e) shares of Common Stock, Preferred Stock of the Company and/or other Equity Securities issued in connection with transactions involving the Company and other entities, the principal purpose of which is other than for the raising of capital through the sale of equity securities, including (i) joint ventures, manufacturing, marketing or distribution agreements, (ii) technology transfer or development arrangements and (iii) merger, consolidation, acquisition, strategic alliance or similar arrangements that are business combination, in each case which has been unanimously approved by the Board of Directors (including and the representatives holders of at least 60% of the Investors)outstanding shares of Series E Preferred; (iif) [Intentionally Omitted]shares of Common Stock issued in an Initial Offering; (iiig) any shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ivh) any Equity Securities that are issued by shares of Preferred Stock of the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (v) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Put Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement);; and (vii) shares of Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30Stock, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Series E Preferred and/or other Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Purchase Agreement.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock issued upon conversion of any shares of Preferred Stock of the Company or as a dividend or other distribution on any shares of Preferred Stock of the Company; (b) shares of Common Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), like after the date hereof) issued or to be issued after the date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board; (c) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement or non-convertible debt financing from a bank or similar financial or lending institution approved by the Board of Directors (including the representatives of the InvestorsRequisite Directors); (iid) [Intentionally Omitted]any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition, strategic alliance or similar business combination approved by the Board (including the Requisite Directors); (iiie) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (f) any shares of Common Stock Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (ivg) any Equity Securities issued in connection with strategic transactions involving the Company and other entities approved by the Board (including the Requisite Directors), including without limitation joint ventures, manufacturing, marketing, distribution, technology transfer or development arrangements; (h) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on in connection with a pro rata basis firmly underwritten public offering pursuant to a an effective registration statement filed under the Securities Act;; and (vi) any Equity Securities issued pursuant to any rights or agreements outstanding as of that the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002Requisite Holders elect, by and between vote or written consent, voting together as a single class on an as-converted basis, to exclude from the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in rights of first refusal established by this Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement4.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive plans compensation plans, agreements, or pursuant to other similar arrangements that are approved by the Board of Directors (Board, including the representatives Company's 2000 Equity Compensation Plan, as amended from time to time. (b) stock issued pursuant to convertible securities outstanding as of the Investors)date of this Agreement or issued pursuant to the Purchase Agreement; (iic) [Intentionally Omitted]any Equity Securities issued pursuant to the acquisition of another business entity by the Company by merger, purchase of substantially all of the assets or shares or other reorganization whereby the Company will own not less than a majority of the voting power of the surviving or successor corporation; (iiid) any shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) shares of Common Stock issued upon conversion of the Shares or upon exercise of the Warrants issued pursuant to the Purchase Agreement; (f) any Equity Securities that are issued by not to exceed 1.0% of the outstanding capital stock of the Company to the holders of the Company's Common Stock and warrants on a pro rata fully diluted and as-converted basis on the date of issuance issued pursuant to any equipment leasing arrangement, or debt financing from a registration statement filed under the Securities Actbank or similar financial institution; (vg) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; PROVIDED that such strategic transactions and the entities listed on Exhibit A theretoissuance of shares therein has been approved by the Board; or (viih) any Equity Securities issued Series D Preferred Stock sold pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Purchase Agreement.

Excluded Securities. The participation rights of first offer established by this Section 3 5 shall have no application not be available to any shareholder with regard to the issuance of any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other purchase rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), like after the date hereof) issued or to be issued after the first date that any such securities were issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors or lessors to, consultants to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are or have been approved by the Board of Directors (including Board; provided, however, that neither the representatives Invus Group nor any director nominees of the Investors)Invus Group shall be awarded any such options or equity prior to the Initial Offering; (iib) [Intentionally Omitted]; (iii) any shares of Common Stock issued to all holders of affected securities of the Company in connection with any stock split, stock dividend or recapitalization by the CompanyCompany approved by the Board; (ivc) shares of Common Stock issued upon conversion of shares of the Company’s preferred stock, if any; (d) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board; (e) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act;; or (vf) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or (including options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant in connection with lending arrangements; provided, however, that pro rata participation as a lender was offered to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described Non-Invus Stockholders in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from connection with such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreementlending arrangements.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights issued or to be issued after the Original Issue Date (as adjusted for any stock dividendsdefined in the Company’s Amended and Restated Certificate of Incorporation, combinations, splits, recapitalizations and the like), issued as amended from time to time) to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (Directors, including the representatives a majority of the Investorsdirectors elected pursuant to Section D.2(h)(i) of Article IV of the Amended and Restated Certificate of Incorporation of the Company (the “Preferred Directors”); (iib) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any shares Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination approved by the Board of Common Stock Directors, including a majority of the Preferred Directors; (d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors, including a majority of the Preferred Directors; and (f) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (v) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Board; (iib) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any rights or agreements, options, warrants or convertible securities granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements, options, warrants or convertible securities; (iiic) any shares of Common Stock Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination approved by the Board; (d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board; (f) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vg) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the entities listed on Exhibit A theretoissuance of shares therein has been approved by the Board and is not substantially for equity financing purposes; or (viih) any Equity Securities shares of Series B-2 Preferred Stock or B-3 Preferred Stock issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans any Closing (as such term is defined in the Credit Purchase Agreement) and permanently reduce occurring after the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreementdate hereof.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and issued or to be issued after the like), issued date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors Directors; (including b) any Equity Securities issued or issuable pursuant to the representatives exercise of any convertible securities outstanding as of the Investorsdate of this Agreement; and any Equity Securities issued pursuant to any such convertible securities granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (c) any Equity Securities issued in connection with the First Closing, Second Closing, Third Closing, Optional Fourth Tranche Closing or Additional Closing (as each term is defined in the Purchase Agreement); (iid) [Intentionally Omitted]any Equity Securities issued pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors; (iiie) any shares of Common Stock Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (iv) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vf) any Equity Securities issued pursuant to any rights equipment loan or agreements outstanding as of the date of this Agreementleasing arrangement, real property leasing arrangement, or options debt financing from a bank or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued similar financial or lending institution approved by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement)Board of Directors; (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (viig) any Equity Securities issued pursuant to a firmly underwritten public offering pursuant to an effective registration statement under the transactions described in Section 2.5.B(iii)(d) Securities Act covering the offer and sale of Common Stock for the account of the Credit Agreement if Company; and (h) any Equity Securities issued in connection with strategic transactions involving the proceeds from such Company and other entities, including, without limitation (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance are used to prepay of shares therein has been approved by the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. Company’s Board of the Credit AgreementDirectors.

Excluded Securities. The rights of first offer refusal established by this Section 3 Article 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of 6,829,477 Common Stock, Shares (and/or options, warrants or other Common Stock Shares purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued rights) to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements (“Employment Securities”) that are approved by the Board of Directors, plus such additional number of Employment Securities, the issuance of which are approved by the Board of Directors (including and the representatives shareholders of the Investors); (ii) [Intentionally Omitted]; (iii) any shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ivb) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (v) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding Agreement (as of the date of this Agreement as set forth listed in the Schedule of Exceptions to the Purchase Agreement dated March 26, 2001 (including the “Purchase Agreement”)); (c) Equity Securities issued pursuant to any such rights or agreements granted after the date of this Agreement; provided that the rights of first refusal established by this Article 4 applied (or was waived) with respect to the initial sale or grant by the Company of such rights or agreements; (d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors; (e) Equity Securities issued in connection with any subdivision of shares, stock dividend or recapitalization by the Company; (f) Equity Securities issued upon conversion of the Series A, Series B, Series C, Series D and Series E preferred shares; (g) up to 1,000,000 Equity Securities issued pursuant to any equipment leasing or loan arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors provided that the per share value attributed to such Equity Securities is greater than or equal to $2.9469 (U.S.); (h) any Equity Securities that are issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, a registration statement filed under the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement);Securities Act or a prospectus filed in Canada as contemplated in Section 2.15; and (vii) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant up to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any 250,000 Equity Securities issued pursuant to agreements approved by the transactions described Board of Directors whereby the Company issues Equity Securities in Section 2.5.B(iii)(d) lieu of paying licensing or similar fees in cash provided that the Credit Agreement if the proceeds from per share value attributed to such issuance are used Equity Securities is greater than or equal to prepay the Loans $2.9469 (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementU.S.).

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up the issuance and sale of, or the grant of options to 100,441,177 purchase shares of Common StockEquity Securities, and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued to employees, officers, directors or strategic partners officers of, or consultants, advisors, lenders, vendors or lessors bona fide consultants to, the Company or any of and its subsidiaries pursuant to stock plans or options or agreements adopted or approved by the Board (including shares issued or sold pursuant to the exercise of any stock option or purchased pursuant to a grant under the Company's ’s stock incentive option plans or stock purchase plans or pursuant to other similar arrangements that are approved by agreements entered into for employee compensation purposes prior to the Board of Directors (including the representatives of the Investorsdate hereof); (iib) [Intentionally Omitted]any Equity Securities issued upon the conversion of the Preferred Stock; (iiic) any shares of Common Stock Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board; (d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) any Equity Securities issued to Persons or entities with which the Company has business relationships as equity enhancements in bank financing, leasing or other similar transactions approved by the Board (including at least one of the Series Preferred Directors); (f) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vg) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including, without limitation (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by the Board (including at least one of the Series Preferred Directors) and such shares equal less than 5% of the Equity Securities of the Company (calculated on a fully-diluted basis) outstanding immediately prior to such strategic transaction; (h) any Equity Securities issued pursuant to the acquisition of another Person by the Company or issued in connection with any rights merger, consolidation, combination, purchase of all or agreements outstanding as substantially all of the date of this Agreement, assets or options or warrants outstanding as other reorganization approved by the Board (including at least one of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement Series Preferred Directors); or (including i) any Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 an aggregate of 6,548,000 shares (provided, however, that such number shall be increased to reflect any shares of Common StockStock (i) not actually issued pursuant to the rights, agreements, option or warrants (“Unexercised Options”) as a result of the termination of such Unexercised Options or (ii) reacquired by the Company from employees, directors or consultants at cost (or the lesser of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the Company) of Common Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), like after the date hereof) previously issued or to be issued after the date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors advisors to, the Company or any of its subsidiaries subsidiary pursuant to (x) the Company's 2007 Stock Incentive Plan of the Company or (y) stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives at least a majority of the InvestorsPreferred Directors (as defined in the Company’s Amended and Restated Certificate of Incorporation as in effect on the date hereof)) (the “Option Pool”); (iib) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any shares Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition, strategic alliance or similar business combination approved by the Board of Common Stock Directors (including at least a majority of the Preferred Directors); (d) any Equity Securities actually issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) Equity Securities issued to third-party service providers in exchange for or as partial consideration for services rendered to the Company; (f) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors (including at least a majority of the Preferred Directors); (g) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vh) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between connection with strategic transactions involving the Company and other entities, including, without limitation (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the entities listed on Exhibit A theretoissuance of shares therein has been approved by the Company’s Board of Directors (including at least a majority of the Preferred Directors); orand (viii) any Equity Securities Securities, issued pursuant to or issuable hereafter that are (i) approved by a majority of the transactions described in Section 2.5.B(iii)(dBoard (including at least a majority of the Preferred Directors), and (ii) approved by the vote of the holders of at least fifty-five percent (55%) of the Credit Agreement Preferred Stock, voting together as a single class. Notwithstanding the foregoing, if the proceeds from Company shall issue any shares of Common Stock and/or options, warrants or other Common Stock purchase rights to employees, officers or directors of, or consultants or advisors to, the Company or any subsidiary in excess of the Option Pool after the date hereof without the approval of the holders of at least fifty-five percent (55%) of the shares of Preferred Stock then outstanding (including a majority of the shares of Series B Preferred then outstanding), then such issuance are used shares shall be subject to prepay a right of first refusal by the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) Major Investors in accordance with this Section 2.5.C. of the Credit Agreement4.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stockany Equity Securities issued upon conversion of, and/or optionsor as a dividend or distribution on, warrants the Preferred Stock or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights the Purchase Agreement (including without limitation the Warrants (as adjusted for any stock dividends, combinations, splits, recapitalizations and defined in the likePurchase Agreement), if issued pursuant to the Purchase Agreement, and any Equity Securities issued upon exercise of the Warrants); (b) any Equity Securities issued or issuable to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Board; (ii) [Intentionally Omitted]; (iii) any shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ivc) any Equity Securities that are issued by the Company pursuant to the holders exercise of Equity Securities outstanding as of the Company's Common Stock and warrants on a pro rata basis date hereof; (d) any Equity Securities issued for consideration other than cash pursuant to a registration statement filed under merger, consolidation, acquisition, strategic alliance or similar business combination approved by the Securities ActBoard; (ve) any Equity Securities issued pursuant to any rights equipment loan or agreements outstanding as of the date of this Agreementleasing arrangement, real property leasing arrangement or options debt financing from a bank or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued similar financial institution approved by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement)Board; (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (viif) any Equity Securities issued to third-party service providers in exchange for, or as partial consideration for, services rendered to the Company; (g) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including (i) strategic alliances, collaborations, joint ventures, manufacturing or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by the Board; (h) any Equity Securities issued in connection with an Initial Offering; and (i) any Equity Securities, which the Major Investors holding a majority of the then outstanding shares of Registrable Securities held by the Major Investors shall specifically designate as not being subject to the rights of first refusal set forth in this Section 4 pursuant to the transactions described in Section 2.5.B(iii)(d) a written consent of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreementholders.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up stock issued or to 100,441,177 shares of Common Stock, and/or options, warrants or other Common Stock purchase rights and be issued after the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any shares Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination that is approved by the Board of Common Stock Directors and entered into for primarily non-equity financing purposes; (d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) any Equity Securities that, with the unanimous approval of the Board of Directors, are not offered to any existing stockholder of the Company; (f) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors, entered into for primarily non-equity financing purposes; (g) any Equity Securities issued to third party service providers in exchange for or as partial consideration for services rendered to the Company as approved by the Board of Directors; (h) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act;bona fide, firmly underwritten public offering; and (vi) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise terms of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) 2.3 of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Purchase Agreement.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants employees or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued to employees, officers, directors or strategic partners of, or consultants, advisors, lenders, vendors or lessors consultants to, the Company or any of its subsidiaries pursuant to the Company's a stock incentive plans grant, stock option plan or pursuant to stock purchase plan or other similar arrangements that are stock agreement or arrangement approved by the Board of Directors (including in an aggregate amount of not more than 5,218,536 shares or such higher number of shares as may be approved by the representatives Board, appropriately adjusted for any stock split, stock dividend or other recapitalization effected after the Agreement Date; provided that any shares repurchased by the Company from employees, directors and consultants pursuant to the terms of stock repurchase agreements approved by the Investors)Board shall not, unless reissued, be counted as issued for purposes of this calculation; (iib) [Intentionally Omitted]any Equity Securities issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of Agreement Date; and any Equity Securities issued pursuant to any such rights or agreements granted after the Agreement Date, so long as the rights of first refusal established by this Section 4 were complied with or were inapplicable pursuant to any provision of this Section 4.7 with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination approved by the Board of Directors including the affirmative vote of the representatives designated by the holders of Series C Stock; (d) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) shares of Common Stock issued upon conversion of shares of the Company’s Preferred Stock; (f) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (v) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up shares of Series F Stock issued pursuant to 100,441,177 the Purchase Agreement; (b) shares of Common Stock issued upon conversion of the Preferred Stock, ; (c) shares of Common Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and issued or to be issued after the like), issued date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including at least one director elected by the representatives holders of the InvestorsPreferred Stock); (iid) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; (iiie) any shares Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition, strategic alliance or similar business combination approved by the Board (including at least one director elected by the holders of Common Stock Preferred Stock); (f) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (ivg) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board (including at least one director elected by the holders of Preferred Stock); (h) any Equity Securities issued to third-party service providers in exchange for or as partial consideration for services rendered to the Company provided such issuances are approved by the Board (including at least one director elected by the holders of Preferred Stock) and are for non-equity financing purposes; (i) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act;; or (vj) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between connection with strategic transactions involving the Company and other entities, including, without limitation (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the entities listed on Exhibit A thereto; or issuance of shares therein has been approved by the Board (vii) any Equity Securities issued pursuant to including at least one director elected by the transactions described in Section 2.5.B(iii)(d) holders of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit AgreementPreferred Stock) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreementsuch issuances are for non-equity financing purposes.

