Common use of Excluded Securities Clause in Contracts

Excluded Securities. The rights of first refusal in favor of Buyer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 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 of the Company, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Company's Board of Directors, including the representative or representatives on the Board designated by Buyer; (b) any Equity Securities issued pursuant to any rights, agreements, options or warrants outstanding as of the date of this Agreement; and Equity Securities 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 1 and Section 2 (if still in effect) applied with respect to the initial sale or grant by the Company of such rights, agreements, options or warrants; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company;

Excluded Securities. The rights of first refusal in favor of Buyer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 Article IV shall have no application to any of the following Equity Securities: (a) 4.7.1 shares of common stock Common Stock (and/or options, warrants or other common stock 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 of the Companysubsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Company's Board of Directors, including the representative or representatives on the Board designated by BuyerBoard; (b) any Equity Securities 4.7.2 stock issued pursuant to any rights, agreements, options or warrants outstanding as of the date of this Agreement; Agreement and Equity Securities 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 1 and Section 2 (if still in effect) Article IV applied with respect to the initial sale or grant by the Company of such rights, agreements, options or warrants; (c) 4.7.3 any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; ; 4.7.4 any Equity Securities that are issued by the Company as part of an underwritten public offering referred to in Section 4.3 hereof; 4.7.5 shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; 4.7.6 shares of Common Stock issued upon conversion of the Series A Preferred Stock or the Series B Preferred Stock; and 4.7.7 any Equity Securities issued pursuant to any equipment leasing arrangement, bank financing, licenses or nonfinancial business arrangements.

Excluded Securities. The rights of first refusal in favor of Buyer offer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 Article IV shall have no application to any of the following Equity Securities: (a) 4.6.1 shares of common stock Common Stock (and/or options, warrants or other common stock rights to purchase rights issued pursuant to such options, warrants or other rightsCommon Stock ) issued or to be issued to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary of the Companysubsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Company's Board of Directors, including the representative or representatives on the Board designated by Buyer; (b) any Equity Securities 4.6.2 stock issued pursuant to any rightsrights or agreements outstanding as of the date of this Agreement, agreements, stock issued pursuant to any options or and warrants outstanding as of the date of this Agreement; , and Equity Securities stock issued pursuant to any such rights, agreements, options rights or warrants agreements granted after the date of this Agreement; provided that the rights of first refusal established by this Section 1 and Section 2 (if still in effect) Article IV applied with respect to the initial sale or grant by the Company of such rights, rights or agreements, options or warrants; (c) 4.6.3 any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; any Equity Securities ; 4.6.4 shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; 4.6.5 shares of Common Stock issued upon conversion of the Shares; 4.6.6 any Equity Securities issued pursuant to any equipment leasing arrangement, or commercial financing; 4.6.7 any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; and 4.6.8 shares of the Company's Common Stock or Preferred Stock issued 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 transaction and the issuance of shares therein, have been approved by the Company's Board of Directors.

Excluded Securities. The rights of first refusal in favor of Buyer Purchase Rights established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 11 shall have no application to any of the following Equity Securities (collectively, the “Excluded Securities:”): (a) 11.6.1. any Common Stock issued upon conversion of the Series Preferred Stock outstanding as of the date of this Agreement; 11.6.2. shares of common stock Common Stock (and/or options, warrants or other common stock Common Stock purchase rights therefor or shares of Common Stock 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 of the Companysubsidiary, pursuant to stock purchase or stock option plans or other similar arrangements that are approved by the Company's Board of Directors, including a majority of the representative or representatives on Preferred Directors, and in accordance with Article Fourth Part B Section 7 of the Board designated by BuyerCertificate of Incorporation; (b) 11.6.3. any Equity Securities Common Stock issued pursuant to any rights, agreements, upon exercise of options or warrants outstanding as of the date of this Agreement; and Equity Securities ; 11.6.4. any Series Preferred Stock issued pursuant to any such rights, agreements, options or upon exercise of warrants granted after outstanding as of the date of this Agreement; provided that the rights of first refusal established by this Section 1 Agreement and Section 2 (if still in effect) applied with respect to the initial sale or grant by the Company any Common Stock issuable upon conversion of such rights, agreements, options or warrantsSeries Preferred Stock; (c) 11.6.5. any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; any Equity Securities Common Stock issued in connection with any stock splitacquisitions, stock dividend mergers or recapitalization strategic partnership transactions (other than transactions entered into primarily for equity financing purposes) that have been approved by the CompanyBoard of Directors, including a majority of the Preferred Directors, and in accordance with Article Fourth Part B Section 7 of the Certificate of Incorporation; 11.6.6. any Common Stock issued pursuant to an Initial Public Offering;

