Common use of Excluded Securities Clause in Contracts

Excluded Securities. The rights of first offer established by this Section 5 shall have no application to any of the following Equity Securities: (a) shares of Common Stock (and/or options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued 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, including the representatives designated by the holders of the Shares but excluding the Founders; (b) stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement, options, warrants (including the Nova Scotia, Harpeth and UA Warrants) and convertible promissory notes 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 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; (d) after the date hereof, any Equity Securities which in the aggregate exceed ten percent (10%) of the Company's outstanding capital stock on a fully diluted basis issued to a potential or existing customer or supplier or other strategic relationship or issued in connection with a credit facility or equipment lease transaction; (e) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (f) shares of Common Stock issued upon conversion of the Shares; (g) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act.

Excluded Securities. The preemptive rights of first offer established by this Section 5 2 shall have no application to any of the following Equity Securities: : (a) shares of Common Stock (Shares and/or options, warrants or other Common Stock Share purchase rights and the Common Shares 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 share purchase or stock share option plans or other arrangements that are approved by the Company’s Board of Directors, including Directors (the representatives designated by the holders of the Shares but excluding the Founders; “Board”); (b) stock shares issued upon conversion of the Series A Preference Shares and shares issued pursuant to any rights rights, agreements, options or agreements outstanding as of the date of this Agreement, options, warrants (including the Nova Scotia, Harpeth and UA Warrants) and convertible promissory notes 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, so long as the preemptive rights of first offer established by this Section 5 applied 2 were complied with, waived, or were inapplicable pursuant to any provision of this Section 2.4 with respect to the initial sale or grant by the Company of such rights rights, agreements, options or agreements; warrants; (c) any Equity Securities issued for consideration other than cash pursuant to a mergeran acquisition by the Company of the capital stock or assets of another company (including by way of merger or consolidation), consolidation, provided such acquisition or similar business combination; is approved by the Board; (d) after the date hereof, any Equity Securities which in the aggregate exceed ten percent (10%) of the Company's outstanding capital stock on a fully diluted basis issued to a potential or existing customer or supplier or other strategic relationship or issued in connection with a credit facility or equipment lease transaction; (e) shares of Common Stock issued in connection with any stock share split, stock share dividend on or recapitalization of the outstanding Equity Securities of the Company; (e) any Equity Securities representing in the aggregate not more than 1.0% of the outstanding Common Shares issued pursuant to arrangements with the Company’s vendors or suppliers, 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 provided that such arrangement or financing is approved by the Company; Board; (f) shares of Common Stock issued upon conversion of the Shares; (g) any Equity Securities that are issued by the Company pursuant to a registration statement filed under Qualified IPO or in a transaction that closes on or before June 30, 2008 and values the outstanding equity of the Company immediately prior to such transaction at not less than €346,000,000; (g) any Equity Securities Act.issued by the Company pursuant to the terms of Section 3 of the Purchase Agreement;