Excluded Securities. The Notwithstanding the foregoing, the rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 11,421,529 shares (or such larger number as may be approved by the Board of Directors of the Company including all the Preferred Directors) of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants warrant or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), ) issued or granted to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors); (ii) [Intentionally Omitted]; (iii) Company; provided, however, that such amount shall be increased to reflect any shares of Common Stock (i) not issued pursuant to the rights, options or warrants described above in this clause (a) (“Unexercised Options”) as a result of the termination of such Unexercised Options or (ii) reacquired by the Company from employees, directors or consultants pursuant to arrangements approved by the Company’s Board of Directors that permit the Company to repurchase such shares upon termination of such persons’ services to the Company; (b) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (c) any Equity Securities issued pursuant to a bona fide merger, consolidation, acquisition or similar business combination the terms of which are approved by the Board of Directors, with and including the approval of all the Preferred Directors, provided that such Equity Securities are not issued to strategic investors who are not Investors and not stockholders of the Company as of the date of this Agreement; (d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company (e) any Equity Securities issued pursuant to any equipment or real estate leasing arrangement, or any debt financing from a bank or similar financial institution and with a federal or state charter approved by the Board of Directors of the Company, with and including the approval of all the Preferred Directors; (ivf) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a an effective registration statement filed under the Securities ActAct for a Qualified Public Offering; (vg) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between connection with strategic transactions involving the Company and other entities for the entities listed on Exhibit A theretopurpose of (x) joint venture, manufacturing, marketing or distribution arrangements, (y) technology transfer, collaboration, licensing or development arrangements and (z) any other arrangements involving corporate partners that are primarily for purposes other than raising capital; orprovided that in each case such strategic transactions and the related issuance of Equity Securities have been approved by the Board of Directors of the Company, with and including the approval of all the Preferred Directors; and (viih) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Purchase Agreement.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement, options and warrants outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement; PROVIDED that the rights of first refusal established by this Section 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; (d) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) any Equity Securities issued pursuant to any equipment leasing arrangement, or debt financing from a bank or similar financial institution; (f) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act;; and (vg) any Equity Securities issued pursuant to any rights or agreements outstanding as shares of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Company's Common Stock and warrants (and Common or Preferred Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between in connection with strategic transactions involving the Company and other entities, such as (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer, licensing or development arrangements; PROVIDED that such strategic transactions and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant issuance of shares therein, shall have been determined by the Company's Board of Directors to the transactions described in Section 2.5.B(iii)(d) be a strategic transaction for purposes of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreementthis subsection.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 an aggregate of 250,000 shares (provided, however, that such number shall be increased to reflect any shares of Common StockStock (i) not issued pursuant to the rights, agreements, option or warrants (“Unexercised Options”) as a result of the termination of such Unexercised Options or (ii) reacquired by the Company from employees, directors or consultants at cost (or the lesser of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the Company) of Common Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), like after the date hereof) issued or to be issued after the date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors and any Contingent Option Grants (including as defined in the representatives of the Investors)Certificate) or any stock issued or issuable pursuant thereto; (iib) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.7 with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any shares Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Common Stock Directors; (d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors; (f) any Equity Securities that are issued by the Company pursuant to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act;Initial Offering; and (vg) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to issuance of shares therein has been approved by the transactions described in Section 2.5.B(iii)(d) Company’s Board of the Credit Agreement if the proceeds from Directors provided that such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreementtransaction is not substantially for equity financing purposes.

Excluded Securities. The rights of first offer refusal established by ------------------- this Section 3 shall have no application to any of the following Equity Securitiesfollowing: (i) up 3.5.1 Up to 100,441,177 13,950,000 shares of Common Stock, Stock of the Company (and/or options, warrants or other Common Stock of the Company purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors Directors, including the director elected by the holders of shares of Series C Preferred Stock; 3.5.2 stock issued pursuant to any rights, agreements, options or warrants outstanding as of the date of this Agreement and stock issued pursuant to any such rights, agreements, options or warrants granted after the date of this Agreement, provided that the rights of first refusal established by this Section 3 applied with respect to the initial sale or grant by the Company of such rights, agreements, options or warrants; 3.5.3 any Equity Securities issued pursuant to a merger, consolidation, acquisition (including the representatives of the Investors)technology acquisitions) or similar business combination; (ii) [Intentionally Omitted]3.5.4 any Equity Securities that are issued by the Company as part of an underwritten public offering, except as set forth in Section 4 below; (iii) any 3.5.5 shares of Common Stock of the Company issued in connection with any stock split, stock dividend or recapitalization by the Company approved by the Company's Board of Directors, including the director elected by the holders of shares of Series C Preferred Stock; 3.5.6 shares of Common Stock of the Company issued upon conversion of the Preferred Stock of the Company; (iv) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (v) 3.5.7 any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreementequipment leases, commercial loans, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued debt financings approved by the Company pursuant to Nortel Note Exchange AgreementCompany's Board of Directors, SDS Note Exchange Agreement, including the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued director elected by the Company pursuant to the Common Stock Purchase Agreement dated as holders of October 30, 2002, by and between the Company and the entities listed on Exhibit A theretoshares of Series C Preferred Stock; orand (vii) 3.5.8 any Equity Securities issued pursuant to in connection with strategic transactions involving the transactions described in Section 2.5.B(iii)(d) Company and other entities, including joint ventures, manufacturing, marketing or distribution arrangement or technology transfer or development arrangement, approved by the Company's Board of Directors, including the Credit Agreement if director elected by the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. holders of the Credit Agreementshares of Series C Preferred Stock.

Excluded Securities. The rights of first offer established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 an aggregate of 3,700,000 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights), as adjusted for any stock dividends, combinations, splits, recapitalizations and the like, issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; (b) stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement, options and warrants outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, provided that the rights of first offer established by this Section 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; (d) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization of the Company's Common Stock by the Company; (e) shares of Common Stock issued upon conversion of the Shares; (f) shares of Common Stock issued and/or shares of Common Stock issued or issuable pursuant to options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights issued, pursuant to any equipment leasing arrangement, or debt financing from a bank or similar financial institution approved by the Board of Directors, not to exceed a maximum of 200,000 shares (as adjusted for any stock dividend, combinations, splits, and other recapitalizations), plus such additional number of shares as may be approved by the Board of Directors, including the approval of at least one Series B/C/D Director (as defined in the Company's Articles of Incorporation). (g) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act. (h) up to an aggregate of 100,000 shares of Series D Preferred Stock (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), and the shares of Common Stock issuable upon conversion of such shares, and/or options, warrants or other rights to purchase such shares of Series D Preferred Stock, issued or to employees, officers, directors or strategic partners of, be issued after the date hereof to employees of or consultants, advisors, lenders, vendors advisors or lessors other service providers to, the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive plans purchase agreements or pursuant to other similar arrangements that are agreements approved by the Board of Directors (including Directors, provided that the representatives of the Investors); (ii) [Intentionally Omitted]; (iii) any shares of Common Stock issued in connection with any stock split, stock dividend consideration received or recapitalization by the Company; (iv) any Equity Securities that are issued to be received by the Company to upon the holders issuance of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; such shares of preferred stock shall be not less than Ten Dollars (v$10.00) any Equity Securities issued pursuant to any rights per share, or, insofar as such consideration consists of property or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreementconsideration other than cash, the Series H Share Exchange Agreement, and Board of Directors determines in good faith that the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise fair value of such warrantscondition is not less than Ten Dollars ($10.00) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreementper share.

Excluded Securities. The rights of first offer established by this Section 3 Notwithstanding the foregoing, and provided that such issuances shall have no application not result in or cause the Investor to any hold less than twenty percent (20%) of the then outstanding Common Stock, assuming full exercise and/or conversion of all the then outstanding Company securities (including options, warrants, stock units and similar instruments) exercisable and/or convertible into the Company’s Common Stock, the following Equity issuances shall constitute “Excluded Securities” and shall not trigger the preemptive rights set forth in Section 6.1(a) above: (i) up to 100,441,177 shares of Common Stock, and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued to employees, officers, directors or strategic partners of, or consultants, advisors, lenders, vendors or lessors to, the Company or any of its subsidiaries pursuant to the Company's stock incentive plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Investor Shares; (ii) [Intentionally Omitted]; (iii) any shares of Common Stock issued in connection with any stock split, stock dividend dividend, or recapitalization any subdivision of shares of Common Stock by the CompanyCompany or the conversion of Common Stock into another class of capital stock; (iii) Common Stock (or options to purchase such shares of Common Stock) issued or issuable to current, former or future employees or directors of, or consultants to, the Company and its Subsidiaries or in connection with any person’s employment, independent contractor or consulting arrangements with the Company (or to such persons’ transferees, estates or beneficiaries under their estates); (iv) Common Stock issued or issuable in any Equity Securities that are issued business combination or acquisition transaction approved by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities ActBoard; (v) Common Stock issued to financial institutions, commercial lenders, brokers or finders or any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreementsimilar party, or options their respective designees, in connection with the incurrence or warrants outstanding as guarantee of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued indebtedness by the Company pursuant to Nortel Note Exchange AgreementCompany, SDS Note Exchange Agreement, in each case approved by the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement);Board; and (vi) issuances of equity securities in connection with an underwritten public offering (including the IPO); provided, however, that Common Stock and warrants (and or options to purchase Common Stock issuable upon exercise of such warrantsStock) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities may be issued pursuant to subsections (iii), (iv) and (v) above without being subject to the transactions described foregoing 20% restriction only to the extent the Investor has the opportunity to purchase additional Common Stock at fair market value as determined by the Board, in Section 2.5.B(iii)(dgood faith in the exercise of its reasonable business judgment, at the time of the relevant transaction so that the Investor will own twenty percent (20%) of the Credit Agreement if then outstanding Common Stock assuming full exercise and/or conversion of all the proceeds from such issuance are used to prepay then outstanding Company securities (including options, warrants, stock units and similar instruments) exercisable and/or convertible into the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementCompany’s Common Stock.