Excluded Securities. The rights right of first refusal in favor of Buyer established by this Section 1 Sections 4.2, 4.3 and the rights of first refusal in favor of the Common Holders established by Section 2 4.4 shall have no application to any of the following Equity Securities: (a) shares of common stock Common Stock (and/or options, warrants or other common stock 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 of the Companysubsidiary, pursuant to stock purchase or stock option plans or other compensatory arrangements that are approved by the Company's Board of Directors, including the representative or representatives on the Board designated by Buyer; (b) any Equity Securities stock issued pursuant to any rights, agreements, options or warrants outstanding as of the date of this Agreement; , and Equity Securities stock issued pursuant to any such rights, agreements, options or warrants granted after the date of this Agreement; Agreement provided that the rights right of first refusal established by this Section 1 and Section 2 (if still in effect) applied with respect 4 did not apply to the initial sale or grant by the Company of such rights, agreements, options or warrants; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; any Equity Securities 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; (e) shares of Common Stock issued upon conversion of any Equity Securities; (f) any Equity Securities issued pursuant to any equipment leasing arrangement; and (g) shares of the Company's Common Stock or Preferred Stock issued 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

Excluded Securities. The rights of first refusal in favor of Buyer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 Article IV shall have no application to any of the following Equity Securities: (aA) shares of common stock Common Stock (and/or options, warrants or other common stock 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 of to, the Company, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Company's Board of Directors, including Directors of the representative or representatives on the Board designated by BuyerCompany; (bB) any Equity Securities stock issued pursuant to any rights, agreements, options or warrants outstanding as of the date of this Agreement; and Equity Securities 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 1 and Section 2 (if still in effect) Article IV applied with respect to the initial sale or grant by the Company of such rights, agreements, options or warrants; (cC) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; ; (D) any Equity Securities that are issued by the Company as part of the Initial 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; (F) shares of Common Stock issued upon conversion of the Company's Preferred Stock; and (G) any Equity Securities issued pursuant to any equipment leasing arrangement or commercial bank financing approved by the Company's Board of Directors.

Excluded Securities. The rights of first refusal in favor of Buyer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 4 shall have no application to any of the following Equity Securities: (a) 4.5.1 shares of common stock Common Stock (and/or options, warrants or other common stock 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 of the Companysubsidiary, pursuant to stock purchase or stock option plans compensation plans, agreements, or other arrangements that are approved by the Company's Board of Directors, including the representative or representatives on the Board designated by Buyer; (b) any Equity Securities 4.5.2 stock, options or warrants issued pursuant to any rights, agreements, rights or agreements outstanding as of the date of this Agreement, 4.5.3 options or and warrants outstanding as of the date of this Agreement; and Equity Securities ; 4.5.4 stock issued pursuant to any such rights, agreements, options rights or warrants agreements granted after the date of this Agreement; , provided that the rights of first refusal established by this Section 1 and Section 2 (if still in effect) 4 applied with respect to the initial sale or grant by the Company of such rights, rights or agreements, options or warrants; (c) 4.5.5 any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; any Equity Securities ; 4.5.6 shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; 4.5.7 shares of Common Stock issued upon conversion of the Shares; 4.5.8 any Equity Securities issued pursuant to any equipment leasing arrangement or debt financing from a bank or similar financial institution or issued in connection with a bridge financing; 4.5.9 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

Excluded Securities. The preemptive rights of first refusal in favor of Buyer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 4 shall have no application to any of the following Equity Securities: (a) : 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) 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 of the Companysubsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Company's Board of Directors, including the representative Board; stock issued or representatives on the Board designated by Buyer; (b) any Equity Securities issued issuable pursuant to any rights, rights or agreements, options options, warrants or warrants convertible securities outstanding as of the date of this Agreement; and Equity Securities stock issued pursuant to any such rights, agreements, options rights or warrants agreements granted after the date of this Agreement; provided that , so long as the rights of first refusal established by this Section 1 and 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 2 (if still in effect) applied 4.7 with respect to the initial sale or grant by the Company of such rights, rights or agreements, options or warrants; (c) ; any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combinationcombination approved by the Board; any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company;; 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; and any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act.