Excluded Securities. The preemptive rights of first offer established by this Section 5 2 shall have no application to any of the following Equity Securities: (a) shares of Common Stock (Shares and/or options, warrants or other Common Stock Share purchase rights and the Common Shares 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 share purchase or stock share option plans or other arrangements that are approved by the Company’s Board of Directors, including Directors (the representatives designated by the holders of the Shares but excluding the Founders“Board”); (b) stock shares issued upon conversion of the Series A Preference Shares and shares issued pursuant to any rights rights, agreements, options or agreements outstanding as of the date of this Agreement, options, warrants (including the Nova Scotia, Harpeth and UA Warrants) and convertible promissory notes 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, so long as the preemptive rights of first offer established by this Section 5 applied 2 were complied with, waived, or were inapplicable pursuant to any provision of this Section 2.4 with respect to the initial sale or grant by the Company of such rights rights, agreements, options or agreementswarrants; (c) any Equity Securities issued for consideration other than cash pursuant to a mergeran acquisition by the Company of the capital stock or assets of another company (including by way of merger or consolidation), consolidation, provided such acquisition or similar business combinationis approved by the Board; (d) after the date hereof, any Equity Securities which in the aggregate exceed ten percent (10%) of the Company's outstanding capital stock on a fully diluted basis issued to a potential or existing customer or supplier or other strategic relationship or issued in connection with a credit facility any share split, share dividend on or equipment lease transactionrecapitalization of the outstanding Equity Securities of the Company; (e) shares any Equity Securities representing in the aggregate not more than 1.0% of the outstanding Common Stock Shares issued pursuant to arrangements with the Company’s vendors or suppliers, any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution, in connection with any stock split, stock dividend each case provided that such arrangement or recapitalization financing is approved by the CompanyBoard; (f) shares of Common Stock issued upon conversion of the Shares; (g) any Equity Securities that are issued by the Company pursuant to a registration statement filed under Qualified IPO or in a transaction that closes on or before June 30, 2008 and values the outstanding equity of the Company immediately prior to such transaction at not less than €346,000,000; (g) any Equity Securities Actissued by the Company pursuant to the terms of Section 3 of the Purchase Agreement; (h) any Common Shares sold on or prior to February 15, 2008 at a price of not less than €4,754 per share and for an aggregate purchase price not to exceed €1,765,206; provided that the Company has presented the Preferred Investor a list of the proposed purchasers of such Common Shares on or prior to January 15, 2008 (which purchasers may include G▇▇▇▇▇▇ ▇▇▇▇▇ and members of his immediate family); and (i) any Equity Securities representing in the aggregate, on an as converted or as exercised basis if applicable, not more than 10.0% of the outstanding Common Shares of the Company on a pro forma basis after giving effect to the issuance of all Common Shares issuable or issued upon conversion of the Series A Preference Shares or other outstanding convertible securities; provided that such sale of Equity Securities pursuant to this paragraph (i) is completed on or prior to June 30, 2008 at a Common Share equivalent price per share equal to or greater than 1.5 times the quotient of (A) the sum of (x) €51,965,666 plus (y) the proceeds actually received by the Company from the issuance of any Common Shares pursuant to Section 2.4(h) plus (z) the proceeds actually received by the Company from the issuance of any Series A Preference Shares issued pursuant to Section 3 of the Purchase Agreement, divided by (B) the number of outstanding Common Shares (including all Common Shares issuable or issued upon conversion of the Series A Preference Shares or other outstanding convertible securities) immediately prior to such sale.

Excluded Securities. The preemptive rights of first offer established by this Section 5 shall have no application to any of the following Equity Securities: (a) shares of Common Stock (and/or options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) (as adjusted for stock splits, recapitalizations and the like) issued or to be issued 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, including the representatives designated by the holders of the Shares but excluding the Founders; (b) stock issued pursuant to any rights or agreements outstanding as of the date of this Agreementrights, agreements, options, warrants (including the Nova Scotia, Harpeth and UA Warrants) and convertible promissory notes outstanding as of the date of this Agreement and referenced in the schedule of exceptions (Schedule 3.3) to the Purchase Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, providedPROVIDED, thatTHAT, the preemptive 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 combinationcombination approved by the Board of Directors; (d) after the date hereof, any Equity Securities which in the aggregate exceed ten percent (10%) of the Company's outstanding capital stock on a fully diluted basis issued to a potential or existing customer or supplier or other strategic relationship or issued in connection with a credit facility or equipment lease transaction; (e) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (fe) shares of Common Stock issued upon conversion of the Shares; (gf) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; and (g) shares of capital stock, or other securities, or warrants, rights, options or other convertible securities, issued in any transaction in which the price per share of Common Stock equivalents is not less than the then-effective Series C Conversion Price, PROVIDED, THAT, the value of shares issued do not exceed $500,000 with respect to any one transaction and $1,500,000 in the aggregate.