Excluded Securities. The rights of first offer refusal established by this Section 3 shall 5 will have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors advisors to, the Company or any of its subsidiaries subsidiary pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Board; (iib) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 5 were complied with, waived or were inapplicable pursuant to any provision of this Section 5.6 with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any shares of Common Stock Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board; (d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement or debt financing from a bank or similar financial or lending institution approved by the Board; (f) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vg) any Equity Securities that are issued by the Company in connection with any underwritten public offering; (h) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between connection with strategic transactions involving the Company and other entities, including, without limitation (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the entities listed on Exhibit A theretoissuance of shares therein has been approved by the Board; orand (viii) any Equity Securities issued pursuant to third-party service providers in exchange for or as partial consideration for services rendered to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementCompany.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 an aggregate of 1,000,000 shares (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like after the date hereof) (provided, however, that such number shall be increased to reflect any shares of Common StockStock (i) not issued pursuant to the rights, agreements, option or warrants (“Unexercised Options”) as a result of the termination of such Unexercised Options or (ii) reacquired by the Company from employees, directors or consultants at cost (or the lesser of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the Company) of Common Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), like after the date hereof) issued or to be issued after the date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors and any Contingent Option Grants (including as defined in the representatives of the Investors)Certificate) or any stock issued or issuable pursuant thereto; (iib) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.7 with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any shares Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Common Stock Directors; (d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors; (f) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities ActQualified Public Offering; (vg) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the entities listed on Exhibit A theretoissuance of shares therein has been approved by the Company’s Board of Directors provided that such transaction is not substantially for equity financing purposes; orand (viih) any Any Equity Securities issued pursuant that are not offered to the transactions described in Section 2.5.B(iii)(d) of Company’s existing stockholders and that are not otherwise covered above and that are approved unanimously by the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementBoard.

Excluded Securities. The rights of first offer established by this Section 3 5 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, common stock (and/or options, warrants or other Common Stock common stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved in good faith by the Board of Directors including the representatives designated by the holders of the Shares; (b) stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement, options and warrants outstanding as of the date of this Agreement as set forth on EXHIBIT G of the Purchase Agreement[s]; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, provided that the rights of first offer established by this Section 5 applied with respect to the initial sale or grant by the Company of such rights or agreements; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination unanimously approved by the Board of Directors (including the representatives of the Investors)Directors; (iid) [Intentionally Omitted]; (iii) any shares of Common Stock common stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) shares of common stock issued upon conversion of the Shares; (f) shares of Series A Stock issued upon exercise of certain Warrants to purchase Series A Stock held by certain Investors; (g) shares of Series B Stock issued upon exercise of certain Warrants to purchase Series B Stock held by certain Investors; (h) shares of common stock or preferred stock and/or options, warrants or other common stock or preferred stock purchase rights issued pursuant to any equipment leasing arrangement, debt financing from a bank or similar financial institution or strategic transaction approved by the Board (so long as Board approval constitutes consent by at least a majority of the members of the Board representing holders of preferred stock); (i) shares of Series D Stock issued upon exercise of certain warrants to purchase Series D Stock held by certain Investors; (j) 5,666 shares of Series C Stock issued to ▇▇▇▇▇▇ ▇▇▇▇▇▇ in connection with recruiting services rendered to the Company or Series D Stock issued by the Company; and (k) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act;. (vl) any Equity Securities issued pursuant to any rights or agreements outstanding as shares of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable issued upon exercise of such warrants) issued by the Company pursuant certain warrants to the purchase Common Stock Purchase Agreement dated as of October 30, 2002, held by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreementcertain Investors.

Excluded Securities. The rights right of first offer established by in this Section 3 shall have no application will not be applicable to any the following (the "Excluded Securities"): (a) shares of the following Equity Securities: Company's Common Stock (i) up to 100,441,177 shares of Common Stock, and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), therefor) issued to employees, officers, or directors or strategic partners of, or consultantscontractors, advisors, lenders, vendors advisors or lessors to, consultants to the Company or any of its subsidiaries subsidiary pursuant to stock purchase or stock option plans, stock bonuses or awards, warrants, contracts or other arrangements (collectively, the Company's stock incentive plans or pursuant to other similar arrangements "Awards") that are approved by (i) one or more officers of the Company to whom authority to grant the Awards has been delegated in accordance with the Company's applicable equity incentive plan and which Award(s) in question are issued to a person who is not then a Director of the Company or officer of the Company who performs policy-making functions for the Company or (ii) the Board of Directors (including the representatives of the Investors); (ii) [Intentionally Omitted]; (iii) Company, which approval, in the case of any shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (iv) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and (and/or options, warrants or rights therefor) issued to a Principal Common Shareholder, must include the approval of at least one Board Designee (as defined below) then a member of the Board of Directors of the Company; (b) shares of Common Stock issued or issuable upon the exercise of options or warrants granted on a pro rata basis or before the date hereof; (c) securities offered by the Company to the public pursuant to a registration statement filed under the Securities Act; , including the IPO; (vd) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities securities issued pursuant to the transactions described in Section 2.5.B(iii)(dconversion or exercise of convertible or exercisable securities which themselves were Excluded Securities when originally issued; (e) securities issued pursuant to the acquisition of another corporation or entity by the Company by consolidation, merger, purchase of all or substantially all of the Credit Agreement if assets, or other reorganization in which the proceeds from Company acquires, in a single transaction or series of related transactions, all or substantially all of the assets of such issuance are used other corporation or entity or fifty percent (50%) or more of the voting power of such other corporation or entity or fifty percent (50%) or more of the equity ownership of such other entity; (f) shares of Common Stock or options, warrants or rights therefor issued to prepay equipment lessors, real estate lessors, banks and other financial institutional lenders to the Loans Company or any subsidiary in connection with commercial credit arrangements, equipment financings, real property leases or similar transactions, and to entities in connection with a contractual relationship of joint venture or strategic partnering (as defined such relationship is so determined by the Board in good faith on a case-by-case basis), in each case pursuant to stock purchase agreements, options, warrants or rights therefor that are approved by the Credit AgreementBoard; (g) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. shares of the Credit AgreementCompany's Common Stock or Preferred Stock issued in connection with any stock split or stock dividend; or (h) the Series B Stock, the Series C Stock, the Series D Stock, Series E Stock, Series F Stock, Series G Stock or the Conversion Stock.

Excluded Securities. The rights right of first offer refusal established by this Section 3 (d) shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar compensatory arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]stock issued pursuant to any rights, agreements, options or warrants outstanding as of the date of this Agreement, and stock issued pursuant to any rights, agreements, options or warrants granted after the date of this Agreement provided that the right of first refusal established by this Section (d) did not apply to the initial sale or grant by the Company of such rights, agreements, options or warrants; (iiic) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination whereby the stockholders of the Company will own more than 50% of the voting power of the combined entity; (d) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Actin connection with an underwritten public offering; (vf) shares of Common Stock issued upon conversion of any Equity Securities; (g) shares of Common Stock issued pursuant to Section 3.2 or Section 3.3 of this Agreement; (h) any Equity Securities issued pursuant to any rights or agreements outstanding as equipment leasing arrangement; and (i) shares of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Company's Common Stock and warrants (and Common or Preferred Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between in connection with strategic transactions involving the Company and any third party, including (i) joint ventures, manufacturing, marketing, corporate partnering or distribution arrangements, or (ii) technology transfer, research or development arrangements; provided that such strategic transactions and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to issuance of shares therein, has been approved by the transactions described in Section 2.5.B(iii)(d) Company's Board of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementDirectors.

Excluded Securities. The rights of first offer refusal established by this Section 3 shall 4 will have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors advisors to, the Company or any of its subsidiaries subsidiary pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Board; (iib) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any shares of Common Stock Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board; (d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board; (f) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vg) any Equity Securities that are issued by the Company in connection with any underwritten public offering; and (h) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between connection with strategic transactions involving the Company and other entities, including, without limitation (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to issuance of shares therein has been approved by the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementCompany’s Board.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: : (ia) up to 100,441,177 shares Shares of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), like after the filing of the Company's Third Amended and Restated Certificate of Incorporation) issued or to be issued after the Series C Original Issue Date (as defined in the Company's Third Amended and Restated Certificate of Incorporation) to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock 19 <PAGE> option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives affirmative vote of a majority of the Investors); representatives designated by the holders of the Shares; (iib) [Intentionally Omitted]; stock issued or issuable pursuant to any rights or agreements outstanding as of the date of this Agreement, options and warrants outstanding as of the date of this Agreement, and stock issued pursuant to any such rights or agreements granted after the date of this Agreement; provided that the rights of first refusal established by this Section 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors; (d) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; ; (ive) shares of Common Stock issued upon conversion of shares of the Company's Preferred Stock; (f) shares of Common Stock or Preferred Stock issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement or debt financing from a bank or similar financial institution approved by the Board of Directors, including the affirmative vote of a majority of the representatives designated by the holders of the Shares; (g) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; ; (vh) any Equity Securities issued pursuant in connection with strategic alliances, joint ventures, manufacturing, marketing or distribution arrangements or technology transfer' or development arrangements; provided that such strategic transaction and the issuance of shares therein, has been approved by the Company's Board of Directors, including the affirmative vote of a majority of the representatives designated by the holders of the Shares; and provided, further, that such strategic transaction and the issuance of the shares therein is not principally for equity financing purposes; and (i) up to an aggregate of fifty thousand (50,000) shares of stock of the Company issued to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions charitable organization described in Section 2.5.B(iii)(d170(c) of the Credit Agreement if Internal Revenue Code provided that such donation has been approved by the proceeds from such issuance are used to prepay Company's Board of Directors, including the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. affirmative vote of a majority of the Credit Agreementrepresentatives designated by the holders of the Shares.