Excluded Securities. The rights of first refusal in favor of Buyer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 4 shall have no application to any of the following Equity Securities: (a) up to an aggregate amount of 487,106 shares of common stock Common Stock (and/or options, warrants or other common stock Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued issuable to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary of the Companysubsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Company's Board of Directors, including and, upon reasonable justification by the representative or representatives on Company, an additional 243,553 shares available to be issued under this Section 4.6(a) upon consent of the Board designated by BuyerSeries D-E Holders holding sixty-six and two-thirds percent (66 2/3%) of the Registrable Securities then outstanding, which consent shall not be unreasonably withheld; (b) any Equity Securities stock issued pursuant to any rights, agreementsrights or agreements outstanding as of the date of this Agreement, options or and warrants outstanding as of the date of this Agreement; and Equity Securities 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 1 and Section 2 (if still in effect) 4 applied with respect to the initial sale or grant by the Company of such rights, rights or agreements, options or warrants; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (d) shares of Common Stock issued upon conversion of the Preferred Stock; (e) any Equity Securities that are issued by the Company pursuant to a Qualified Public Offering; and (f) shares of Equity Securities (not to exceed 5% of the Common Stock of the Company, determined on a fully diluted, as converted basis) issued in connection with a strategic alliance with a pharmaceutical or biotechnology company approved unanimously by the Company's Board of Directors.

Excluded Securities. The rights of first refusal in favor of Buyer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 Article IV shall have no application to any of the following Equity Securities: (a) shares 4.7.1 Shares of common stock Common Stock (and/or options, warrants or other common stock 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 of the Companysubsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Company's Board of Directors, including Directors of the representative or representatives on the Board designated by BuyerCompany; (b) any Equity Securities 4.7.2 Stock issued pursuant to any rights, agreementsrights or agreements outstanding as of the date of this Agreement, options or and warrants outstanding as of the date of this Agreement; , and Equity Securities stock issued pursuant to any such rights, agreements, options rights or warrants agreements granted after the date of this Agreement; , provided that the rights of first refusal established by this Section 1 and Section 2 (if still in effect) Article IV applied with respect to the initial sale or grant by the Company of such rights, rights or agreements, options or warrants; (c) any 4.7.3 Any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; any ; 4.7.4 Any Equity Securities that are issued by the Company as part of an underwritten public offering referred to in Section 4.4 hereof; 4.7.5 Shares of Series A and Series B Preferred Stock issued after the date hereof; provided, however, that such Series A and Series B Preferred Stock are deemed to be "Shares" pursuant to Section 2.3 of the Series A Agreement and Section 2.3 of the Purchase Agreement, respectively; 4.7.6 Stock, warrants or other securities or rights issued in connection with any stock splitequipment leasing or bank financing transactions, stock dividend provided such issuances are for other than primarily equity financing purposes; 4.7.7 Stock, warrants or recapitalization other securities or rights issued to academic or research institutions in connection with (i) the license of technology from such institutions or (ii) research and development services provided by such institutions; 4.7.8 Stock, warrants or other securities or rights issued in connection with a transaction with a corporation or other third party which is not primarily in the Companybusiness of making equity investments that also involves other strategic elements such as, but not by way of limitation, a joint marketing agreement, a license agreement or a technology development agreement;

Excluded Securities. The rights of first refusal in favor of Buyer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 5 shall have no application to any of the following Equity Securities: (a) shares of common stock Common Stock (and/or options, warrants or other common stock 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 of the Companysubsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Company's Board of Directors, including the representative or representatives on the Board designated by Buyer; (b) any Equity Securities stock issued pursuant to any rightsrights or agreements outstanding as of the date of this Agreement, agreements, including options or and warrants outstanding as of the date of this Agreement; , and Equity Securities stock issued pursuant to any such rights, agreements, options rights or warrants agreements granted after the date of this Agreement; , provided that the rights of first refusal established by this Section 1 and Section 2 (if still in effect) 5 applied with respect to the initial sale or grant by the Company of such rights, rights or agreements, options or warrants; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; any Equity Securities ; (d) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (e) shares of Common Stock issued upon conversion of the Shares; (f) any Equity Securities issued in connection with any technology licensing, corporate Partnering, equipment leasing arrangement, debt financing or similar transaction approved by the Board of Directors; and (g) any Equity Securities that are issued by the Company in the Initial Offering.