Excluded Securities. The rights of first offer refusal established by this Section 5 4 shall have no application to any of the following Equity Securities: (a) up to an aggregate amount of 5,000,000 shares of Common Stock (and/or options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued to employees, officers or directors of, or consultants or advisors to the Company (including members of the Company's Scientific Advisory Board) or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors, including the representatives designated by the holders of the Shares but excluding the Founders; (b) stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement, options, options and warrants (including the Nova Scotia, Harpeth and UA Warrants) and convertible promissory notes 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, provided that the rights of first offer refusal and co-investment established by this Section 5 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; provided, however, that such right shall not apply to the issuance of the Series C Preferred Stock or the Series C Warrants being issued pursuant to the Series C Purchase Agreement simultaneously herewith, or the issuance of the Series C Warrant Shares upon the exercise of the Series C Warrants; and provided further, however, that such right shall not apply to the issuance of the Series B Preferred Stock to be issued pursuant to the Series B Purchase Agreement as contemplated hereunder; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; (d) after the date hereof, any Equity Securities which in the aggregate exceed ten percent (10%) of the Company's outstanding capital stock on a fully diluted basis issued to a potential or existing customer or supplier or other strategic relationship or issued in connection with a credit facility or equipment lease transaction; (e) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (fe) 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 pursuant to a registration statement filed under the Securities Act; and (h) any Equity Securities issued in connection with corporate partnering transactions, if such issuance is approved by the Board of Directors.

Excluded Securities. The preemptive rights of first offer established by this Section 5 shall have no application to any of the following Equity Securities: (a) shares of Common Stock (and/or options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) (as adjusted for stock splits, recapitalizations and the like) issued or to be issued 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, including the representatives designated by the holders of the Shares but excluding the Founders; (b) stock issued pursuant to any rights or agreements outstanding as of the date of this Agreementrights, agreements, options, warrants (including the Nova Scotia, Harpeth and UA Warrants) and convertible promissory notes outstanding as of the date of this AgreementAgreement and referenced in the schedule of exceptions (Schedule 3.3) to the Purchase Agreements; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, providedPROVIDED, thatTHAT, the preemptive 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 combinationcombination approved by the Board of Directors; (d) after the date hereof, any Equity Securities which in the aggregate exceed ten percent (10%) of the Company's outstanding capital stock on a fully diluted basis issued to a potential or existing customer or supplier or other strategic relationship or issued in connection with a credit facility or equipment lease transaction; (e) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (fe) shares of Common Stock issued upon conversion of the Shares; (gf) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; and (g) shares of capital stock, or other securities, or warrants, rights, options or other convertible securities, issued in any transaction in which the price per share of Common Stock equivalents is not less than the then-effective Series C Conversion Price, PROVIDED, THAT, the value of shares issued do not exceed $500,000 with respect to any one transaction and $1,500,000 in the aggregate.

Excluded Securities. The rights of first offer refusal established by this Section 5 4 shall have no application to any of the following Equity Securities: (a) Up to 7,500,000 shares of Common Stock (and/or options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued to employees, officers or directors of, or consultants or advisors to the Company or any subsidiarysubsidiary (for the primary purpose of soliciting or retaining their services) after the date of this Agreement, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors, including the representatives designated by the holders of the Shares but excluding the Founders; (b) stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement, options, options and warrants (including the Nova Scotia, Harpeth and UA Warrants) and convertible promissory notes 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, provided that the rights of first offer refusal established by this Section 5 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 bona fide merger, consolidation, acquisition or similar business combination; (d) after the date hereof, any Equity Securities which in the aggregate exceed ten percent (10%) of the Company's outstanding capital stock on a fully diluted basis issued to a potential or existing customer or supplier or other strategic relationship or issued in connection with a credit facility or equipment lease transaction; (e) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (fe) 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 (provided such issuances are for other than primarily equity financing purposes); (g) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; and (h) 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.

