Common use of Excluded Securities Clause in Contracts

Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities: (a) up to 5,084,877 shares of Common Stock and/or options, warrants or other Common Stock purchase rights, or such greater amount approved by the Board pursuant to Section 3.13, 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 any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; (b) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination approved by two-thirds of the members of the Board of Directors; (d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (e) any Equity Securities issued pursuant to any equipment 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, and Equity Securities issued in connection with that certain Note Purchase Agreement; (f) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; (g) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing, licensing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by two-thirds of the members of the Board of Directors; and (h) any Equity Securities issued by the Company pursuant to the terms of the Purchase Agreement.

Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities: (a) up to 5,084,877 shares Equity Securities issued upon conversion of Common Stock and/or options, warrants or other Common Stock purchase rights, or such greater amount approved by the Board pursuant to Section 3.13, and the Common Stock Preferred Stock; (b) Equity Securities issued pursuant to such optionsthe exercise of any Equity Securities outstanding as of the date hereof; (c) Equity Securities issued upon a stock split, warrants stock dividend or other rights issued or to be any subdivision of Equity Securities; (d) Equity Securities issued to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, 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 Preferred Stock; (be) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock Equity Securities issued pursuant to any such rights equipment loan or agreements granted after the date of this Agreementleasing arrangement, so long as the rights of first refusal established by this Section 4 were complied with, waived, real property leasing arrangement or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale debt financing from a bank or grant similar financial institution approved by the Company of such rights or agreementsBoard, including the representatives designated by the Preferred Stock; (cf) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition, strategic alliance, acquisition alliance or similar business combination approved by two-thirds of the members of Board, including the Board of Directors; (d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization representatives designated by the Company; (e) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors, and Equity Securities issued in connection with that certain Note Purchase Agreement; (f) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities ActPreferred Stock; (g) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing, licensing supply or distribution arrangements or arrangements, (ii) technology transfer or development arrangements; provided arrangements or (iii) any other arrangement involving corporate partners that are primarily for purposes other than raising capital, the issuance terms of shares therein has been which are approved by two-thirds of the members of Board, including the Board of Directorsrepresentatives designated by the Preferred Stock; (h) Equity Securities issued pursuant to a Qualified IPO (as defined in the Restated Certificate); and (hi) any Equity Securities issued by the Company pursuant to the terms Purchase Agreement and upon conversion of the Purchase Agreementsuch Equity Securities.

Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities: (a) up to 5,084,877 shares Securities issuable upon the conversion of Common Stock and/or options, warrants or other Common Stock purchase rightsany Shares, or such greater amount approved by as a dividend or distribution on the Board pursuant to Section 3.13, 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 any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of DirectorsShares; (b) stock Any Equity Securities issued or issuable pursuant to any rights or agreements, debentures, options, warrants or other convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination approved by two-thirds of the members of the Board of Directors; (d) any Any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by any subdivision of the Common Stock of the Company; (d) Shares of Common Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like) issued or issuable 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; (e) any 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, and Equity Securities issued in connection with that certain Note Purchase Agreement; (f) any Any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition, strategic alliance or similar business combination approved by the Board of Directors; and (g) Any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; (g) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing, licensing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by two-thirds of the members of the Board of Directors; and (h) any Equity Securities issued by the Company pursuant to the terms of the Purchase Agreement.

Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities: (a) up to 5,084,877 shares of Common Stock and/or options, warrants or other Common Stock purchase rights, or such greater amount approved by the Board pursuant to Section 3.13, rights and the Common Stock 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 to, the Company or any subsidiary, subsidiary pursuant to (x) the 2007 Stock Incentive Plan of the Company or (y) stock purchase or stock option plans or other arrangements that are approved by the Company’s Board of Directors (including at least a majority of the Preferred Directors); (b) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition, strategic alliance, acquisition alliance or similar business combination approved by two-thirds of the members of the Board of Directors (including at least a majority of the Preferred Directors); (d) any Equity Securities actually issued in connection with any stock split, stock dividend or recapitalization by the Company; (e) Equity Securities issued to third-party service providers in exchange for or as partial consideration for services rendered to the Company; provided that the issuance of such Equity Securities have been approved by the Company’s Board of Directors (including at least a majority of the Preferred Directors); (f) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors (including at least a majority of the Preferred Directors, and Equity Securities issued in connection with that certain Note Purchase Agreement); (fg) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; (gh) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including including, without limitation (i) joint ventures, manufacturing, marketing, licensing marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided provided, however, that the issuance of shares therein has been approved by two-thirds the Company’s Board of Directors (including at least a majority of the members of the Board of Preferred Directors); and (hi) any Equity Securities Securities, issued or issuable hereafter that are (i) approved by a majority of the Company’s Board of Directors (including at least a majority of the Preferred Directors), (ii) approved by the Company pursuant to the terms vote of the Purchase Agreementholders of at least fifty five percent (55%) of the Preferred Stock then outstanding, voting as a single class, (iii) approved by the vote of the holders of at least sixty percent (60%) of the Series D Stock then outstanding, voting as a separate class, and (iv) approved by the vote of the holders of at least a majority of the Series E Stock then outstanding, voting as a separate class. Notwithstanding the foregoing, if the Company shall issue any shares of Common Stock and/or options, warrants or other Common Stock purchase rights to employees, officers or directors of, or consultants or advisors to, the Company or any subsidiary in excess of the number of shares authorized under the 2007 Stock Incentive Plan as of the date hereof (as such number of shares may adjusted for any stock dividends, combinations, splits, recapitalizations and the like with respect to such shares after the date hereof) after the date hereof without the approval of the holders of at least fifty five percent (55%) of the shares of Preferred Stock then outstanding, then such shares shall be subject to a right of first refusal by the Major Investors in accordance with this Section 4.

Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities: (a) up to 5,084,877 the Shares and the shares of Common Stock and/or options, warrants or other issued upon the conversion of the Shares; (b) shares of Common Stock purchase rights, or such greater amount approved by Convertible Securities (as defined in the Board pursuant to Section 3.13, and the Common Stock issued pursuant to such options, warrants or other rights issued or to be Restated Charter) 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 (including the affirmative approval by a majority of the Preferred Directors); (bc) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities Convertible Securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (cd) any Equity Securities issued in connection with any stock split, stock dividend, stock distribution or recapitalization by the Company; (e) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition, strategic alliance, acquisition alliance or similar business combination approved by two-thirds the Board (including the affirmative approval by a majority of the members of the Board of Preferred Directors); (d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (ef) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, arrangement or debt financing from a bank or similar financial or lending institution approved by the Board (including the affirmative approval by a majority of the Preferred Directors, and ); (g) any Equity Securities issued in connection with that certain Note Purchase Agreementstrategic transactions (e.g. joint ventures, manufacturing, marketing, distribution, technology transfer or development arrangements) involving the Company and other entities approved by the Board (including the affirmative approval by a majority of the Preferred Directors); (fh) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act;; or (g) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing, licensing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by two-thirds of the members of the Board of Directors; and (h) any Equity Securities issued by the Company pursuant to the terms of Section 2.3 of the Purchase Agreement.

Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities (collectively, “Excluded Securities:”): (a) up to 5,084,877 shares of Common Stock (and/or options, warrants or other Common Stock purchase rights, or such greater amount approved by the Board pursuant to Section 3.13, 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 to, the Company or any subsidiarysubsidiary of the Company, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; (b) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination approved by two-thirds of the members of the Board of Directors; (dc) 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 Series E Preferred Stock or the Series F Preferred Stock; (e) any Equity Securities issued pursuant to in connection with (i) any equipment leasing, loan or leasing arrangement, real property leasing arrangement, or debt financing refinancing from a bank or similar financial or lending institution approved by the Board of Directors, Directors or (ii) any arrangement approved by the Board of Directors where the Company licenses intellectual property from any third party and no cash is contributed by such third party to the Company in exchange for the Equity Securities issued in connection with that certain Note Purchase AgreementSecurities; (f) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; (g) any Equity Securities issued to ▇▇▇▇▇▇ pursuant to Section 4.5, below, in connection with strategic transactions involving the Company and other entities, including a Non-Cash Transaction (i) joint ventures, manufacturing, marketing, licensing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by two-thirds of the members of the Board of Directorsas defined below); and (h) any Equity Securities issued by the Company pursuant to the terms recapitalization pursuant to Article IX of the Purchase AgreementSixth Amended and Restated Certificate of Incorporation of the Company.

Excluded Securities. The rights of first refusal offer established by this Section 4 shall have no application to any of the following Equity Securities: (a) up to 5,084,877 Any shares of Common Stock (and/or options, warrants warrants, convertible notes or other Common Stock purchase rights, or such greater amount approved by the Board pursuant to Section 3.13, and the Common Stock rights issued pursuant to such options, warrants warrants, convertible notes or other rights rights) as adjusted for any stock dividends, combinations, splits, recapitalizations and the like issued or to be issued after the date of this Agreement 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 DirectorsDirectors (including a representative designed by the holders of the Series A Preferred Stock or Series B Preferred Stock of the Company); (b) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination or strategic alliance approved by the Board of Directors (including a representative designated by the holders of the Series A Preferred Stock or Series B Preferred Stock of the Company); (c) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (d) the Conversion Shares; (e) any Equity Securities issued pursuant to any equipment leasing, loan arrangement or debt financing from a bank or similar financial or lending institution approved by the Board of Directors (including a representative designated by the holders of the Series A Preferred Stock or Series B Preferred Stock of the Company); (f) any Equity Securities issued to the Company's strategic corporate partners or key service providers, as 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 Common Stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination approved by two-thirds of the members of the Board of Directors; (d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (e) any Equity Securities issued pursuant to any equipment 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, and Equity Securities issued in connection with that certain Note Purchase Agreement; (f) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; (g) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing, licensing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by two-thirds of the members of the Board of Directors; and (h) any Equity Securities issued by the Company pursuant to the terms of the Purchase Agreement.

Excluded Securities. The rights of first refusal offer established by this Section 4 shall have no application to any of the following Equity Securities: (a) up to 5,084,877 shares of Common Stock and/or options, warrants or other Common Stock purchase rights, or such greater amount approved by the Board pursuant to Section 3.13, rights and the Common Stock 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 subsidiarySubsidiary, pursuant to (i) stock purchase or purchase, (ii) stock option plans or (iii) other arrangements that are approved by the Board (including the affirmative vote of at least two (2) of the Preferred Directors); (b) stock any Equity Securities issued or issuable pursuant to any rights or agreements, options, warrants warrants, debentures or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (c) any Equity Securities issued for consideration other than cash pursuant to a in connection with bona fide business acquisition of or by the Company, whether by merger, consolidation, acquisition, sale of assets, sale or exchange of stock, acquisition, strategic alliance, acquisition alliance or similar business combination approved by two-thirds the Board including the affirmative vote of at least two (2) of the members of the Board of Preferred Directors; (d) any Equity Securities issued in connection with any stock split, stock upon conversion of Preferred Stock or as a dividend or recapitalization by distribution on the CompanyPreferred Stock; (e) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, loan or credit arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board including the affirmative vote of at least two (2) of the Preferred Directors, and Equity Securities issued in connection with that certain Note Purchase Agreement; (f) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities ActAct or equivalent securities law of other jurisdiction; (g) any Equity Securities issued by the Company to strategic investors with the approval of the Board, including the affirmative vote of at least two (2) of the Preferred Directors; (h) any stock issued in connection with strategic transactions involving stock dividends, combinations, stock splits, recapitalizations and reclassification events and which are excluded from the Company and other entities, including definition of Additional Shares of Common Stock (i) joint ventures, manufacturing, marketing, licensing or distribution arrangements or (ii) technology transfer or development arrangements; provided that as defined in the issuance of shares therein has been approved by two-thirds of the members of the Board of DirectorsCharter); and (hi) any Equity Securities issued by the Company pursuant to the terms and conditions of the Purchase Agreement.

Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities: (a) up to 5,084,877 shares of Common Stock (and/or options, warrants or other Common Stock purchase rights, or such greater amount approved by the Board pursuant to Section 3.13, and the Common Stock rights 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 Restated 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; (b) stock issued upon the exercise or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as conversion of an Equity Security that is issued after the date of this Agreement; and stock PROVIDED that the Equity Security has been issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as in compliance with the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements;4. (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination approved by two-thirds of the members of the Board of Directorscombination; (d) any Equity Securities 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 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, and Equity Securities issued in connection with that certain Note Purchase Agreementinstitution; (fg) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act;; and (gh) any Equity Securities shares of the Company's Common Stock or Preferred Stock issued in connection with licensing or strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing, licensing marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided PROVIDED that such transactions and the issuance of shares therein has been approved by two-thirds at least five of the seven members of the Company's Board of Directors; and (h) any Equity Securities issued by the Company pursuant to the terms of the Purchase Agreement.

Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities: (a) up to 5,084,877 shares of Common Stock and/or options, warrants or other Common Stock purchase rights, or such greater amount approved by the Board pursuant to Section 3.13, and the Common Stock issued pursuant to such options, warrants or other rights issued or to be issued after the Original Issue Date (as defined in the Company's Restated Charter) to employees, officers or directors of, or consultants or advisors to to, the Company or any subsidiary, subsidiary pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; (b) stock any Equity Securities issued or issuable pursuant to any rights or agreements, agreements outstanding as of the date hereof or pursuant to the exercise of options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreementshereof; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination approved by two-thirds at least a majority of the members Directors who are not then employees of the Board of DirectorsCompany; (d) any Equity Securities issued in connection with any stock split, stock dividend dividend, combination or recapitalization by the Company; (e) any Equity Securities issued upon conversion of the Preferred Stock of the Company; (f) subject to Section 2.3 of the Series E Agreement, any Series E Preferred issued pursuant to the Series E Agreement; (g) any Equity Securities issued pursuant to any equipment or real estate leasing or loan or leasing arrangement, real property leasing arrangement, arrangement or debt financing from a bank or similar an equipment lessor, landlord, bank, financial or lending institution or similar entity approved by at least a majority of the Board Directors who are not then employees of Directors, the Company and Equity Securities issued in connection with that certain Note Purchase Agreementthe primary purpose of which is other than to obtain financing for the Company through the issuance of equity securities; (fh) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; (gi) any Equity Securities issued in connection with strategic transactions involving approved by a majority of the Company and other entitiesDirectors who are not then employees of the Company, including (i1) joint ventures, manufacturing, marketing, licensing marketing or distribution arrangements arrangements, or (ii2) technology license, transfer or research and development arrangements; provided that , or (3) any other transaction involving corporate partners the primary purpose of which is other than to obtain financing for the Company through the issuance of shares therein has been approved by two-thirds of the members of the Board of Directors; andequity securities; (hj) any Equity Securities issued pursuant to Section 3.12; (k) stock issued pursuant to any such rights granted or agreements entered into after the date of this Agreement so long as the rights of first refusal established by this Section 4 were complied with in connection with the initial sale or grant by the Company pursuant to the terms of the Purchase Agreementsuch rights or agreements.