Excluded Securities. The rights of first refusal in favor of Buyer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 Article V shall have no application to any of the following Equity Securities: (a) 5.5.1 shares of common stock Common Stock (and/or options, warrants or other common stock 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 to, the Company or any subsidiary of the Companysubsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Company's Board of Directors, including the representative or representatives on the Board designated by BuyerBoard; (b) any Equity Securities 5.5.2 stock issued pursuant to any rights, agreementsrights or agreements outstanding as of the date of this Agreement, options or and warrants outstanding as of the date of this Agreement; , and Equity Securities stock issued pursuant to any such rights, agreements, options rights or warrants agreements granted after the date of this Agreement; , provided that the rights of first refusal established by this Section 1 and Section 2 (if still in effect) Article V applied with respect to the initial sale or grant by the Company of such rights, rights or agreements, options or warrants; (c) 5.5.3 any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; ; 5.5.4 any Equity Securities that are issued by the Company as part of an underwritten public offering referred to in Section 5.3 hereof; 5.5.5 shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; 5.5.6 shares of Common Stock issued upon conversion of the Shares; and 5.5.7 any Equity Securities issued pursuant to any equipment leasing arrangement or bank financing.

Excluded Securities. The rights of first refusal in favor of Buyer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 4 shall have no application to any of the following Equity Securities: (a) shares of common stock Common Stock (and/or options, warrants or other common stock 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 for the primary purpose of the Companysoliciting or retaining their services, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Company's Board of Directors; provided, including however, that following the representative effective date of this Agreement, options, warrants or representatives on other Common Stock purchase rights to purchase more than an aggregate of 1,665,989 shares of the Board designated by Buyer;Company's Common Stock (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like) shall not be issued without the approval of the holders of at least seventy-six percent (76%) of the outstanding Series D Preferred. (b) any Equity Securities stock issued pursuant to any Common Stock purchase rights, agreements, options or and warrants outstanding as of the date of this Agreement; and Equity Securities stock issued pursuant to any such Common Stock purchase rights, agreements, options or and warrants granted after the date of this Agreement; , provided that the rights of first refusal established by this Section 1 and Section 2 (if still in effect) 4 applied with respect to the initial sale or grant by the Company of such rights, agreements, options or warrants; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; any Equity Securities combination and approved by at least seventy-six percent (76%) of the outstanding Series D Preferred; (d) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (e) 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 (g) any Equity Securities that are issued by the Company in its Initial Offering. (h) shares of Series D Preferred Stock issued at closings subsequent to the date of this Agreement as contemplated by the Purchase Agreement.

Excluded Securities. The rights of first refusal in favor of Buyer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 4 shall have no application to any of the following Equity Securities: (a) shares of common stock Common Stock (and/or options, warrants or other common stock 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 of the Companysubsidiary, pursuant to stock purchase or stock option plans or other arrangements or agreements that are approved by the Company's Board of Directors, including the representative or representatives on the Board designated by Buyer; (b) any Equity Securities stock issued pursuant to any rights, agreementsor options, options warrants or warrants agreements outstanding as of the date of this Agreement; and Equity Securities stock issued after the date of this Agreement pursuant to any such rights, agreementsoptions, options warrants or warrants agreements granted after or sold in transactions to which the date of this Agreement; provided that the rights right of first refusal established by this Section 1 and Section 2 (if still in effect) 4 was applied with respect to the initial sale or grant by the Company of such rights, agreements, options or warrantsexcluded; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; any Equity Securities 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; (e) 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 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