Excluded Securities. The preemptive rights of first offer established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up Up to 100,441,177 5,500,000 shares (as may be adjusted for any stock dividend, combinations, splits, recapitalizations and the like) of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights rights) issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; (b) Up to 6,896,552 shares (as may be adjusted for any stock dividendsdividend, combinations, splits, recapitalizations and the like), ) of Series B Convertible Preferred Stock issued or to employees, officers, directors or strategic partners of, or consultants, advisors, lenders, vendors or lessors to, be issued after the Company or any of its subsidiaries pursuant date hereof to the Company's stock incentive plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)GP Strategies; (iic) [Intentionally Omitted]; (iii) any shares capital stock of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (iv) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (v) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or and warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and capital stock issued pursuant to or upon the Series J Share Exchange exercise of any such rights or agreements granted after the date of this Agreement); provided that in the case of rights or agreements granted after the date of this Agreement, such rights or agreements were approved by the Board of Directors, including representatives designated by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ MedTech Partners L.P.; (vid) shares of Common Stock and warrants issued in connection with any stock split, dividend, combination, distribution, or recapitalization; (and e) shares of Common Stock issuable upon exercise of such warrants) issued in connection with any merger, consolidation, acquisition, or similar business combination approved by the Company pursuant to the Board of Directors; (f) shares of Common Stock Purchase Agreement dated as issued upon conversion of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; orShares; (viig) any Equity Securities issued pursuant to any equipment leasing or loan arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors; and (h) any Equity Securities issued in connection with strategic transactions described in Section 2.5.B(iii)(dinvolving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that such strategic transactions and the issuance of shares therein, has been approved by the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. Board of the Credit AgreementDirectors.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors advisors to, the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement, options and warrants outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, provided that the rights of first refusal established by this Section 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any Equity Securities issued pursuant to a merger, consolidation, acquisition or similar business combination; (d) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) shares of Common Stock issued upon conversion of the Shares; (f) any Equity Securities issued pursuant to any equipment leasing arrangement, or pursuant to debt financing from a bank or other financial institution; (g) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities ActAct for the Company's Initial Offering; (vh) any Equity Securities issued pursuant to any rights or agreements outstanding as shares of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Company's Common Stock and warrants (and Common or Preferred Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between in connection with strategic transactions involving the Company and other entities, including (A) joint ventures, manufacturing, marketing or distribution arrangements or (B) technology transfer or development arrangements; provided that such strategic transactions and the entities listed on Exhibit A theretoissuance of shares therein, have been approved by the Company's Board of Directors; orand (viii) any Equity Securities shares of Common Stock or options, warrants or convertible securities issued pursuant to upon receipt of written consent or approval of the transactions described in Section 2.5.B(iii)(dholders of two-thirds (2/3) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementRegistrable Securities.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (iA) up to 100,441,177 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iiB) [Intentionally Omitted]stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement, options and warrants outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, provided that the rights of first refusal established by this Section 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; (iiiC) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; (D) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ivE) shares of Common Stock issued upon conversion of the Shares; (F) any Equity Securities issued pursuant to any equipment leasing arrangement, or debt financing from a bank or similar financial institution approved by the Board of Directors; (G) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act;; and (vH) any Equity Securities issued pursuant to any rights or agreements outstanding as shares of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Company's Common Stock and warrants (and Common or Preferred Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between in connection with strategic transactions involving the Company and other entities, including (A) joint ventures, manufacturing, marketing or distribution arrangements or (B) technology transfer or development arrangements; provided that such strategic transactions and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to issuance of shares therein, have been approved by the transactions described in Section 2.5.B(iii)(d) Company's Board of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementDirectors.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, and/or options, warrants or other rights to purchase shares of Common Stock purchase rights reserved from time to time for issuance under the Company’s equity incentive plans approved by the Board, and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors advisors to, the Company or any of its subsidiaries subsidiary pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives a majority of the Investors)Board; (iib) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements outstanding as of the date of this Agreement or options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights, agreements, options, warrants or convertible securities granted after the date of this Agreement as long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights, agreements, options, warrants or convertible securities; (iiic) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination or for the acquisition of one or more assets or for the provision of services to or for the benefit of the Company; (d) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) shares of Common Stock issued upon conversion of shares of the Company’s Preferred Stock; (f) Any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements. (g) any Equity Securities issued pursuant to any equipment leasing, real property leasing or loan arrangement, or debt financing from a bank or similar financial or lending institution; (h) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vi) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common E Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementPreferred Stock Transactions.

Excluded Securities. The rights of first offer to maintain interest established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by a majority of the entire Board of Directors; (b) stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement, options and warrants outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, provided that the rights to maintain interest established by this Section 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; (c) capital stock or warrants or options to purchase capital stock issued in connection with bona fide acquisitions, mergers or similar transactions, the terms of which are approved by a majority of the entire Board of Directors (including the representatives of the Investors)Corporation; (iid) [Intentionally Omitted]; (iii) any shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) any Equity Securities that are shares of Common Stock issued by the Company to the holders upon conversion of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities ActShares; (vf) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreementcapital stock, or options or warrants outstanding as to purchase capital stock, issued to financial institutions or lessors in connection with commercial credit arrangements, equipment financings or any similar transactions approved by a majority of the date entire Board of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement)Directors; (vig) shares of Common Stock issued in a public offering prior to or in connection with which all outstanding shares of Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock will be converted to Common Stock; (h) shares of Common Stock and warrants (the Warrant issued to Inktomi pursuant the Inktomi Agreement and the Common Stock issuable issued on the exercise of the Warrant; and (i) the Shur▇▇▇▇▇ ▇▇▇rants and shares of Common Stock issued upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by Shur▇▇▇▇▇ ▇▇▇rants and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) conversion of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementShur▇▇▇▇▇ ▇▇▇n Facility.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and issued or to be issued after the like), issued date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors, including the approval by a majority of the Series Preferred Directors (including as defined in the representatives of the InvestorsRestated Certificate); (iib) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any shares Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition, strategic alliance or similar business combination approved by the Board, including the approval of Common Stock a majority by the Series Preferred Directors; (d) any Equity Securities issued in connection with any stock split, splits or stock dividend or recapitalization dividends by the Company; (ive) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board, including the approval by a majority of the Series Preferred Directors; (f) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vg) any Equity Securities that are issued to third-party service providers in exchange for or as partial consideration for services rendered to the Company as approved by the Board, provided that exclusion pursuant to this clause (g) is approved by the Board, including a majority of the Series Preferred Directors; (h) any Equity Securities issued in connection with strategic transactions involving the Company and other entities approved by the Board, including without limitation sponsored research, collaboration, technology license, development, OEM, or marketing agreements, provided that exclusion pursuant to any rights or agreements outstanding as this clause (h) is approved by the Board, including a majority of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement Series Preferred Directors; and (including i) any Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) terms of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Purchase Agreement.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) shares of Common Stock issued upon conversion of the Preferred Stock; (b) up to 100,441,177 an aggregate of 3,898,414 shares (provided, however, that such number shall be increased to reflect any shares of Common Stock, and/or options, warrants or other Common Stock purchase rights and the Common Stock (i) not issued pursuant to the rights, agreements, option or warrants (“Unexercised Options”) as a result of the termination of such optionsUnexercised Options or (ii) reacquired by the Company from employees, warrants directors or other rights consultants at cost (or the lesser of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the Company) of Common Stock or Convertible Securities (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), like after the date hereof) issued after the date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Board; (iic) [Intentionally Omitted]; (iii) any shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (iv) any Equity Securities that are issued by the Company pursuant to the holders exercise of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Convertible Securities Act; (v) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vid) shares of Common Stock and warrants issued pursuant to a Qualified IPO; (and e) shares of Common Stock issuable upon exercise or Convertible Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition, strategic alliance, joint venture or similar business combination approved by the Board; (f) shares of such warrantsCommon Stock or Convertible Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement or debt financing from a bank or similar financial institution approved by the Board; and (g) any Series C Stock issued by the Company pursuant to the Common Stock Purchase Agreement dated as terms of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) 2.3 of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Purchase Agreement.

Excluded Securities. The rights of first offer refusal established by this Section 3 2 shall have no application to any of the following Equity Securities: (i) up to 100,441,177 A. shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by a majority of the Board of Directors (Directors; B. any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination, including the representatives without limitation, an acquisition whether pursuant to a preexisting option or otherwise, of the Investors)stock or assets of a special purpose corporation, research and development partnership or similar entity; (ii) [Intentionally Omitted]C. any Equity Securities that are issued by the Company as part of an underwritten public offering; (iii) any D. shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (iv) any Equity Securities that are E. shares of Common Stock issued by upon conversion of the Company to the holders Shares or upon conversion or exercise of other convertible securities, options or warrants of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act;; and (v) F. any Equity Securities issued pursuant to any rights corporate partnering transactions, off balance sheet financing transactions (such as "SWORD" or agreements outstanding as Research & Development partnership transactions), commercial lending transactions or lease financings; provided, however, that if the aggregate number of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d2.6(f) shall exceed, on a cumulative basis, ten percent (10%) of the Credit Agreement fully-diluted outstanding shares of the Company's capital stock (calculated at the time of issuance), the provisions of Sections 2.1, 2.2 and 2.3 shall apply subject to the following conditions: (1) if the proceeds from such issuance are used Company proposes to prepay issue Equity Securities in conjunction with the Loans equity securities of another entity ("Joint Equity Securities"), ▇▇▇▇ shall have the right to purchase its pro rata share of Joint Equity Securities as defined in Section 4.1 above only to the Credit Agreementextent that such participation by ▇▇▇▇ will not result in a loss of desired accounting treatment for the Company; and (2) and permanently reduce if the Commitments (Joint Equity Securities are issued as defined units, in exercising its right of first refusal, ▇▇▇▇ must purchase the Credit Agreement) in accordance with Section 2.5.C. full unit, even if the component equity securities of the Credit Agreementsuch unit may be transferred separately.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (iA) up to 100,441,177 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by a majority of the Board of Directors (including the representatives of the Investors)Directors; (iiB) [Intentionally Omitted]any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination, including without limitation, an acquisition whether pursuant to a preexisting option or otherwise, of the stock or assets of a special purpose corporation, research and development partnership or similar entity; (iiiC) any Equity Securities that are issued by the Company as part of an underwritten public offering; (D) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ivE) any Equity Securities that are shares of Common Stock issued by upon conversion of the Company to the holders Shares or upon conversion or exercise of other convertible securities, options or warrants of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act;; and (vF) any Equity Securities issued pursuant to any rights corporate partnering transactions, off balance sheet financing transactions (such as "SWORD" or agreements outstanding as Research & Development partnership transactions), commercial lending transactions or lease financings; provided, however, that if the aggregate number of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d4.6(f) shall exceed, on a cumulative basis, ten percent (10%) of the Credit Agreement fully-diluted outstanding shares of the Company's capital stock (calculated at the time of issuance), the provisions of Sections 4.1, 4.2 and 4.3 shall apply subject to the following conditions: (I) if the proceeds from such issuance are used Company proposes to prepay issue Equity Securities in conjunction with the Loans equity securities of another entity ("Joint Equity Securities"), each Major Investor shall have the right to purchase its pro rata share of Joint Equity Securities as defined in Section 4.1 above only to the Credit Agreementextent that such participation by the Major Investor will not result in a loss of desired accounting treatment for the Company; and (II) and permanently reduce if the Commitments (Joint Equity Securities are issued as defined units, in exercising its right of first refusal, each Major Investor must purchase the Credit Agreement) in accordance with Section 2.5.C. full unit, even if the component equity securities of the Credit Agreementsuch unit may be transferred separately.

Excluded Securities. The rights of first offer refusal established by this ------------------- Section 3 5 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 an aggregate amount of 1,680,000 shares of Common Stock, Stock and an additional 10-15% of the Company that will be set aside for the issuance of employee stock options at the Qualified Public Offering (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights rights) issued or to be issued after the Original Issue Date (as adjusted for any stock dividends, combinations, splits, recapitalizations defined in the Company's Amended and the like), issued Restated Certificate of Incorporation) to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives designated by the holders of the Investors)Series A Preferred. (b) stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement; options and warrants outstanding as of the date of this Agreement; and stock issued after the date of this Agreement pursuant to any such rights or agreements outstanding as of the date of this Agreement; provided that the rights of first refusal established by this Section 5 shall not be applied with respect to the initial sale or grant by the Company of such rights or agreements. (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors including the representatives designated by the holders of the Series A Preferred; (iid) [Intentionally Omitted]; (iii) any shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) any Equity Securities that are shares of Common Stock issued by the Company to the holders upon conversion of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under Series A Preferred or exercise of the Securities Act; Warrants; (vf) any Equity Securities issued pursuant to any rights equipment leasing or agreements outstanding as loan arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors including the representatives designated by the holders of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement)A Preferred; (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.

Excluded Securities. The rights of first offer refusal established by this ------------------- Section 3 5 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 an aggregate amount of 1,680,000 shares of Common Stock, Stock and an additional 10-15% of the Company that will be set aside for the issuance of employee stock options at the Qualified Public Offering (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights rights) issued or to be issued after the Original Issue Date (as adjusted for any stock dividends, combinations, splits, recapitalizations defined in the Company's Amended and the like), issued Restated Certificate of Incorporation) to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives designated by the holders of the Investors)Series A Preferred. (b) stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement; options and warrants outstanding as of the date of this Agreement; and stock issued after the date of this Agreement pursuant to any such rights or agreements outstanding as of the date of this Agreement; provided that the rights of first refusal established by this Section 5 shall not be applied with respect to the initial sale or grant by the Company of such rights or agreements. (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors including the representatives designated by the holders of the Series A Preferred; (iid) [Intentionally Omitted]; (iii) any shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) shares of Common Stock issued upon conversion of the Series A Preferred or exercise of the Warrants; (f) any Equity Securities issued pursuant to any equipment leasing or loan arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors including the representatives designated by the holders of the Series A Preferred; (g) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed file under the Securities Act; (v) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth including in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreementa Qualifying Public Offering, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit AgreementAmended and Restated Certificate of Incorporation; and (h) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. sale of the Credit Agreementbalance of the authorized Series A Preferred and Warrants pursuant to Section 1.4.