Excluded Securities. The preemptive rights of first refusal established by this Section 4 Annex I shall have no application to any of the following Equity Securities: (a) up to 5,084,877 shares of Common Stock common stock and/or options, warrants or other Common Stock common stock purchase rights, or such greater amount approved by the Board pursuant to Section 3.13, rights and the Common Stock common stock 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, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of DirectorsBoard; (b) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Letter Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Letter Agreement, so long as the rights of first refusal established by this Section 4 Annex I were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 1.4 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 combination approved by two-thirds of the members of the Board of DirectorsBoard; (d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (e) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution the principal purpose of which is other than for the raising of capital through the sale of equity securities; provided that the issuance has been approved by the Board of Directors, and Equity Securities issued in connection with that certain Note Purchase Agreement;Board; and (f) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; (g) any Equity Securities issued in connection with strategic transactions involving the Company and other entitiesentities the principal purpose of which is other than for the raising of capital through the sale of equity securities, including including, without limitation (i) joint ventures, manufacturing, marketing, licensing marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by two-thirds of the members of the Board of Directors; and (h) any Equity Securities issued by the Company pursuant to the terms of the Purchase Agreement.or

Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities: (a) up to 5,084,877 shares of Common Stock and/or options, warrants or other Common Stock purchase rights, or such greater amount approved by the Board pursuant to Section 3.13, rights and the Common Stock 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 to, the Company or any subsidiary, subsidiary pursuant to (x) the 2007 Stock Incentive Plan of the Company or (y) stock purchase or stock option plans or other arrangements that are approved by the Company’s Board of Directors (including at least a majority of the Preferred Directors); (b) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition, strategic alliance, acquisition alliance or similar business combination approved by two-thirds of the members of the Board of Directors (including at least a majority of the Preferred Directors); (d) any Equity Securities actually issued in connection with any stock split, stock dividend or recapitalization by the Company; (e) Equity Securities issued to third-party service providers in exchange for or as partial consideration for services rendered to the Company; provided that the issuance of such Equity Securities have been approved by the Company’s Board of Directors (including at least a majority of the Preferred Directors); (f) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors (including at least a majority of the Preferred Directors, and Equity Securities issued in connection with that certain Note Purchase Agreement); (fg) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; (gh) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including including, without limitation (i) joint ventures, manufacturing, marketing, licensing marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided provided, however, that the issuance of shares therein has been approved by two-thirds the Company’s Board of Directors (including at least a majority of the members of the Board of Preferred Directors); and (hi) any Equity Securities Securities, issued or issuable hereafter that are (i) approved by a majority of the Company’s Board of Directors (including at least a majority of the Preferred Directors), (ii) approved by the Company pursuant to the terms vote of the Purchase Agreementholders of at least fifty five percent (55%) of the Preferred Stock then outstanding, voting as a single class, (iii) approved by the vote of the holders of at least sixty percent (60%) of the Series D Stock then outstanding, voting as a separate class, (iv) approved by the vote of the holders of at least a majority of the Series E Stock then outstanding, voting as a separate class, and (v) approved by the vote of the holders of at least sixty-five percent (65%) of the Series F Stock then outstanding, voting as a separate class. Notwithstanding the foregoing, if the Company shall issue any shares of Common Stock and/or options, warrants or other Common Stock purchase rights to employees, officers or directors of, or consultants or advisors to, the Company or any subsidiary in excess of the number of shares authorized under the 2007 Stock Incentive Plan as of the date hereof (as such number of shares may adjusted for any stock dividends, combinations, splits, recapitalizations and the like with respect to such shares after the date hereof) after the date hereof without the approval of the holders of at least fifty five percent (55%) of the shares of Preferred Stock then outstanding, then such shares shall be subject to a right of first refusal by the Major Investors in accordance with this Section 4.