Excluded Securities. The rights of first refusal in favor of Buyer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 4 shall have no application to any of the following Equity Securities: (a) 4.6.1 up to 3,569,000 shares of common stock Common Stock (and/or options, warrants or other common stock Common Stock purchase rights issued pursuant to such options, warrants or other 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 of the Companysubsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Company's Board of Directors, (including the representative or representatives therein options outstanding on the Board designated date hereof) plus any shares reacquired by Buyerthe Company from such persons upon termination of such persons' service relationship with the Company; (b) any Equity Securities 4.6.2 stock issued pursuant to any rights, agreementsrights or agreements outstanding as of the date of this Agreement, options or and warrants outstanding as of the date of this Agreement; and Equity Securities stock issued pursuant to any such rights, agreements, options rights or warrants agreements granted after the date of this Agreement; , provided that the rights of first refusal established by this Section 1 and Section 2 (if still in effect) 4 applied with respect to the initial sale or grant by the Company of such rights, rights or agreements, options or warrants; (c) 4.6.3 any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; ; 4.6.4 any Equity Securities that are issued by the Company as part of an underwritten public offering referred to in Section 4.4 hereof; 4.6.5 shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; 4.6.6 shares of Common Stock issued upon conversion of the Preferred Stock; and 4.6.7 any Equity Securities issued pursuant to any equipment leasing arrangement or bank financing approved by the Company's Board of Directors.

Excluded Securities. The rights of first refusal in favor of Buyer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 Article III shall have no application to any of the following Equity Securities: (a) 3.6.1 shares of common stock Common Stock (and/or options, warrants or other common stock 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 of the Companysubsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Company's Board of Directors, including the representative or representatives on the Board designated by Buyer; (b) any Equity Securities 3.6.2 stock issued pursuant to any rights, agreementsrights or agreements outstanding as of the date of this Agreement, options and warrants (other than options, warrants or warrants other Common Stock purchase rights covered by Section 3.6.1 above) outstanding as of the date of this Agreement; and Equity Securities stock issued pursuant to any such rights, agreements, options rights or warrants agreements granted after the date of this Agreement; , provided that the rights of first refusal established by this Section 1 and Section 2 (if still in effect) Article III applied with respect to the initial sale or grant by the Company of such rights, rights or agreements, options or warrants; (c) 3.6.3 any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; any Equity Securities ; 3.6.4 shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; 3.6.5 any Equity Securities issued pursuant to any equipment leasing arrangement, or bank financing; 3.6.6 any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; and 3.6.7 shares of the Company's Common Stock or Preferred Stock issued 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 issuance of shares therein, has been approved by the Company's Board of Directors.

Excluded Securities. The rights of first refusal in favor of Buyer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 Article IV shall have no application to any of the following Equity Securities: (a) shares of common stock Common Stock (and/or options, warrants or other common stock 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 of to, the Company, pursuant to stock purchase or stock option plans or other compensation arrangements that are approved by the Company's Board of Directors, including Directors of the representative or representatives on the Board designated by BuyerCompany; (b) any Equity Securities stock issued pursuant to any rights, agreements, options or warrants outstanding as of the date of this Agreement; and Equity Securities 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 1 and Section 2 (if still in effect) Article IV applied with respect to the initial sale or grant by the Company of such rights, agreements, options or warrants; (c) any Any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; ; (d) any Equity Securities that are issued by the Company as part of the Initial 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; (f) shares of Common Stock issued upon conversion of the Company's Preferred Stock; and (g) any Equity Securities issued pursuant to any equipment leasing arrangement or commercial bank financing approved by the Company's Board of Directors.

Excluded Securities. The rights of first refusal in favor of Buyer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 Article IV shall have no application to any of the following Equity Securities: (aA) shares of common stock Common Stock (and/or options, warrants or other common stock 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 of to, the Company, pursuant to stock purchase or stock option plans or other compensation arrangements that are approved by the Company's Board of Directors, including Directors of the representative or representatives on the Board designated by BuyerCompany; (bB) any Equity Securities stock issued pursuant to any rights, agreements, options or warrants outstanding as of the date of this Agreement; and Equity Securities 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 1 and Section 2 (if still in effect) Article IV applied with respect to the initial sale or grant by the Company of such rights, agreements, options or warrants; (cC) any Any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; ; (D) any Equity Securities that are issued by the Company as part of the Initial 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; (F) shares of Common Stock issued upon conversion of the Company's Preferred Stock; and (G) shares of Series E Preferred Stock issued upon conversion of the Convertible Debentures; and (H) any Equity Securities issued pursuant to any equipment leasing arrangement or commercial bank financing approved by the Company's Board of Directors.