Excluded Securities. The participation rights of first offer established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Series B Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights rights) (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), ) issued or to be issued after the Original Issue Date (as defined in the Company’s Certificate of Incorporation) to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]stock issued pursuant to any rights, agreements, options or warrants outstanding as of the date of this Agreement; (iiic) stock issued pursuant to any rights, agreements, options or warrants granted after the date of this Agreement; provided that the participation rights established by this Section 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; (d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors; (e) shares of Series B Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ivf) shares of Series B Common Stock issued upon conversion of the Series A Shares, Series B Shares, Series C Shares, Series D Shares, Series E Shares, Series F Shares, Series G Shares, Series H Shares and Series I Shares; (g) any Equity Securities issued pursuant to any equipment leasing or loan arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors; (h) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vi) shares of the Company’s Series B Common Stock or Preferred Stock issued in connection with strategic transactions involving the Company and other entities, including (i) joint ventures or manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that such strategic transactions and the issuance of shares therein, has been approved by the Company’s Board of Directors; and (j) any Equity Securities issued pursuant to any rights or agreements outstanding as additional shares of the date of this Agreement, or options or warrants outstanding as of Company’s Series G Preferred Stock issued by the Company after the date of this Agreement as set forth in pursuant to Section 1.2(b) of the Schedule of Exceptions to the Series G Purchase Agreement (including Equity Securities and any shares of the Company’s Series I Preferred Stock issued by the Company after the date of this Agreement pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, License Agreement and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock I Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity SecuritiesSecurities in a transaction or transactions approved by a majority of the Board of Directors: (ia) up to 100,441,177 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors advisors to, the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)arrangements; (iib) [Intentionally Omitted]stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement, options and warrants outstanding as of the date of this Agreement, and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, provided that the rights of first refusal established by this Section 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; (d) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) the Shares and any shares of Common Stock issued upon conversion of the Shares; (f) any Equity Securities that are issued pursuant to any equipment leasing arrangement, or debt financing from a bank or similar financial institution; (g) any Equity Securities issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vh) any Equity Securities issued pursuant to any rights or agreements outstanding as shares of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Company's Common Stock and warrants (and Common or Preferred Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between in connection with strategic transactions involving the Company and the entities listed on Exhibit A theretoother entities, including (A) joint ventures, manufacturing, marketing or distribution arrangements, or (B) technology transfer or development arrangements; orand (viii) The Series E-1 Rights and any Equity Securities capital stock of the Company issued pursuant to the transactions described in Section 2.5.B(iii)(d) Series E-1 Rights or conversion of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreementcapital stock into Common Stock.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive plans compensation plans, agreements, or pursuant to other similar arrangements that are approved by the Board of Directors (Board, including the representatives Company’s 2000 Equity Compensation Plan, as amended from time to time. (b) stock issued pursuant to convertible securities outstanding as of the Investors)date of this Agreement or issued pursuant to the Purchase Agreement; (iic) [Intentionally Omitted]any Equity Securities issued pursuant to the acquisition of another business entity by the Company by merger, purchase of substantially all of the assets or shares or other reorganization whereby the Company will own not less than a majority of the voting power of the surviving or successor corporation; (iiid) any shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) shares of Common Stock issued upon conversion of the Shares or upon exercise of the Warrants issued pursuant to the Purchase Agreement; (f) any Equity Securities that are issued by not to exceed 1.0% of the outstanding capital stock of the Company to the holders of the Company's Common Stock and warrants on a pro rata fully diluted and as-converted basis on the date of issuance issued pursuant to any equipment leasing arrangement, or debt financing from a registration statement filed under the Securities Actbank or similar financial institution; (vg) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that such strategic transactions and the entities listed on Exhibit A theretoissuance of shares therein has been approved by the Board; or (viih) any Equity Securities issued Series D Preferred Stock sold pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Purchase Agreement.

Excluded Securities. The rights of first offer refusal established by this Section 3 4(n) shall have no application not apply with respect to any of the following Equity Securitiesfollowing: (iA) up to 100,441,177 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officersofficers or directors of the Company, directors or strategic partners of, or consultants, advisors, lenders, vendors or lessors to, the Company or any of its subsidiaries pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iiB) [Intentionally Omitted]shares of Common Stock issued pursuant to any rights, agreements, options or warrants outstanding as of the date hereof and disclosed in writing to Perseus; and stock issued pursuant to any such rights or agreements granted after the date hereof; provided that the rights of first refusal established by this Section 4(n) applied (or were exempted pursuant to this subsection (iv)) with respect to the initial sale or grant by the Company of such rights or agreements; (iiiC) any shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ivD) shares of Common Stock issued upon conversion of the Notes or the Company's Series B Preferred Stock or upon exercise or conversion of the Warrants; (E) shares of Common Stock (and/or options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination approved by the Board of Directors; (F) shares of Common Stock (and/or options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued pursuant to any Equity Securities equipment leasing, real property leasing or loan arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors, the principal purpose of which is not to raise equity capital; (G) shares of Common Stock (and/or options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) that are issued by the Company to in connection with joint ventures, manufacturing, marketing or distribution arrangements or technology transfer or development arrangements; PROVIDED that such strategic transactions and the holders issuance of shares in connection therewith have been approved by the Company's Board of Directors and the principal purpose thereof is not to raise equity capital; or (H) shares of Common Stock and (and/or options, warrants on a pro rata basis or other Common Stock purchase rights issued pursuant to a registration statement filed under the Securities Act; (vsuch options, warrants or other rights) any Equity Securities issued pursuant to any rights or agreements outstanding as of financing arrangement in which the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise proceeds of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance arrangement are used to prepay repay in full the Loans (as defined in principal amount, all accrued but unpaid interest outstanding and any other amounts owed on the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementNotes.

Excluded Securities. The preemptive rights of first offer established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement, options and warrants outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, provided that the preemptive rights established by this Section 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; (d) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) shares of Common Stock issued upon conversion of the Shares or the Series B Preferred Stock; (f) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vg) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreementequipment leasing arrangement, or options debt financing from a bank or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions similar financial institution pursuant to the Purchase Agreement (including Equity Securities issued agreements approved by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement);Company's Board of Directors; and (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (viih) any Equity Securities issued pursuant to in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that such strategic transactions described in Section 2.5.B(iii)(d) and the issuance of shares therein, has been approved by not less than a majority of all of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. Company's Board of the Credit AgreementDirectors.

Excluded Securities. The rights of first offer established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement, options and warrants outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, provided that the rights of first offer established by this Section 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; (d) shares of Common Stock or Class B Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) shares of Preferred Stock issued pursuant to the Purchase Agreement; (f) shares of (i) Common Stock issued upon conversion of the Class B Common Stock, Series A Preferred Stock, Series C Preferred Stock and/or Series E Preferred Stock, and (ii) Class B Common Stock, Series A Preferred Stock, Series C Preferred Stock and Series E Preferred Stock issued upon conversion of the Series B Preferred Stock, Series D Preferred Stock and/or the Series F Preferred Stock. (g) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (v) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.

Excluded Securities. The rights of first offer refusal established by this Section 3 4(i) shall have no application to any of the following Equity Securities: (iA) up to 100,441,177 a number of shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for rights) equal to 15% of the then outstanding shares of Common Stock, assuming full conversion of any outstanding preferred stock dividends, combinations, splits, recapitalizations and the like)Notes into shares of Series A Preferred Stock and the conversion of those shares of Series A Preferred Stock into shares of Common Stock under the Certificate of Determination, issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, the Company advisors to Borrower or any subsidiary of its subsidiaries Borrower, pursuant to the Company's stock incentive purchase, stock option, stock bonus, or similar plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iiB) [Intentionally Omitted]any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors; (iiiC) any shares of Common Stock securities issued in connection with any stock split, stock dividend or recapitalization by the CompanyBorrower; (ivD) securities issued upon conversion of the Notes or Preferred Stock or upon exercise of the Warrants; (E) any Equity Securities issued to landlords, equipment lessors, vendors, consultants, service providers, or banks or other similar financial institutions in exchange for a bona fide lease, loan or other debt financing or in strategic transactions (including joint ventures, manufacturing, marketing or distribution arrangements or technology transfer or development arrangements) or in exchange for services or products approved by the Board of Directors; (F) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act;; and (vG) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase that certain Advisory Agreement dated November 24, 2003, as of October 30, 2002, by and amended between the Company Borrower and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementGlenhaven Corporation.

Excluded Securities. The preemptive rights of first offer established by this Section 3 4 shall have no application to any of the following Equity Securities: (iA) up to 100,441,177 7,850,000 shares (as may be adjusted for any stock dividend, combinations, splits, recapitalizations and the like) of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and rights) issued or to be issued after the like), issued date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iiB) [Intentionally Omitted]; (iii) any shares capital stock of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (iv) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (v) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or and warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and capital stock issued pursuant to or upon the Series J Share Exchange exercise of any such rights or agreements granted after the date of this Agreement); provided that in the case of rights or agreements granted after the date of this Agreement, such rights or agreements were approved by the Board of Directors, including representatives designated by Sanders Morris Harris and Wheatley MedTech Partners L.P.; (vi▇) ▇▇▇▇▇▇ ▇▇ ▇▇▇mon S▇▇▇▇ ▇▇▇ued in connection with any stock split, dividend, combination, distribution, or recapitalization; (D) shares of Common Stock and warrants issued in connection with any merger, consolidation, acquisition, or similar business combination approved by the Board of Directors; (and E) shares of Common Stock issuable issued upon exercise conversion of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; orShares; (viiF) any Equity Securities issued pursuant to any equipment leasing or loan arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors; and (G) any Equity Securities issued in connection with strategic transactions described in Section 2.5.B(iii)(dinvolving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that such strategic transactions and the issuance of shares therein, has been approved by the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. Board of the Credit AgreementDirectors.

Excluded Securities. The rights of first offer refusal established by this Section 3 5 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares an aggregate amount of Common Stock, One Million Four Hundred Seventy-One Thousand Three Hundred Ninety-Two (1,471,392) new Ordinary Shares (and/or options, warrants or other Common Stock Ordinary Shares purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividendsrights, combinations, splits, recapitalizations and the like), hereinafter “Employee Shares”) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive plans a share option or pursuant to other similar arrangements that are purchase plan duly approved by the Board of Directors of the Company or such larger number of Employee Shares issued or to be issued pursuant to a share option or purchase plan unanimously approved by the Board of Directors of the Company. (b) stock (including the representatives Employee Shares) issued pursuant to any rights or agreements outstanding as of the Investors)date of the Closing, options and warrants outstanding as of the date of the Closing; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, provided that the rights of first refusal established by this Section 5 applied with respect to the initial sale or grant by the Company of such rights or agreements; (iic) [Intentionally Omitted]any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Company’s Board of Directors; (iiid) any shares of Common Stock Ordinary Shares issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) shares of Ordinary Shares issued upon conversion of the Shares; (f) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act;; and (vg) any Equity Securities issued pursuant up to any rights or agreements outstanding as an aggregate of ten percent (10%) of the date of this Agreement, or options or warrants issued and outstanding as shares of the date Company as approved by a majority of this Agreement the Company’s Board of Directors or such larger amount as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued is unanimously approved by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise Company’s Board of such warrants) Directors issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between in connection with strategic transactions directly involving the Company and other entities, including (A) joint ventures, manufacturing, marketing or distribution arrangements or (B) technology transfer or development arrangements; provided that such strategic transactions significantly enhance the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant Company’s technology and which is deemed materially advantageous to the transactions described in Section 2.5.B(iii)(d) Company’s strategic growth plan by the affirmative vote of a majority of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. Board of Directors of the Credit AgreementCompany.