Excluded Securities. The rights of first offer refusal established by this Section 5 4 shall have no application to any of the following Equity Securities: (a) Shares of Series E Preferred Stock issued pursuant to the Purchase Agreement, and Common Stock issued upon conversion thereof; (b) Shares of Series D Preferred Stock issued pursuant to the Series D SPA, and Common Stock issued upon conversion thereof; (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) rights issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to 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, Directors including the representatives designated by the holders affirmative vote of the Shares but excluding majority of the FoundersSeries Preferred Representatives; (bd) stock issued or issuable pursuant to any rights or agreements outstanding as of the date of this Agreementagreements, options, warrants (including the Nova Scotia, Harpeth and UA Warrants) and or convertible promissory notes 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, provided, that, so long as the rights of first offer refusal established by this Section 5 applied 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; (ce) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combinationcombination approved by the Board of Directors including the affirmative vote of the majority of the Series Preferred Representatives; (df) after the date hereof, any Equity Securities which in the aggregate exceed ten percent (10%) of the Company's outstanding capital stock on a fully diluted basis issued to a potential or existing customer or supplier or other strategic relationship or issued in connection with a credit facility or equipment lease transaction; (e) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (f) shares of Common Stock issued upon conversion of the Shares; (g) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; (h) 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 the affirmative vote of the majority of the Series Preferred Representatives; (i) any Equity Securities issued in connection with strategic 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, 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 Company’s Board of Directors including the affirmative vote of the majority of the Series Preferred Representatives.

Excluded Securities. The rights of first offer to maintain interest established by this Section 5 4 shall have no application to any of the following Equity Securities: (a) up to 15,562,037 shares of Common Stock (and/or options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued 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 a majority of the Board of Directors (provided that such number shall be increased or decreased to reflect the number of shares excluded from the definition of "Additional Shares of Common Stock" in Section 4(j)(4) of the Company's Certificate of Incorporation, so long as such increase or decrease is approved by a majority of the Board of Directors, including the representatives designated by the holders of the Shares but excluding the Founders); (b) stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement, options, options and warrants (including the Nova Scotia, Harpeth and UA Warrants) and convertible promissory notes 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, provided that the rights of first offer to maintain interest established by this Section 5 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) after the date hereof, any Equity Securities which in the aggregate exceed ten percent (10%) of the Company's outstanding capital stock on a fully diluted basis issued to a potential or existing customer or supplier or other strategic relationship or issued in connection with a credit facility or equipment lease transaction; (e) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (fe) 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 pursuant to a registration statement filed under pertaining to the Securities ActCompany's Initial Offering or in any private placement of Common Stock that closes concurrently with such Initial Offering; (h) shares of Series E Preferred Stock issued by the Company pursuant to the Series E Stock Purchase Agreement dated as of the date hereof, including any shares issued in subsequent closings pursuant to Section 2.3 of the Series E Stock Purchase Agreement; (i) shares of Common Stock or Preferred Stock (and shares of Common Stock issued upon conversion thereof) which may be issued to any of the Series D Investors pursuant to the agreements between the Company and such Series D Investors described on the Schedule of Exceptions to the Series D Purchase Agreement; (j) all options issued pursuant to the InsurQuote Systems, Inc. 1994 Stock Option Plan that are to be assumed by the Company in connection with the consummation of the transaction contemplated in the InsurQuote Merger Agreement; and (k) shares of Common Stock issuable upon exercise of that certain Warrant to purchase 10,000 shares of InsurQuote Common Stock held by Real Time Internet Services to be assumed by the Company pursuant to the InsurQuote Merger Agreement.