Excluded Securities. The rights of first refusal in favor of Buyer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 4 shall have no application to any of the following Equity Securities: (a) Up to an aggregate of 22,313,284 shares of common stock Common Stock (and/or including shares of Common Stock underlying options, warrants or other common stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued after the Original Issue Date (as defined in the Certificate of Incorporation) to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary of the Companysubsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Company's Board of Directors, Directors including the representative or representatives on the Board designated by BuyerSeries E Directors; (b) any Equity Securities stock issued or issuable pursuant to any rights, rights or agreements, options options, warrants or warrants convertible securities outstanding as of the date of this Agreement; and Equity Securities stock issued pursuant to any such rights, agreements, options rights or warrants agreements granted after the date of this Agreement; provided that , so long as the rights of first refusal established by this Section 1 and 4 were complied with or were inapplicable pursuant to any provision of this Section 2 (if still in effect) applied 4.6 with respect to the initial sale or grant by the Company of such rights, agreements, options rights or warrantsagreements including the Series E Directors; (c) shares of Common Stock issued in connection with any stock split, stock dividend or subdivision by the Company approved by the Board of Directors; (d) shares of Common Stock issued upon conversion of shares of the Company’s Series E Stock; (e) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act in an Initial Offering; and (f) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; , and any Equity Securities issued in connection with any stock splitstrategic transactions involving the Company and other entities, stock dividend including joint ventures, strategic alliances, manufacturing, marketing or recapitalization distribution arrangements, in each case, provided that such transaction is approved by the Company;Board of Directors including the Series E Directors.

Excluded Securities. The rights of first refusal in favor of Buyer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 5 shall have no application to any of the following Equity Securities: (a) 5.3.1 shares of common stock Series C Stock provided for in the Purchase Agreement; 5.3.2 Common Stock (and/or options, warrants or other common stock 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 of the Companysubsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by a majority of the Company's Board of Directors, including the representative or representatives on the Board designated by Buyer; (b) any Equity Securities 5.3.3 stock issued pursuant to any rights, agreementsrights or agreements outstanding as of the date of this Agreement, options or and warrants outstanding as of the date of this Agreement; and Equity Securities stock issued pursuant to any such rights, agreements, options rights or warrants agreements granted after the date of this Agreement; , provided that the rights of first refusal established by this Section 1 and Section 2 (if still in effect) 5 applied with respect to the initial sale or grant by the Company of such rights, rights or agreements, options or warrants; (c) 5.3.4 any Equity Securities issued for consideration other than cash pursuant to a the acquisition of another corporation by the Company by merger, consolidationpurchase of all or substantially all of the assets, acquisition or similar business combination; any Equity Securities other reorganization; 5.3.5 shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; 5.3.6 shares of Common Stock issued upon conversion of the Shares; 5.3.7 any Equity Securities issued in connection with an equipment purchase or leasing transaction or a revolving credit or term loan transaction where the principal purpose of such transaction is not to receive additional capital from the issuance of such Equity Securities; 5.3.8 any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; 5.3.9 shares of the Company's Common Stock or Preferred Stock or options or warrants for the purpose of such securities issued 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 issuance of shares therein, has been approved by two-thirds (2/3) of the authorized members of the Company's Board of Directors; 5.3.10 shares of Equity Securities issued in connection with the acquisition of a license, technology transfer or acquisition or similar transaction; provided that such license transaction, and the issuance of shares therein, have been approved by two-thirds (2/3) of the authorized members of the Company's Board of Directors; 5.3.11 shares of Equity Securities issued by the unanimous consent of the Board of Directors of the Company; and 5.3.12 shares of Equity Securities issued by amendment, waiver or extension of any securities issued prior to the First Closing, as such term is defined in the Purchase Agreement, or issued pursuant to clauses 5.3.1 through 5.3.11 hereof.

Excluded Securities. The rights of first refusal in favor of Buyer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 Article 4 shall have no application to any of the following Equity Securities: (a) shares of common stock (and/or 4.6.1 options, warrants or other common stock Common Stock purchase rights or Common Stock 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 of the Companysubsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Company's Board of Directors, including the representative or representatives on the Board designated by Buyer; (b) any Equity Securities 4.6.2 stock issued pursuant to any rights, agreementsoptions, options warrants or warrants agreements outstanding as of the date of this Agreement; and Equity Securities stock issued pursuant to any such rights, agreementsoptions, options warrants or warrants agreements granted after the date of this Agreement; , provided that the rights of first refusal established by this Section 1 and Section 2 (if still in effect) Article 4 applied with respect to the initial sale or grant by the Company of such rights, rights or agreements, options or warrants; (c) 4.6.3 any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; any Equity Securities ; 4.6.4 shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; 4.6.5 shares of Common Stock issued upon conversion of the Shares; 4.6.6 any Equity Securities issued pursuant to any equipment leasing arrangement or bank financing; 4.6.7 any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; and 4.6.8 shares of the Company's Common Stock or Preferred Stock issued 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 issuance of shares therein, has been approved by the Company's Board of Directors in accordance with the terms hereof.