Excluded Securities. The rights of first refusal offer established by this Section 4 shall have no application to any of the following Equity Securities: (a) up to 5,084,877 shares of Common Stock and/or options, warrants or other Common Stock purchase rights, or such greater amount approved by the Board pursuant to Section 3.13, rights and the Common Stock 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 subsidiarySubsidiary, pursuant to (i) stock purchase or purchase, (ii) stock option plans or (iii) other arrangements that are approved by the Board (including the affirmative vote of Directors;at least two (2) of the Preferred Directors); (b) stock any Equity Securities issued or issuable pursuant to any rights or agreements, options, warrants warrants, debentures or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements;Agreement; (c) any Equity Securities issued for consideration other than cash pursuant to a in connection with bona fide business acquisition of or by the Company, whether by merger, consolidation, acquisition, sale of assets, sale or exchange of stock, acquisition, strategic alliance, acquisition alliance or similar business combination approved by two-thirds the Board including the affirmative vote of at least two (2) of the members of the Board of Directors;Preferred Directors; (d) any Equity Securities issued in connection with any stock split, stock upon conversion of Preferred Stock or as a dividend or recapitalization by distribution on the Company;Preferred Stock; (e) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, loan or credit arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board including the affirmative vote of Directors, and Equity Securities issued in connection with that certain Note Purchase Agreement;at least two (2) of the Preferred Directors; (f) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act;Act or equivalent securities law of other jurisdiction; (g) any Equity Securities issued by the Company to strategic investors with the approval of the Board, including the affirmative vote of at least two (2) of the Preferred Directors; (h) any stock issued in connection with strategic transactions involving stock dividends, combinations, stock splits, recapitalizations and reclassification events and which are excluded from the Company definition of Additional Shares of Common Stock (as defined in the Charter); and other entities, including Agreement. (i) joint ventures, manufacturing, marketing, licensing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by two-thirds of the members of the Board of Directors; and (h) any Equity Securities issued by the Company pursuant to the terms and conditions of the Purchase Agreement.Purchase

Excluded Securities. The participation rights of first refusal established by set forth in this Section 4 shall have no application not apply to any of the following Equity Securities: (a) up to 5,084,877 shares of Common Stock and/or options, warrants or other Common Stock purchase rights, or such greater amount approved by the Board pursuant to Section 3.13, and the Common Stock issued pursuant to such or issuable upon conversion of any shares of the Preferred Stock; (b) [RESERVED]; (c) shares of the Common Stock, including options, warrants or other rights issued to purchase up to such number of shares of the Common Stock (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued, sold or to be issued granted to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, subsidiary pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; (b) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination approved by two-thirds of the members of the Board of DirectorsRose Capital; (d) any Equity Securities shares of the Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (e) any Equity Securities shares of the Common Stock or the Preferred Stock issued or issuable pursuant to any equipment loan the exercise of options, warrants or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by Convertible Securities outstanding as of the Board of Directors, and Equity Securities issued in connection with that certain Note Purchase Agreementdate hereof; (f) any Equity Securities that are shares of the Common Stock or Preferred Stock and/or options, warrants or other rights to purchase the Common Stock or the Preferred Stock issued by the Company or issuable for consideration other than cash pursuant to a registration statement filed under the Securities Act;merger, consolidation, acquisition, strategic alliance or similar business combination approved by Rose Capital; and (g) any Equity Securities equity securities issued or issuable in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing, licensing marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided provided, however, that the issuance of shares therein has been approved by two-thirds of the members of the Board of DirectorsBoard; and (h) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the terms of the Purchase AgreementSecurities Act.

Excluded Securities. The rights of first refusal established by this Section 4 9.3 shall have no application to any of the following Equity Securities: (ai) up to 5,084,877 shares of Common Stock and/or options, warrants or other Common Stock purchase rights, or such greater amount approved by the Board pursuant to Section 3.13, rights and the Common Stock 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, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board board of Directorsdirectors; (bii) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 9.3(D) were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 9.3(D) with respect to the initial sale or grant by the Company of such rights or agreements; (ciii) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition, strategic alliance, acquisition alliance or similar business combination approved by two-thirds the board of the members of the Board of Directorsdirectors; (div) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (ev) any Equity Securities issued pursuant to such options, warrants, or other rights 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 that are approved by the Board of Directors, and Equity Securities issued in connection with that certain Note Purchase AgreementBoard; (fvi) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act;relating to an IPO; and (gvii) any Equity Securities Common Stock issued in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing, licensing marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been such transaction is not primarily for equity financing purposes that are approved by two-thirds of the members of the Board of Directors; and (h) any Equity Securities issued by the Company pursuant to the terms of the Purchase AgreementBoard.