Excluded Securities. The preemptive rights of first offer established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up Up to 100,441,177 5,500,000 shares (as may be adjusted for any stock dividend, combinations, splits, recapitalizations and the like) of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights rights) issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; (b) Up to 6,896,552 shares (as may be adjusted for any stock dividendsdividend, combinations, splits, recapitalizations and the like), ) of Series B Convertible Preferred Stock issued or to employees, officers, directors or strategic partners of, or consultants, advisors, lenders, vendors or lessors to, be issued after the Company or any of its subsidiaries pursuant date hereof to the Company's stock incentive plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)GP Strategies; (iic) [Intentionally Omitted]; (iii) any shares capital stock of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (iv) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (v) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or and warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and capital stock issued pursuant to or upon the Series J Share Exchange exercise of any such rights or agreements granted after the date of this Agreement); provided that in the case of rights or agreements granted after the date of this Agreement, such rights or agreements were approved by the Board of Directors, including representatives designated by Sanders Morris Harris and Wheatley MedTech Partners L.P.; (vid) ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇ck is▇▇▇▇ ▇▇ connection with any stock split, dividend, combination, distribution, or recapitalization; (e) shares of Common Stock and warrants issued in connection with any merger, consolidation, acquisition, or similar business combination approved by the Board of Directors; (and f) shares of Common Stock issuable issued upon exercise conversion of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; orShares; (viig) any Equity Securities issued pursuant to any equipment leasing or loan arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors; and (h) any Equity Securities issued in connection with strategic transactions described in Section 2.5.B(iii)(dinvolving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that such strategic transactions and the issuance of shares therein, has been approved by the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. Board of the Credit AgreementDirectors.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock issued upon conversion of the Shares; (b) shares of Common Stock and/or options, warrants or other Common Stock purchase rights rights, and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), ) issued after the Filing Date (as defined in the Company’s Certificate of Incorporation) to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iic) [Intentionally Omitted]shares of Common Stock issued pursuant to the exercise of options, warrants or convertible securities outstanding as of the Filing Date; (iiid) any shares of Common Stock and/or options, warrants or other Common Stock purchase rights, and the Common Stock issued pursuant to such options, warrants or other rights issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors; (e) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ivf) shares of Common Stock issued pursuant to any equipment leasing arrangement, or debt financing from a bank or similar financial institution approved by the Board of Directors; (g) shares of Common Stock issued to one or more corporate partners, universities, institutions or other licensors in connection with technology licensing agreements with such entities that are approved by the Board of Directors; (h) shares of Common Stock or Preferred Stock issued to third-party service providers or other parties in exchange for or as partial consideration for services rendered to the Company, if approved by the Board of Directors; (i) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vj) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that such strategic transactions and the issuance of shares therein, has been approved by the Board of Directors; and (k) shares of Series E Preferred Stock sold pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.

Excluded Securities. The rights of first offer refusal and over subscription established by this Section 3 4 shall have no application to any of the following Equity Securities: (iA) up to 100,441,177 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations rights) and the like), Series A Preferred Stock issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or in connection with services rendered to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iiB) [Intentionally Omitted]stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement, options and warrants outstanding as of the date of this Agreement, and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, provided that the rights of first refusal established by this Section 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; (iiiC) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; (D) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ivE) shares of Common Stock issued upon conversion of the Shares; (F) any Equity Securities issued pursuant to any equipment leasing arrangement, or debt financing from a bank or similar financial institution; (G) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act;; and (vH) any Equity Securities issued pursuant to any rights or agreements outstanding as shares of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Company's Common Stock and warrants (and Common or Preferred Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between in connection with strategic transactions involving the Company and other entities, including (A) joint ventures, manufacturing, marketing or distribution arrangements or (B) technology transfer or development arrangements; provided that such strategic transactions and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to issuance of shares therein, has been approved by the transactions described in Section 2.5.B(iii)(d) Company's Board of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementDirectors.

Excluded Securities. The Notwithstanding anything to the contrary, the rights of first offer participation established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 47,976,338 shares of Common Stock, and/or Stock (or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividendsrights, combinations, splits, recapitalizations and the like), Common Stock issued upon the exercise or conversion thereof) issued prior to or after the Effective Date to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar like arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement (including, without limitation any shares of stock or rights or agreements that remain issuable in a Subsequent Closing (as defined in. the Purchase Agreement) pursuant to the Purchase Agreement, options and warrants outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement; provided that the rights of participation established by this Section 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors; (d) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) shares of Common Stock issued upon conversion of the Shares; (f) any Equity Securities issued pursuant to any equipment or facilities leasing or loan arrangement, financing from a bank or similar financial or lending institution, provided such issuances are for other than primarily equity financing purposes and are approved by the Board of Directors; (g) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act;Qualified Public Offering; and (vh) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between connection with technology licensing arrangements involving the Company and other entities, provided such issuances are approved by the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) Board of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementDirectors.

Excluded Securities. The rights of first offer refusal established by this Section 3 5 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, common stock issued pursuant to Board approval as required by the Company's 1999 Equity Incentive Plan (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]; (iii) any shares of Common Stock and/or options, warrants or other rights issued to suppliers of the Company pursuant to arrangements approved by the Board; (c) stock issued pursuant to any rights, agreements, options or warrants outstanding as of the date of this Agreement, options and warrants outstanding as of the date of this Agreement; (d) stock issued pursuant to rights, agreements, options or warrants granted after the date of this Agreement; provided that the rights of first refusal established by this Section 5 applied with respect to the initial sale or grant by the Company of such rights, agreements, options or warrants; (e) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors; (f) shares of common stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ivg) shares of common stock issued upon conversion of the Shares; (h) any Equity Securities issued pursuant to any equipment leasing or loan arrangement, or debt financing from a bank or similar financial or lending institution, approved by the Board of Directors; (i) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vj) shares of the Company's common stock or preferred stock issued in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that such strategic transactions and the issuance of shares therein has been approved by the Company's Board of Directors, including the representative designated by the holders of the Shares; or (k) any Equity Securities issued pursuant to any rights or agreements outstanding as that certain Amendment of the date of this Noncompetition Agreement and Separation Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreementdated June 25, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 20022001, by and between the Company Douglas B. Williams and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementCompany.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to agreements or other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement, options and warrants outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement; provided that the rights of first refusal established by this Section 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors; (d) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) shares of Common Stock issued upon conversion of the Shares, the Series E-1 Stock or the Class B Common Stock; (f) any Equity Securities issued pursuant to any equipment leasing arrangement, or debt financing from a bank or similar financial institution approved by the Board of Directors; (g) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities ActAct in connection with a Qualifying IPO; (vh) any Equity Securities issued pursuant to any rights or agreements outstanding as shares of the date Company's Common Stock or Preferred Stock issued in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that such strategic transactions and the issuance of this Agreementshares therein, or options or warrants outstanding as have been approved by the Company's Board of the date Directors; and (i) shares of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement Series E Stock (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreementshares of Series E-1 Stock, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Class B Common Stock and warrants (and Common Stock issuable upon exercise conversion of such warrantsSeries E Stock and/or Class B Common Stock) issued by the Company or issuable pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and issued or to be issued after the like), issued date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors advisors to, the Company or any of its subsidiaries subsidiary that are approved by the Board and that are made pursuant to the Company's ’s 2006 Equity Incentive Plan or such other stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (Board, including the representatives affirmative approval of at least two of the Investors)Series Designees; (iib) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any shares Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition, strategic alliance or similar business combination with a bona fide commercial operating entity approved by the Board, including the affirmative approval of Common Stock at least three of the Series Designees; (d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board, including the affirmative approval of at least three of the Series Designees; (f) any Equity Securities that are issued by the Company pursuant to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under pertaining to the Securities ActInitial Offering which results in the Preferred Stock being converted into Common Stock; (vg) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between connection with strategic transactions involving the Company and other bona fide commercial operating entities, including, without limitation (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to issuance of shares therein has been approved by the transactions described in Section 2.5.B(iii)(d) Board, including the affirmative approval of at least three of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementSeries Designees.

Excluded Securities. The rights right of first offer refusal established by this Section 3 10.1 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar compensatory arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]any Equity Securities issued pursuant to any rights, agreements, options or warrants outstanding as of the date of this Agreement, and stock issued pursuant to any rights, agreements, options or warrants exercised after the date of this Agreement ; (iiic) any shares Equity Securities issued in connection with an underwritten public offering; (d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination whereby the stockholders of Common Stock the Company will own more than fifty percent (50%) of the voting power of the combined entity; (e) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (ivf) shares of Common Stock issued upon conversion of any Equity Securities that are issued by the Company to the holders Securities; *CONFIDENTIAL TREATMENT REQUESTED 15. (g) shares of the Company's Common Stock and warrants on a pro rata basis issued pursuant to a registration statement filed under the Securities Actthis Agreement; (vh) any Equity Securities issued pursuant to any rights equipment leasing or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued other credit finance arrangement entered into by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, in the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement);ordinary course of business; and (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (viii) any Equity Securities issued pursuant to in connection with strategic transactions involving the Company and any third party, including (i) joint ventures, manufacturing, marketing, corporate partnering or distribution arrangements, or (ii) technology transfer, collaboration, research or development arrangements; provided that such strategic transactions described in Section 2.5.B(iii)(d) and the issuance of Equity Securities therein, has been approved by the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. Company's Board of the Credit AgreementDirectors.

Excluded Securities. The rights of first offer refusal established by this Section 3 5 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement; options and warrants outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, provided that the rights of first refusal established by this Section 5 applied with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; (d) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) shares of Common Stock issued upon conversion of the Shares; (f) any Equity Securities issued pursuant to any equipment leasing arrangement, or bank financing; (g) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vh) any Equity Securities issued pursuant in connection with strategic transactions involving the Company and other entities, including (A) joint ventures, manufacturing, marketing or distribution arrangements or (B) technology transfer or development arrangements, that are approved by the Company's Board of Directors; (i) shares of Series D-1 Stock, Series D-2 Stock, Series E-1 Stock and Series E-2 Stock issued or to any rights or agreements outstanding as be issued to the Strategic Investors; and (j) shares of Series F Stock issued to the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as Purchasers set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.EXHIBIT A.

Excluded Securities. The rights right of first offer refusal established by this Section 3 7.10 shall have no application to any of the following Equity Securities: (iI) up to 100,441,177 shares of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and issued or to be issued after the like), issued date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iiII) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the right of first refusal established by this Section 7.10 were complied with or were inapplicable pursuant to any provision of this Section 7.10(f) with respect to the initial sale or grant by the Company of such rights or agreements; (iiiIII) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination; (IV) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ivV) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vVI) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by connection with strategic transactions involving the Company pursuant to Nortel Note Exchange Agreementand other entities, SDS Note Exchange Agreementincluding (A) joint ventures, the Series H Share Exchange Agreementmanufacturing, and the Series J Share Exchange Agreement)marketing or distribution arrangements or (B) technology transfer or development arrangements; provided that such transaction is not substantially for equity financing purposes; (viVII) any Common Stock issued for a purchase price in excess of $1.10 per share (as adjusted for stock splits, dividends, combinations and warrants the like); and (and VIII) any securities exchangeable or exercisable for, or convertible into, shares of Common Stock issuable upon exercise where the deemed issuance price of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated upon such exchange, exercise or conversion is in excess of $1.10 per share (as of October 30adjusted for stock splits, 2002dividends, by and between the Company combinations and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreementlike).

Excluded Securities. The rights right of first offer established by in this Section 3 Article V shall have no application to any of the following Equity Securitiesfollowing: (i) up to 100,441,177 975,000 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to stock purchase or stock option plans or other arrangements approved by the Company's stock incentive plans Board of Directors (including such shares or rights issued to such persons prior to or on the date of this Agreement); (ii) any Equity Securities issued pursuant to a merger, consolidation, acquisition or similar business combination or pursuant to a recapitalization or stock split; (iii) any Equity Securities issued pursuant to any venture leasing arrangement (whether issued to a lessor, guarantor or other similar arrangements that are person), if such issuance is approved by the Board of Directors (including approval by Centennial V's representative to the representatives Board of the Investors); (ii) [Intentionally Omitted]; (iii) any shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the CompanyDirectors; (iv) any Equity Securities that are issued by the Company to the holders upon conversion of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under Shares or the Securities Actshares of Series A Preferred Stock; (v) any Equity Securities issued pursuant borrowings, direct or indirect, from financial institutions or other persons by the Company, whether or not presently authorized, including any type of loan or payment evidenced by any type of debt instrument; provided such borrowings do not have equity features including warrants, options or other rights to any rights or agreements outstanding as purchase capital stock and are not convertible into capital stock of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement)Company; (vi) Common Stock and warrants (and Common Stock issuable upon exercise of Equity Securities issued to vendors or customers or to other persons in similar commercial situations with the Company if such warrants) issued issuance is approved by the Board of Directors of the Company pursuant (including approval by Centennial V's representative to the Common Stock Purchase Agreement dated as Board of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; orDirectors); (vii) any Equity Securities issued pursuant in connection with corporate partnering transactions on terms approved by the Board of Directors (including approval by Centennial V's representative to the transactions Board of Directors); and (viii) any right, option or warrant to acquire any security convertible into the securities described in Section 2.5.B(iii)(dsubsections (i) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans through (as defined in the Credit Agreementvii) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreementabove.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, and/or options, warrants or other Common Stock purchase rights and of the Common Stock Company issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, stock splits, recapitalizations and reorganization or similar transactions; (b) shares of Common Stock (or options therefor) of the likeCompany issued or issuable to employees, consultants or directors of the Company directly or pursuant to a stock option plan or restricted stock plan approved by the Board of Directors of the Company; (c) any capital stock, or options or warrants to purchase capital stock of the Company (including any underlying securities), issued to employeesfinancial institutions, officers, directors or strategic partners of, or consultants, advisorslessors, lenders, vendors vendors, customers, consultants, independent members of the Board of Directors or lessors tosimilar persons in connection with commercial credit arrangements, equipment financings, commercial property lease transactions or other transactions, in each case approved by the Board of Directors; (d) shares of Common Stock or Preferred Stock (including Common Stock issuable upon conversion thereof) of the Company issuable upon exercise or conversion of warrants, notes or other rights to acquire securities of the Company outstanding as of the date hereof; (e) shares of capital stock, or warrants or options to purchase capital stock of the Company (including any underlying securities), issued in connection with bona fide acquisitions, mergers, joint ventures or similar transactions, the Company or any terms of its subsidiaries pursuant to the Company's stock incentive plans or pursuant to other similar arrangements that which are approved by the Board of Directors (including the representatives of the Investors); (ii) [Intentionally Omitted]; (iii) any shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ivf) any Equity Securities that are issued by shares of Common Stock of the Company issued or issuable upon conversion of shares of the Preferred Stock. (g) shares of Common Stock of the Company issued or issuable in a public offering prior to or in connection with which all outstanding shares of the holders Preferred Stock will be converted to Common Stock; (h) shares of capital stock or other securities of the Company (including any underlying securities) issued or issuable to an entity as a component of any business relationship with such entity for the purpose of (A) joint venture, technology licensing or development activities, (B) distribution, supply or manufacture of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (v) any Equity Securities issued pursuant to any rights ’s products or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; services or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.