Excluded Securities. The rights of first offer refusal established by this Section 5 4 shall have no application to any of the following Equity Securities: (a) up to an aggregate of one million two hundred thirty-nine thousand forty-eight (1,239,048) 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 hereof); provided, however, that the number of shares under this Section 4.6(a) shall be increased to reflect any shares of Common Stock (i) not issued pursuant to the rights, agreements, option or warrants whether granted prior to, on or after the date hereof (“Unexercised Options”) issued or to be issued to as a result of the termination of such Unexercised Options, (ii) reacquired by the Company from employees, officers or directors of, or consultants at cost (or advisors 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 or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are (iii) the authorization of which is approved by the Board of Directors, including the representatives designated by the holders of at least seventy-five percent (75%) of the Shares but excluding Company’s Series A Preferred Stock, whether upon amendment to the FoundersCompany’s 2004 Stock Incentive Plan or otherwise; (b) stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement, options, warrants (including the Nova Scotia, Harpeth and UA Warrants) and convertible promissory notes 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 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 solely for cash pursuant to a merger, consolidation, acquisition acquisition, strategic alliance or agreement, or similar business combinationcombination approved by the Board of Directors including the affirmative vote of both representatives designated by the holders of the Shares; (dc) after the date hereof, any Equity Securities which in the aggregate exceed ten percent (10%) of the Company's outstanding capital stock on a fully diluted basis issued to a potential or existing customer or supplier or other strategic relationship or issued in connection with a credit facility or equipment lease transaction; (e) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (fd) shares 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 Common Stock issued upon conversion Directors, including the affirmative vote of one (1) of the representatives designated by the holders of the Shares; (ge) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; (f) any Equity Securities issued by the Company pursuant to the terms of Section 2.2 of the Purchase Agreement; (g) any Equity Securities issued to University License Equity Holdings, Inc. (“ULEHI”) or one (1) of its affiliates pursuant to the anti-dilution covenant in Section 5 of that certain Subscription Agreement dated October 14, 2005 between the Company and ULEHI (as the same is amended, restated or otherwise modified after the date hereof); and (h) any Equity Securities issued or issuable pursuant to any other rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement, including, but not limited to, the one million seven hundred fifteen thousand six hundred forty-six (1,715,646) options outstanding under the Company’s 2004 Stock Incentive Plan as of the date hereof.

Excluded Securities. The rights of first offer refusal established by this Section 5 4 shall have no application to any of the following Equity Securities: (a) 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) 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 Company’s Board of Directors, including the representatives designated by the holders provided, however, that such Common Stock and rights therefor may not exceed 10% of all issued and outstanding Common Stock of the Shares but excluding the FoundersCompany at any time; (b) stock issued pursuant to any rights or agreements outstanding as of the date of this Agreementagreements, options, warrants (including the Nova Scotia, Harpeth or convertible securities permitted by and UA Warrants) and convertible promissory notes 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, so long as the rights of first offer refusal established by this Section 5 applied 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; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; provided that prior to October 8, 2017, (i) if ▇▇▇▇▇-▇▇▇▇ and/or any person or entity affiliated with ▇▇▇▇▇-▇▇▇▇ owns any shares of then-outstanding Registrable Securities of the Company, any issuance contemplated by this Section 4.7(c) shall have been approved by ▇▇▇▇▇-▇▇▇▇, (ii) if Oak and/or any person or entity affiliated with Oak owns any shares of then-outstanding Registrable Securities of the Company, any issuance contemplated by this Section 4.7(c) shall have been approved by Oak, (iii) if the Sol Khazani Living Trust owns any shares of then-outstanding Registrable Securities of the Company, any issuance contemplated by this Section 4.7(c) shall have been approved by the Sol Khazani Living Trust and (iv) if Cox owns any shares of then-outstanding Registrable Securities of the Company, any issuance contemplated by this Section 4.7(c) shall have been approved by Cox; (d) after the date hereof, any Equity Securities which in the aggregate exceed ten percent (10%) of the Company's outstanding capital stock on a fully diluted basis issued to a potential or existing customer or supplier or other strategic relationship or issued in connection with a credit facility or equipment lease transaction; (e) shares of Common Stock issued in connection with any stock split, split or stock dividend or recapitalization by the Company; (fe) 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 prior to October 8, 2017, (i) if ▇▇▇▇▇-▇▇▇▇ and/or any person or entity affiliated with ▇▇▇▇▇-▇▇▇▇ owns any shares of Common Stock issued upon conversion then-outstanding Registrable Securities of the SharesCompany, any issuance contemplated by this Section 4.7(e) shall have been approved by ▇▇▇▇▇-▇▇▇▇, (ii) if Oak and/or any person or entity affiliated with Oak owns any shares of then-outstanding Registrable Securities of the Company, any issuance contemplated by this Section 4.7(e) shall have been approved by Oak, (iii) if the Sol Khazani Living Trust owns any shares of then-outstanding Registrable Securities of the Company, any issuance contemplated by this Section 4.7(e) shall have been approved by the Sol Khazani Living Trust and (iv) if Cox owns any shares of then-outstanding Registrable Securities of the Company, any issuance contemplated by this Section 4.7(e) shall have been approved by Cox; (gf) any Equity Securities that are issued by the Company pursuant to a registration statement filed under an underwritten public offering of up to 19.9% of the fully diluted common stock of the Company if such issuance generates net proceeds of at least $30 million for the Company; and (g) any Equity Securities Actissued by the Company pursuant to the terms of the Purchase Agreement.