Excluded Securities. The rights of first refusal established by this Section 4 Article 8 shall have no application to any of the following Equity Securities: (a) up to 5,084,877 shares of Common Stock and/or options, warrants or other Common Stock purchase rights, or such greater amount approved by the Board pursuant to Section 3.13, and the Common Stock issued pursuant to such options, warrants or other rights Equity Securities 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; (b) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities Equity Securities outstanding as of the date of this Agreement; , and stock Equity Securities issued pursuant to any such rights or agreements Equity Securities granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 Article 8 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 8.5 with respect to the initial sale or grant by the Company of such rights or agreementsEquity Securities; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination approved by two-thirds of the members of the Board of Directorscombination, provided that such transaction is not primarily for capital raising purposes rather than strategic purposes; (d) any Equity Securities issued by the Company in connection with any stock dividends, split-ups, stock dividend recapitalizations, reclassifications, combinations or recapitalization by exchanges of shares, separations, reorganizations, liquidations, or the Companylike; (e) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors, and Equity Securities issued in connection with that certain Note Purchase Agreement; (f) any Equity Securities that are issued by the Company in a public offering pursuant to a registration statement filed under the Securities Act;; and (gf) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including including, without limitation (i) joint ventures, partnering, manufacturing, marketing, licensing marketing or distribution arrangements or (ii) technology licensing, intellectual property transfer or development arrangements; provided that the issuance of shares therein has been approved by two-thirds of the members of the Board of Directors; and (h) any Equity Securities issued by the Company pursuant to the terms of the Purchase Agreementsuch transaction is not substantially for equity financing purposes.

Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities: (a) up to 5,084,877 shares of Common Stock (and/or options, warrants or other Common Stock purchase rights, or such greater amount approved by the Board pursuant to Section 3.13, and the Common Stock rights 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; (b) stock issued or issuable pursuant to any rights or agreements, options, agreements outstanding as of the date of this Agreement and options and warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements;. (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination approved by two-thirds of the members of the Board of Directors, including the vote of the representatives designated to the Board of Directors by the Holders, if any; (d) any Equity Securities 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 or shares of Common Stock or Preferred Stock issued upon the exercise of the Warrants; (f) any Equity Securities issued pursuant to any equipment leasing or 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, and including the vote of the representatives designated to the Board of Directors by the Holders, if any; (g) any Equity Securities issued in connection with that certain Note Purchase Agreement;pursuant to any joint venture or strategic partnership approved by the Board of Directors, including the vote of the representatives designated to the Board of Directors by the Holders, if any; or (fh) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; (g) any Equity Securities issued Act in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing, licensing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by two-thirds of the members of the Board of Directors; and (h) any Equity Securities issued by the Company pursuant to the terms of the Purchase Agreementa Qualified Offering.

Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities: (a) up to 5,084,877 shares of Common Stock (and/or options, warrants or other Common Stock purchase rights, or such greater amount approved by the Board pursuant to Section 3.13, and the Common Stock rights issued pursuant to such options, warrants or other rights rights), as adjusted for any stock dividends, combinations, splits, recapitalizations and the like, issued or to be issued 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 Investors; (b) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as ; provided that the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 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, strategic alliance, acquisition or similar business combination approved by two-thirds of the members of the Board of Directors; (d) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the CompanyCompany affecting all such shares equally; (e) any Equity Securities issued pursuant to any equipment leasing or 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, and Equity Securities issued in connection with that certain Note Purchase Agreement; (f) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act;; and (g) any shares of the Company's Common Stock or other Equity Securities issued in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing, licensing marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that such strategic transactions and the issuance of shares therein therein, has been approved by two-thirds of the members of the Company's Board of Directors; and (h) any Equity Securities issued , including the representatives designated by the Company pursuant to the terms of the Purchase AgreementInvestors.

Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities: (a) up to 5,084,877 shares of Common Stock and/or or options, warrants or other Common Stock purchase rights, or such greater amount approved by the Board pursuant to Section 3.13, rights and the Common Stock issued pursuant to such options, warrants or other rights issued or to be issued after the Original Issue Date (as defined in the Restated Certificate) 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 DirectorsBoard; (b) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this AgreementAgreement Date; and stock issued pursuant to any such rights or agreements granted after the date of this AgreementAgreement Date, so long as the rights of first refusal established by this Section 4 were complied with, waived, with or were inapplicable pursuant to any provision of this Section 4.6 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, strategic alliance, acquisition or similar business combination approved by two-thirds the Board, including a majority of the members of the Board of Preferred Directors; (d) any Equity Securities 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 shares of Preferred Stock; (f) shares of Series A-3 Preferred issued pursuant to the Purchase Agreement; (g) 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 Board, including a majority of the Preferred Directors, and Equity Securities issued in connection with that certain Note Purchase Agreement; (fh) any Equity Securities that are issued by the Company pursuant to a registration statement filed under in the Securities Act;Initial Offering; or (gi) any Equity Securities equity securities issued in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing, licensing marketing or distribution arrangements or (ii) technology transfer transfer, research or development arrangements; provided that the issuance of shares therein has been approved by two-thirds the Board, including a majority of the members of the Board of Preferred Directors; and (h) any Equity Securities issued by the Company pursuant to the terms of the Purchase Agreement.

Excluded Securities. The rights defined term “New Securities” does not include shares of first refusal established by this Section 4 shall have no application to any of the following Equity SecuritiesCommon Stock issued or issuable: (a) upon conversion of shares of Series A Preferred; (b) to officers, directors or employees of, or consultants to, the Company pursuant to stock option or stock purchase plans (including, for example, restricted stock award agreements) on terms approved by the Board (including a majority of the Series A Directors) up to 5,084,877 an aggregate amount of 30,000,000 shares of Common Stock and/or (as adjusted for stock dividends, combinations, splits, recapitalizations and the like), including shares issued before the date of this Agreement; (c) upon exercise or conversion of options, warrants or other Common Stock purchase rights, or such greater amount approved by the Board pursuant to Section 3.13, 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 any subsidiary, pursuant to stock purchase or stock option plans or other arrangements convertible securities that are approved by the Board of Directors; (b) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Closing Date (as such term is defined in the Purchase Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination approved by two-thirds of the members of the Board of Directors); (d) any Equity Securities issued in connection with any pursuant to a stock split, stock dividend or similar recapitalization by the Company; (e) any Equity Securities issued as an antidilution adjustment to the Series A Conversion Price (as defined in the Restated Certificate) 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, and Equity Securities issued in connection with that certain Note Purchase AgreementRestated Certificate; (f) any Equity Securities that are issued by the Company pursuant to a registration statement filed under Qualified IPO (as defined in the Securities Act;Restated Certificate); and (g) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing, licensing vote or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance written consent of shares therein has been approved by two-thirds Preferred Holders holding a majority of the members of the Board of Directors; andSeries A Preferred held by all Preferred Holders; (h) any Equity Securities pursuant to a debt financing (including securities issued in consideration of guarantees of such financing), strategic transaction, joint venture or other similar business arrangement that is approved by the Board; (i) pursuant to an acquisition of another entity by the Company pursuant to by merger, purchase of all or substantially all of the terms stock or assets or other reorganization whereby the Company owns more than fifty percent (50%) of the voting power of such entity that is approved by the Board; (j) Series A Preferred sold under the Purchase Agreement; or (k) to financial institutions or lessors for commercial credit arrangements, equipment financings, commercial property lease transactions or similar transactions (including securities issued in consideration of guarantees of such financings or leases) that are approved by the Board.