Excluded Securities. The rights of first offer established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are either (a) commercially reasonable as approved by the Board of Directors or (including b) unanimously approved by the representatives Board of the Investors)Directors; (iib) [Intentionally Omitted]any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination that has been unanimously approved by the Board of Directors; (iiic) any shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ivd) any Equity Securities issued pursuant to any equipment leasing arrangement, or debt financing from a bank or similar financial institution that has been unanimously approved by the Board of Directors; (e) any Equity Securities issued to venders or customers of the Company, or to persons in similar commercial situations with the Company, PROVIDED that such securities constitute less than one percent (1%) of the Company's outstanding securities at the time of such issuance and such issuances are unanimously approved by the Board of Directors; (f) the Shares (as defined in the Purchase Agreement) and the Rock Warrant issued pursuant to the Purchase Agreement; (g) Series B Preferred Stock issued upon exercise of the Rock Warrant and the Common Stock issued upon conversion of such Series B Preferred Stock; (h) Series A Preferred Stock issued pursuant to the Recapitalization Plan and the Common Stock issued upon conversion of such Series A Preferred Stock; and (i) Series C Preferred Stock issued pursuant to the Series C Purchase Agreement and the Common Stock issued upon conversion of such Series C Preferred Stock; and (j) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (v) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to the sale or issuance of any of the following Equity Securities: (ia) up to 100,441,177 an aggregate amount of one million fifty-two thousand four hundred seven (1,052,407) shares (provided, however, that such amount shall be increased to reflect any shares of Common StockStock (i) not issued pursuant to the rights, agreements, option or warrants outstanding as of the Original Issue Date ("Outstanding Options") as a result of the termination of such Outstanding Options or (ii) reacquired by the Company from employees, directors or consultants at cost pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the Company) and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the likelike after the filing of the Company's Amended and Restated Articles of Incorporation), in each case issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]stock issued pursuant to any rights, agreements, options or warrants outstanding as of the date of this Agreement; (iiic) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors; (d) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) shares of Common Stock issued upon conversion of the Shares; (f) any Equity Securities issued pursuant to any equipment leasing or loan arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors; (g) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vh) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that such strategic transactions and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to issuance of shares therein, has been approved by the transactions described in Section 2.5.B(iii)(d) Company's Board of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementDirectors.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), like after the filing of the Company’s Amended and Restated Certificate of Incorporation) issued or to be issued after the Original Issue Date (as defined in the Company’s Amended and Restated Certificate of Incorporation) to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase, stock bonus or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including Directors, which approval shall include the representatives approval of at least one director elected by the holders of the Investors)Preferred Stock; (iib) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.7 with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any shares Equity Securities issued pursuant to joint ventures, marketing or distribution arrangements, technology transfer or development arrangements, or other strategic transactions approved by the Board of Common Stock Directors; (d) any Equity Securities issued for consideration other than cash pursuant to a bona fide merger, consolidation, acquisition or other similar business combination; (e) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization similar transaction by the Company; (ivf) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, consulting agreement, debt financing from a bank or similar financial or lending institution or any other arrangement with a provider of goods and services approved by the Board of Directors; (g) any Equity Securities that are issued by the Company pursuant to a Qualified IPO; (h) any Equity Securities which, with the unanimous approval of the Board of Directors, are not offered to any existing security holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act;; or (vi) any Equity Securities issued pursuant to any rights or agreements outstanding as transaction approved by a majority of the date Board of this AgreementDirectors, or options or warrants outstanding as which approval shall include the approval of at least one director elected by the holders of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementPreferred Stock.

Excluded Securities. The rights of first offer to maintain interest established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by a majority of the entire Board of Directors; (b) stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement, options and warrants outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, provided that the rights to maintain interest established by this Section 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; (c) capital stock or warrants or options to purchase capital stock issued in connection with bona fide acquisitions, mergers or similar transactions, the terms of which are approved by a majority of the entire Board of Directors (including the representatives of the Investors)Corporation; (iid) [Intentionally Omitted]; (iii) any shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) any Equity Securities that are shares of Common Stock issued by the Company to the holders upon conversion of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities ActShares; (vf) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreementcapital stock, or options or warrants outstanding as to purchase capital stock, issued to financial institutions or lessors in connection with commercial credit arrangements, equipment financings or any similar transactions approved by a majority of the date entire Board of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement)Directors; (vig) shares of Common Stock issued in a public offering prior to or in connection with which all outstanding shares of Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock will be converted to Common Stock; (h) shares of Common Stock and warrants (the Inktomi Warrant issued to Inktomi pursuant the Inktomi Agreement and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between issued on the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) exercise of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.Inktomi Warrant; and

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like)rights, issued before or after the date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors advisors to, the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar incentive or compensatory arrangements that are approved by the Board of Directors Directors; (including the representatives b) stock issued pursuant to any other options, warrants, rights or agreements outstanding as of the Investorsdate of this Agreement; and stock issued pursuant to any such options, warrants, rights or agreements granted after the date of this Agreement; provided that the rights of first refusal established by this Section 4 applied with respect to the initial sale or grant by the Company of such rights or agreements (unless otherwise exempted under other subsections of this Section 4.6); (iic) [Intentionally Omitted]any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors, including the representatives designated by the holders of the Shares; (iiid) any shares Equity Securities issued without payment of Common Stock issued additional consideration by the recipients in connection with any stock split, stock dividend or recapitalization by the Company; (ive) shares of Common Stock issued upon conversion of the Shares; (f) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including (i) any equipment leasing or loan arrangement, or debt financing from a bank or similar financial or lending institution; (ii) joint ventures, manufacturing, marketing or distribution arrangements; or (iii) technology transfer or development arrangements; provided that such strategic transactions and the issuance of shares therein, has been approved by the Company’s Board of Directors, including the representatives designated by the holders of the Shares; (g) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act;; and (vh) any Equity Securities issued shares of Series C Preferred Stock sold pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.

Excluded Securities. The rights of first offer established by refusal set forth in this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 The Shares and the shares of Common StockStock issued upon conversion of, or as a dividend or distribution of, the Shares; (b) shares of Common Stock and/or options, warrants or other Common Stock purchase rights rights, and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), like after the date hereof) issued after the date of this Agreement to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors advisors to, the Company or any of its subsidiaries subsidiary pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are unanimously approved by the Board of Directors (including the representatives of the Investors)Board; (iic) [Intentionally Omitted]any Equity Securities issued or issuable pursuant to any options, warrants, convertible securities or other rights outstanding as of the date of this Agreement, and Equity Securities issued pursuant to any such options, warrants, convertible securities or other rights issued after the date of this Agreement, so long as the rights of first refusal set forth in this Section 4 were complied with or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial issuance by the Company of such options, warrants, convertible securities or other rights; (iiid) any Equity Securities issued for consideration other than cash pursuant to a merger, purchase of substantially all of the assets, consolidation, acquisition, strategic alliance, or similar business combination transaction; provided that the issuance of shares of Common Stock therein has been unanimously approved by the Board; (e) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (iv) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vf) any Equity Securities issued or issuable pursuant to any options, warrants, convertible securities or other rights issued in connection with any equipment loan or agreements outstanding as of the date of this Agreementleasing arrangement, credit agreements, real property leasing arrangement, or options debt financing from a bank or warrants outstanding as similar financial institution; provided that the issuance of shares therein has been unanimously approved by the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement Board; (including g) any Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement)in a Qualified IPO; (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (viih) any Equity Securities issued pursuant to the Purchase Agreement; (i) any Equity Securities issued or issuable pursuant to any options, warrants, convertible securities or other rights issued to third-party service providers in exchange for or as partial consideration for services rendered to the Company; provided that the issuance of shares therein has been unanimously approved by the Board; (j) any Equity Securities issued or issuable pursuant to any options, warrants, convertible securities or other rights issued in connection with strategic transactions described involving the Company and other entities, including (i) joint ventures, manufacturing, marketing, customer, vendor or distribution arrangements or (ii) collaboration, technology transfer or development arrangements, including technology licenses; provided that the issuance of shares therein has been unanimously approved by the Board; and (k) any right, option or warrant to acquire any security convertible into the securities set forth in Section 2.5.B(iii)(dsubsections (a) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans through (as defined in the Credit Agreementj) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreementabove.

Excluded Securities. The rights of first offer refusal established by this Section 3 5 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (Directors, including the representatives designated by the holders of the Investors)Shares; (iib) [Intentionally Omitted]stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement, options and warrants outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement; provided that the rights of first refusal established by this Section 5 applied with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; (d) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) any Equity Securities that are shares of Common Stock issued by the Company to the holders upon conversion of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities ActShares; (vf) any Equity Securities issued pursuant to any rights equipment leasing or agreements outstanding as loan arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors, including the representatives designated by the holders of the date of this AgreementShares, or options or warrants outstanding as including the representatives designated by the holder of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement);Shares; and (vig) shares of the Company's Common Stock and warrants (and Common or Preferred Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that such strategic transactions and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to issuance of shares therein has been approved by the transactions described in Section 2.5.B(iii)(d) Company's Board of Directors, including the representatives designated by the holders of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementShares.

Excluded Securities. The rights of first offer established by this Section 3 shall have no application to any of the following Equity Securities: (i) up to 100,441,177 shares of Common Stock, and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued to employees, officers, directors or strategic partners of, or consultants, advisors, lenders, vendors or lessors to, the Company or any of its subsidiaries pursuant to the Company's ’s stock incentive plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors); (ii) [Intentionally Omitted]; (iii) any shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (iv) any Equity Securities that are issued by the Company to the holders of the Company's ’s Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (v) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d2.5.B(iii) (d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 an aggregate of 12,559,948 shares (provided, however, that such number shall be increased to reflect any shares of Common StockStock (i) not actually issued pursuant to the rights, agreements, option or warrants (“Unexercised Options”) as a result of the termination of such Unexercised Options or (ii) reacquired by the Company from employees, directors or consultants at cost (or the lesser of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the Company) of Common Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), like after the date hereof) previously issued or to be issued after the date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors advisors to, the Company or any of its subsidiaries subsidiary pursuant to (x) the Company's 2007 Stock Incentive Plan of the Company or (y) stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives at least a majority of the InvestorsPreferred Directors (as defined in the Restated Certificate) (the “Option Pool”); (iib) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any shares Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition, strategic alliance or similar business combination approved by the Board of Common Stock Directors (including at least a majority of the Preferred Directors); (d) any Equity Securities actually issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) Equity Securities issued to third-party service providers in exchange for or as partial consideration for services rendered to the Company; (f) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors (including at least a majority of the Preferred Directors); (g) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vh) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between connection with strategic transactions involving the Company and other entities, including, without limitation (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided, however, that the entities listed on Exhibit A theretoissuance of shares therein has been approved by the Company’s Board of Directors (including at least a majority of the Preferred Directors); orand (viii) any Equity Securities Securities, issued pursuant to or issuable hereafter that are (i) approved by a majority of the transactions described in Section 2.5.B(iii)(dBoard (including at least a majority of the Preferred Directors), (ii) approved by the vote of the holders of at least fifty five percent (55%) of the Credit Agreement Preferred Stock and (iii) approved by the vote of the holders of at least sixty percent (60%) of the Series D Preferred Stock, voting together as a separate class. Notwithstanding the foregoing, if the proceeds from Company shall issue any shares of Common Stock and/or options, warrants or other Common Stock purchase rights to employees, officers or directors of, or consultants or advisors to, the Company or any subsidiary in excess of the Option Pool after the date hereof without the approval of the holders of at least fifty five percent (55%) of the shares of Preferred Stock then outstanding , then such issuance are used shares shall be subject to prepay a right of first refusal by the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) Major Investors in accordance with this Section 2.5.C. of the Credit Agreement4.