Excluded Securities. The rights of first refusal in favor of Buyer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 Article V shall have no application to any of the following Equity Securities: (a) 5.6.1 shares of common stock Common Stock (and/or options, warrants or other common stock Common Stock purchase rights rights, and the Common Stock 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 the Predecessor or any subsidiary of either of the Companyforegoing, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Company's Board Board, up to an aggregate amount of Directors, including the representative or representatives on the Board designated by BuyerOne Million Four Hundred Eighty Seven Thousand Seven Hundred Fifty (1,487,750) shares of Common Stock; (b) any Equity Securities 5.6.2 stock issued pursuant to any rights, agreementsrights or agreements outstanding as of the date of this Agreement, options or and warrants outstanding as of the date of this Agreement; and Equity Securities stock issued pursuant to any such rights, agreements, options rights or warrants agreements granted after the date of this Agreement; , provided that the rights of first refusal established by this Section 1 and Section 2 (if still in effect) Article V applied with respect to the initial sale or grant by the Company of such rights, rights or agreements, options or warrants; (c) 5.6.3 up to 93,213 shares of Series B Preferred Stock issued upon exercise of the warrant to be issued as described in Exhibit F to the Purchase Agreement, the exercise price of which shall be not less than $1.70 per share; 5.6.4 any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; ; 5.6.5 any Equity Securities that are issued by the Company as part of an underwritten public offering referred to in Section 5.4 hereof; 5.6.6 shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; 5.6.7 shares of Common Stock issued upon conversion of the Preferred Stock; and 5.6.8 any Equity Securities issued pursuant to any equipment leasing arrangement, or bank financing.

Excluded Securities. The rights of first refusal in favor of Buyer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 Article IV shall have no application to any of the following Equity Securities: (a) shares of common stock Common Stock (and/or options, warrants or other common stock 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 of the Companysubsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Company's Board of Directors, including the representative or representatives on the Board designated by BuyerBoard; (b) any Equity Securities stock issued pursuant to any rights, agreementsrights or agreements outstanding as of the date of this Agreement, options or and warrants outstanding as of the date of this Agreement; and Equity Securities stock issued pursuant to any such rights, agreements, options rights or warrants agreements granted after the date of this Agreement; , provided that the rights of first refusal established by this Section 1 and Section 2 (if still in effect) Article IV applied with respect to the initial sale or grant by the Company of such rights, rights or agreements, options or warrants; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; ; (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; (f) shares of Common Stock issued upon conversion of the Preferred Stock or exercise of the Warrants; (g) any Equity Securities issued pursuant to any equipment leasing arrangement, or bank financing approved by the Board of Directors.

Excluded Securities. The rights right of first refusal in favor of Buyer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 10.1 shall have no application to any of the following Equity Securities: (a) shares of common stock Common Stock (and/or options, warrants or other common stock 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 of the Companysubsidiary, pursuant to stock purchase or stock option plans or other compensatory arrangements that are approved by the Company's Board of Directors, including the representative or representatives on the Board designated by Buyer; (b) any Equity Securities issued pursuant to any rights, agreements, options or warrants outstanding as of the date of this Agreement; , and Equity Securities stock issued pursuant to any such rights, agreements, options or warrants granted exercised after the date of this Agreement; provided that the rights of first refusal established by this Section 1 and Section 2 (if still in effect) applied with respect to the initial sale or grant by the Company of such rights, agreements, options or warrants; (c) any 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; combination whereby the stockholders of 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; (f) shares of Common Stock issued upon conversion of any Equity Securities; *CONFIDENTIAL TREATMENT REQUESTED