Excluded Securities. The rights of first offer refusal established ------------------- by this Section 5 7 shall have no application to any of the following Equity Securities: : (a) shares of Common Preferred Stock (and/or options, warrants or other Common Stock purchase rights Warrants issued pursuant to such optionsthis Agreement, warrants or other rights) issued or to be issued to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, including without limitation pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of DirectorsSection 3(c) hereof, including the representatives designated by the holders of the Shares but excluding the Founders; (b) the Conversion Stock or the Warrant Stock, (c) stock issued pursuant to any rights or agreements (including, without limitation, convertible securities, options and warrants) outstanding on the date hereof as set forth on Annex E pursuant to Section 5.5(c) hereof, (d) any Common Stock issued to employees, officers, directors, consultants or advisors of the date Company for the primary purpose of this Agreementsoliciting or retaining their services, options, warrants (including the Nova Scotia, Harpeth and UA Warrants) and convertible promissory notes outstanding as of the date of this Agreement; and stock whether issued pursuant to any such rights the Stock Plans or agreements granted after the date of this Agreementotherwise, 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; (ce) any Equity Securities issued for a consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; , (df) after the date hereof, any Equity Securities which in the aggregate exceed ten percent (10%) of the Company's outstanding capital stock on a fully diluted basis issued to a potential or existing customer or supplier or other strategic relationship or issued in connection with a credit facility or equipment lease transaction; (e) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (f) shares of Common Stock issued upon conversion of the Shares; reverse stock split, (g) any Equity Securities that are issued by the Company pursuant to in a registration statement filed bona fide, firmly underwritten public offering registered under the Securities Act, (h) any Equity Securities which the Holders of a Majority of Preferred Stock agree shall not be subject to this Section 7 and (i) shares of the Company's Series D Preferred Stock, Series E Preferred Stock or Series F Preferred Stock outstanding on the date hereof and shares of Common Stock issuable upon conversion thereof or as a dividend thereon.

Excluded Securities. The rights of first offer refusal established by this Section 5 4 shall have no application to any of the following Equity Securities: (a) 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) rights issued or to be issued after the Original Issue Date (as defined in the Company's Certificate of Incorporation) 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, including the representatives designated by the holders of the Shares but excluding the Founders; (b) stock issued or issuable pursuant to any rights or agreements outstanding as of the date of this Agreementagreements, options, warrants (including the Nova Scotia, Harpeth and UA Warrants) and or convertible promissory notes 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, provided, that, so long as the rights of first offer refusal established by this Section 5 applied 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; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combinationcombination approved by the Board of Directors; (d) after the date hereof, any Equity Securities which in the aggregate exceed ten percent (10%) of the Company's outstanding capital stock on a fully diluted basis issued to a potential or existing customer or supplier or other strategic relationship or issued in connection with a credit facility or equipment lease transaction; (e) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (fe) shares of Common Stock issued upon conversion of or as a dividend or distribution on shares of the SharesCompany'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 approved by the Board of Directors; (g) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; and (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, (ii) research and development arrangements, (iii) licensing or collaborative arrangements or (iv) similar arrangements, any of which are approved by the Board of Directors.