Common use of Certain Issuances of Securities Clause in Contracts

Certain Issuances of Securities. (1) Unless the Company obtains the Stockholder Approval (as defined in the Certificate of Designations) or a waiver thereof from the Nasdaq, the Company will not issue any shares of Common Stock or shares of any other series of preferred stock or other securities convertible into, exchangeable for, or otherwise entitling the holder to acquire, shares of Common Stock which would be subject to the requirements of the Stockholder Approval Rule and which would be integrated with the sale of the Preferred Shares and issuance of the Warrants to the Buyer or the issuance of Common Shares upon conversion of the Preferred Shares or upon exercise of the Warrants for purposes of the Stockholder Approval Rule. (2) During the period from the date of this Agreement to the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) (A) any security (whether debt or equity) with conversion or exchange terms similar in nature to the conversion rights of the Preferred Stock, (B) any equity securities or securities convertible into, exchangeable for or otherwise entitling the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of such issuance (or below an average market price for a reasonable period prior to such issuance) or (C) any equity securities or securities which by their terms are convertible into, exchangeable for or otherwise entitle the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of conversion, exchange or other exercise thereof (or below an average market price for a reasonable period prior to such conversion, exchange or other exercise) (collectively, "Equity Securities"); PROVIDED, HOWEVER, that nothing in this Section 4(i)(2) shall prohibit the Company from issuing securities (v) which are equity (not debt) securities issued in a single transaction for aggregate gross consideration of up to $5,000,000 and which (i) are purchased for or are convertible into or are exercisable for shares of Common Stock at a fixed price not more than 20% below the market price of the Common Stock on the date of issuance (or below an average market price for a reasonable period prior to such issuance), and (ii) are not subject to any future adjustment related to changes in the market price of the Common Stock pursuant to which additional shares or other securities may be issued, cash payments become due, or the conversion or exercise price of any convertible security may be reduced, other than pursuant to customary antidilution provisions for stock splits and similar events, (w) pursuant to compensation plans or arrangements for employees, directors, officers, advisers or consultants of the Company and in accordance with the terms of such plans as in effect as of the date of this Agreement or as thereafter approved by the Board of Directors of the Company, (x) upon exercise of conversion, exchange, purchase or similar rights issued, granted or given by the Company and outstanding as of the date of this Agreement and disclosed in the SEC Reports or this Agreement, (y) pursuant to a public offering underwritten on a firm commitment basis registered under the 1933 Act or (z) as part of a transaction involving a strategic alliance, acquisition of stock or assets, merger, collaboration, joint venture, partnership or other similar arrangement of the Company with another corporation, partnership or other business entity which is engaged in a business similar to or related to the business of the Company, so long as in the case of this clause (z) the Board of Directors by resolution duly adopted (and a copy of which shall be furnished to the Buyer promptly after adoption) determines that such issuance is fair to the holders of each class and series of capital stock of the Company and to the Buyer in respect of its equity interest in the Company that is represented by the Preferred Shares and the Warrants. (3) Subject to the restrictions in Sections 4(i)(1) and 4(i)(2), during the period from the date of execution and delivery of this Agreement to the date which is 180 days after the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) any Equity Securities without giving the Buyer the first right to acquire the Equity Securities on the same terms as the Equity Securities are to be offered to other investors; PROVIDED, HOWEVER, that this Section 4(i)(3) shall not apply to the offer or sale of Equity Securities by the Company in the transactions, and subject to the conditions, set forth in clauses (v), (w), (x), (y) and (z) of the proviso to the first sentence of Section 4(i)(2) above. The Company shall give notice to the Buyer of the detailed terms of the Equity Securities proposed to be issued and, promptly after being requested by the Buyer, such other information as reasonably requested by the Buyer. Such request by the Buyer shall be made not later than five Business Days after receipt of such notice from the Company. The Buyer may, by notice to the Company, exercise such right of first refusal at any time until the later of (x) ten Business Days after such notice from the Company to the Buyer and (y) five Business Days after the Company provides such additional information as shall have been requested by the Buyer.