Excluded Securities. The rights of first refusal in favor of Buyer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 6 shall have no application to any of the following Equity Securities: (ai) shares of common stock (Common Stock and/or options, warrants or other common stock options to purchase rights issued pursuant to such options, warrants or other rights) Common Stock 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 of the Companysubsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Company's Board of Directors, including the representative or representatives on the Board designated by Buyer; (bii) any Equity Securities stock issued or issuable pursuant to any rights, rights or agreements, options options, warrants or warrants convertible securities outstanding as of the date of this AgreementAgreement (including the Warrants); and Equity Securities stock issued pursuant to any such rights, agreements, options rights or warrants agreements granted after the date of this Agreement; provided that , so long as the rights of first refusal established by this Section 1 and 6 were complied with, waived, or were inapplicable pursuant to any provision of this Section 2 (if still in effect) applied 6 with respect to the initial sale or grant by the Company of such rights, rights or agreements, options or warrants; (ciii) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; ; (iv) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (v) 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, or pursuant to any strategic license agreements and other partnering arrangements; or (vi) any Equity Securities issued in an underwritten public offering.

Excluded Securities. The rights of first refusal in favor of Buyer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 Article IV shall have no application to any of the following Equity Securities: (aA) shares of common stock Common Stock (and/or options, warrants or other common stock Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued to employees, officers or directors ofof , or consultants or advisors to the Company or any subsidiary of , the Company, pursuant to stock purchase or stock option plans or other compensation arrangements that are approved by the Company's Board of Directors, including Directors of the representative or representatives on the Board designated by BuyerCompany; (bB) any Equity Securities stock issued pursuant to any rights, agreements, options or warrants outstanding as of the date of this Agreement; and Equity Securities 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 1 and Section 2 (if still in effect) Article IV applied with respect to the initial sale or grant by the Company of such rights, agreements, options or warrants; (cC) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; ; (D) any Equity Securities that are issued by the Company as part of the Initial 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; (F) shares of Common Stock issued upon conversion of the Company's Preferred Stock; and (G) any Equity Securities issued pursuant to any equipment leasing arrangement or commercial bank financing approved by the Company's Board of Directors.

Excluded Securities. The rights of first refusal in favor of Buyer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 5 shall have no application to any of the following Equity Securities: (aA) shares of common stock Common Stock (and/or Common Stock options, warrants or other common stock 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 of the Companysubsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Company's Board of Directors, including the representative or representatives on the Board designated by Buyer; (bB) any Equity Securities issued pursuant to any rights, agreements, options rights or warrants 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, agreements, options rights or warrants agreements granted after the date of this Agreement; , provided that the rights of first refusal established by this Section 1 and Section 2 (if still in effect) 5 applied with respect to the initial sale or grant by the Company of such rights, rights or agreements, options or warrants; (cC) any Equity Securities that are issued pursuant to its Initial Offering; (D) any Equity Securities issued to persons who are non-affiliates of the Company for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; any Equity Securities ; (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 Preferred Stock; or (G) issuances of Equity Securities to non-affiliates of the Company in connection with equipment lease financing arrangements approved by the Board of Directors.

Excluded Securities. The rights of first refusal in favor of Buyer established by this Section 1 and the rights of first refusal in favor of the Common Holders established by Section 2 7 shall have no application to any of the following Equity Securities: (a) up to an aggregate amount of 1,500,000 shares of common stock Common Stock (and/or options, warrants or other common stock Common Stock purchase rights issued pursuant to such options, warrants or other 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 of the Companysubsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Company's Board of Directors, including the representative or representatives on the Board designated by Buyer;. (b) any Equity Securities stock issued pursuant to any rights, agreements, rights or agreements outstanding as of the date of this Agreement; options or and warrants outstanding as of the date of this Agreement; and Equity Securities stock issued pursuant to any such rights, agreements, options rights or warrants agreements granted after the date of this AgreementAgreements; provided that the rights of first refusal established by this Section 1 and Section 2 (if still in effect) 7 applied with respect to the initial sale or grant by the Company of such rights, rights or agreements, options or warrants; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; any Equity Securities 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; (e) shares of Common Stock issued upon conversion of the Series B or Series C Preferred Stock; (f) any Equity Securities that are issued to the public by the Company pursuant to a registration statement filed under the Securities Act; and (g) shares of C-3 Shares issued in connection with the Exchange Offer and/ or the Lexington Option.