Excluded Securities. The preemptive rights of first offer established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up Up to 100,441,177 2,500,000 shares (as may be adjusted for any stock dividend, combinations, splits, recapitalizations and the like) of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and rights) issued or to be issued after the like), issued date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]; (iii) any shares capital stock of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (iv) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (v) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or and warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and capital stock issued pursuant to or upon the exercise of any such rights or agreements granted after the date of this Agreement; provided that in the case of rights or agreements granted after the date of this Agreement, such rights or agreements were approved by the Board of Directors, including representatives designated by the holders of the Series J Share Exchange Agreement)A Convertible Preferred Stock; (vic) shares of Common Stock and warrants issued in connection with any stock split, dividend, combination, distribution, or recapitalization; (and d) shares of Common Stock issuable upon exercise of such warrants) issued in connection with any merger, consolidation, acquisition, or similar business combination approved by the Company pursuant to the Board of Directors; (e) shares of Common Stock Purchase Agreement dated as issued upon conversion of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; orShares; (viif) any Equity Securities issued pursuant to any equipment leasing or loan arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors; and (g) any Equity Securities issued in connection with strategic transactions described in Section 2.5.B(iii)(dinvolving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that such strategic transactions and the issuance of shares therein, has been approved by the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. Board of the Credit AgreementDirectors.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (iA) up to 100,441,177 an aggregate amount of Five Hundred Thousand (500,000) shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (rights) as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), like issued or to be issued after the Original Issue Date (as defined in the Company's Certificate of Designation) to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including or the representatives of the InvestorsEquity Incentive Compensation Plan Committee thereof); (iiB) [Intentionally Omitted]stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement, options and warrants outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement; provided that the rights of first refusal established by this Section 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; (iiiC) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors including the representative designated by the holder of the Shares; (D) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ivE) shares of Common Stock issued upon conversion of the Shares; (F) any Equity Securities issued pursuant to any equipment leasing or loan arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors, including the Series A Board Designee; (G) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act;; and (vH) any Equity Securities issued pursuant to any rights or agreements outstanding as shares of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Company's Common Stock and warrants (and Common or Series A Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that such strategic transactions and the entities listed on Exhibit issuance of shares therein, has been approved by the Company's Board of Directors, including the Series A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementBoard Designee.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up Up to 100,441,177 9,460,000 shares (the “Option Plan Threshold”) of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights rights, or such higher number of shares as approved by the Preferred Stock pursuant to Article III.C.2.b(xiii) of the Company’s Restated Articles of Incorporation, and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), like after the filing of the Company’s Restated Articles of Incorporation) to be issued after the Original Issue Date (as defined in the Company’s Restated Articles of Incorporation) to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board Board; provided, that without increasing the Option Plan Threshold, any shares that revert back or are otherwise available for reissuance in connection with the expiration or termination of Directors (including any option shall be available for issuance by the representatives Company and not be subject to the right of the Investors)first refusal established by this Section 4; (iib) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any Equity Securities issued for consideration other than cash pursuant to a bona fide merger, consolidation, acquisition or similar business combination, in each case, as approved by the Board; (d) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) shares of Common Stock issued upon conversion of shares of the Company’s Preferred Stock; (f) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution, in each case if approved by the Board; (g) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act;Act that results in the conversion of all Preferred Stock into Common Stock; and (vh) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided, that the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to issuance of shares therein has been approved by the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementBoard.

Excluded Securities. The rights of first offer established by this Section 3 Participation Right shall have no application to any of these respective Equity Securities (the following Equity "Excluded Securities:"): (ia) up to 100,441,177 shares of Common Stock, and/or options, warrants or other Common Shares issuable under the Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (Option Plan as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), like issued or to be issued after the date of the execution of the Initial Investor Rights Agreement to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors or lessors to, the Company or any of its subsidiaries pursuant consultants to the Company's stock incentive plans Corporation or pursuant to stock option plans or other similar arrangements employee equity incentive plans that are approved by the Board of Directors (including the representatives Board, a majority of the Investors)Shareholders after the date of the execution of the Initial Investor Rights Agreement and the Lead Investor pursuant to Section 2.1; (iib) [Intentionally Omitted]Common Shares issued upon the exercise of any rights having been granted by the Corporation as of the date of the Initial Investor Rights Agreement, pursuant to the terms of agreements entered into by the Corporation before the date of the Initial Investor Rights Agreement or upon the exercise of any options and warrants of the Corporation issued and outstanding as of the date of the Initial Investor Rights Agreement; (iiic) Common Shares issued upon the exercise of any rights granted by the Corporation after the date of the Initial Investor Rights Agreement provided that the issuance of such rights was made subject to the exercise of the Participation Right, if applicable; (d) any shares of Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination or strategic alliance approved by the Board and the Lead Investor as pursuant to Section 2.1; (e) Common Stock Shares issued in connection with any stock split, stock dividend or recapitalization by the Company;Corporation; and (ivf) any Equity Securities that are issued by the Company to the holders securities of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under Corporation issued in connection with any business development or licensing arrangement of the Securities Act; (v) any Equity Securities issued Corporation with third parties pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreementbona fide third party collaboration agreement.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights issued or to be issued after the Original Issue Date (as adjusted for any stock dividends, combinations, splits, recapitalizations and defined in the like), issued Company’s Certificate of Incorporation) to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors Directors; provided, however, that such amount shall be increased to reflect any shares of Common Stock (including i) not issued pursuant to the representatives rights, agreements, options or warrants outstanding as of the Investors)Original Issue Date (“Outstanding Options”) as a result of the termination of such Outstanding Options or (ii) reacquired by the Company from employees, directors or consultants at cost pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the Company; (iib) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements outstanding or approved by the Board of Directors as of the date of this Agreement, options and warrants outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement; provided that the rights of first refusal established by this Section 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors; (d) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) shares of Common Stock issued upon conversion of shares of the Company’s Preferred Stock; (f) any Equity Securities issued pursuant to any equipment leasing, real property leasing or loan arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors; (g) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including (i) strategic alliance, joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements approved by the Board of Directors including the affirmative vote of at least two (2) representatives designated by the Preferred Stock; and (h) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (v) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.

Excluded Securities. The rights of first offer Purchase Rights established by this Section 3 Article III shall have no application to any of the following Equity Securities (collectively, the “Excluded Securities:”): (ia) up to 100,441,177 shares of Common Stock, and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued to employees, officers, directors or strategic partners of, or consultants, advisors, lenders, vendors or lessors to, the Company or any of its subsidiaries pursuant to the Company's stock incentive plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors); (ii) [Intentionally Omitted]; (iii) any shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ivb) up to 152,312,347 shares of Common Stock (and/or options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued to employees, officers or directors of, or consultants or advisors to the Company or any Equity Securities subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are issued approved by the Company to the holders Board of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities ActDirectors; (vc) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or ; options or and warrants outstanding as of the date of this Agreement as set forth in Agreement; and stock issued pursuant to any such rights or agreements sold or granted after the Schedule date of Exceptions this Agreement, provided, however, that the Purchase Rights established by this Article III shall apply with respect to the Purchase Agreement (including Equity Securities issued initial sale or grant by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement)of such rights or agreements; (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (viid) any Equity Securities issued in connection with business acquisitions, mergers or strategic partnerships of, into or with a Person that is not an Affiliate approved by the Board of Directors and the Required Holders; (e) any Common Stock issued upon conversion of the Series A Preferred Stock or Series B Preferred Stock; (f) any Common Stock issued pursuant to an initial public offering (“IPO Common Stock”); provided, however, that IPO Common Stock shall not be deemed to be Excluded Securities with respect to the transactions described availability of the Investors’ Purchase Rights in Section 2.5.B(iii)(dthis Article III unless the Investors and their Affiliates are offered the right to purchase their pro rata share of up to five percent (5%) of the Credit Agreement shares of Common Stock offered in such offering at the offering price per share net of underwriters’ commissions or discounts; or (g) any other Equity Securities designated as Excluded Securities (i) by the Required Holders; provided, that if the proceeds from any Required Holder participates in an issuance of Equity Securities designated as Excluded Securities pursuant to this clause (i), then each non-waiving Investor shall be entitled to purchase up to its Pro Rata Share of Equity Securities in such issuance are used at the same time and on the same terms and conditions; provided, further, that each non-waiving Investor receiving less than 5 days notice of any such issuance shall be entitled to prepay make such purchase within five (5) days following such issuance and (ii) the Loans Warrant Investor, as long as such Warrant is held by CIGPF I Corp. or its Permitted Transferee, and is exercisable for at least seventy five percent (75%) of the Common Stock originally issuable upon exercise of the Warrant, provided, however, that consent of the Warrant Investor shall not be required for the designation of Excluded Securities unless such designation affects the Warrant Investor or the Warrant Investor’s Shares in a manner different than the Investors that were originally issued Series A Preferred Stock or the Series A Preferred Stock and in a manner adverse to the interests of the Warrant Investor as defined an equity investor in the Credit Agreement) Company, it being understood that no such consent shall be required for a designation of Excluded Securities that adversely affects the Warrant Investor and permanently reduce the Commitments (as defined Investors that were originally issued Series A Preferred Stock in a similar manner given their relative and different equity interests in the Credit AgreementCompany; and (iii) in accordance with the PCP Investor, if required under Section 2.5.C. of the Credit Agreement8.13.

Excluded Securities. The rights of first offer participation established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up any Equity Securities issued or to 100,441,177 shares of Common Stock, and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]any Equity Securities issued pursuant to any rights, agreements, options and warrants outstanding or issued as of the date of this Agreement; and any Equity Securities issued pursuant to any rights, agreements, options or warrants granted after the date of this Agreement; provided that either the rights of participation established by this Section 4 applied with respect to the initial sale or grant by the Company of such rights, agreements, options or warrants or such rights, agreements, options or warrants constituted Excluded Securities pursuant to this Section 4.6 at the time of issuance; (iiic) any shares of Common Stock Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; (d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) shares of Common Stock issued upon conversion of the Shares; (f) any Equity Securities issued pursuant to any equipment leasing arrangement, or commercial credit arrangement from a bank or similar financial institution and such issuances are primarily for other than non-equity financing purposes; (g) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act;; and (vh) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between connection with strategic transactions that include a commercial relationship involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that such strategic transactions and the entities listed on Exhibit A thereto; or (vii) any issuance of Equity Securities issued pursuant to thereto has been approved by the transactions described in Section 2.5.B(iii)(d) Company's Board of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementDirectors.

Excluded Securities. The rights of first offer established by this Section 3 6(c) shall have no application to any of the following Equity Securities (the “Excluded Securities:”): (i) up to 100,441,177 A. shares of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and Recapitalization with respect to such shares after the like), date hereof) issued or to be issued after the date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock purchase or equity incentive plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives or a committee thereof; B. stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the Investors)date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first offer established by this Section 6(c) were complied with, waived, or were inapplicable pursuant to any provision of this subsection (c)(vii) with respect to the initial sale or grant by the Company of such rights or agreements; (ii) [Intentionally Omitted]C. any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors or a committee thereof; (iii) D. any shares of Common Stock Equity Securities issued in connection with any stock split, stock dividend or recapitalization Recapitalization by the CompanyCompany approved by the Board of Directors or a committee thereof; (iv) E. any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors or a committee thereof; F. any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act;Act approved by the Board of Directors or a committee thereof; and (v) G. any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between connection with strategic transactions involving the Company and other entities, including, without limitation (A) joint ventures, manufacturing, marketing or distribution arrangements or (B) technology transfer or development arrangements approved by the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) Board of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementDirectors or a committee thereof.