Certain Issuances of Securities. (1) Unless If the transactions contemplated by this Agreement are subject to the Nasdaq Stockholder Approval Rule, unless the Company obtains the Stockholder Approval (as defined in the Certificate of Designations) or a waiver thereof from the Nasdaq, the Company will not issue any shares of Common Stock or shares of any other series of preferred stock or other securities convertible into, exchangeable for, for or otherwise entitling the holder to acquire, acquire shares of Common Stock which would be subject to the requirements of the Nasdaq Stockholder Approval Rule (or any successor or replacement provision thereof) and which would be integrated with the sale of the Series G Preferred Shares and issuance of the Warrants to the Buyer or the issuance of Common Shares upon conversion of the Preferred Shares or upon exercise of the Warrants exchange thereof for purposes of the Nasdaq Stockholder Approval Rule. Rule (2) During the period from the date of this Agreement or any successor, replacement or other similar provision applicable to the later Company). As used herein, "Stockholder Approval" means the approval by a majority of the votes cast by the holders of shares of Common Stock (iin person or by proxy) at a meeting of the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, stockholders of the Company shall not offer(duly convened at which a quorum was present), sellor a written consent of holders of shares of Common Stock entitled to such number of votes given without a meeting, contract to sell or issue (or engage any person to assist of the issuance by the Company in taking any such action) (A) any security (whether debt of 20% or equity) with conversion or exchange terms similar in nature to the conversion rights of the Preferred Stock, (B) any equity securities or securities convertible into, exchangeable for or otherwise entitling the holder to acquire, any Common Stock at a price below the market price more of the Common Stock on of the date Company for less than the greater of the book or market value of such issuance (or below an average market price for a reasonable period prior to such issuance) or (C) any equity securities or securities which by their terms are convertible into, exchangeable for or otherwise entitle the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of conversion, conversion or exchange or other exercise thereof (or below an average market price for a reasonable period prior to such conversion, exchange or other exercise) (collectively, "Equity Securities"); PROVIDED, HOWEVER, that nothing in this Section 4(i)(2) shall prohibit the Company from issuing securities (v) which are equity (not debt) securities issued in a single transaction for aggregate gross consideration of up to $5,000,000 and which (i) are purchased for or are convertible into or are exercisable for shares of Common Stock at a fixed price not more than 20% below the market price of the Common Stock on Series G Preferred Stock, as and to the date of issuance (or below an average market price for a reasonable period prior to such issuance), and (ii) are not subject to any future adjustment related to changes in extent required under the market price of the Common Stock pursuant to which additional shares or other securities may be issued, cash payments become due, or the conversion or exercise price of any convertible security may be reduced, other than pursuant to customary antidilution provisions for stock splits and similar events, (w) pursuant to compensation plans or arrangements for employees, directors, officers, advisers or consultants of the Company and in accordance with the terms of such plans Nasdaq Stockholder Approval Rule as in effect as of the date of this Agreement from time to time or as thereafter approved by the Board of Directors of the Companyany successor, (x) upon exercise of conversion, exchange, purchase or similar rights issued, granted or given by the Company and outstanding as of the date of this Agreement and disclosed in the SEC Reports or this Agreement, (y) pursuant to a public offering underwritten on a firm commitment basis registered under the 1933 Act or (z) as part of a transaction involving a strategic alliance, acquisition of stock or assets, merger, collaboration, joint venture, partnership replacement or other similar arrangement of the Company with another corporation, partnership or other business entity which is engaged in a business similar to or related to the business of the Company, so long as in the case of this clause (z) the Board of Directors by resolution duly adopted (and a copy of which shall be furnished to the Buyer promptly after adoption) determines that such issuance is fair to the holders of each class and series of capital stock of the Company and to the Buyer in respect of its equity interest in the Company that is represented by the Preferred Shares and the Warrants. (3) Subject to the restrictions in Sections 4(i)(1) and 4(i)(2), during the period from the date of execution and delivery of this Agreement to the date which is 180 days after the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) any Equity Securities without giving the Buyer the first right to acquire the Equity Securities on the same terms as the Equity Securities are to be offered to other investors; PROVIDED, HOWEVER, that this Section 4(i)(3) shall not apply to the offer or sale of Equity Securities by the Company in the transactions, and subject to the conditions, set forth in clauses (v), (w), (x), (y) and (z) of the proviso to the first sentence of Section 4(i)(2) above. The Company shall give notice to the Buyer of the detailed terms of the Equity Securities proposed to be issued and, promptly after being requested by the Buyer, such other information as reasonably requested by the Buyer. Such request by the Buyer shall be made not later than five Business Days after receipt of such notice from the Company. The Buyer may, by notice provision applicable to the Company, exercise such right of first refusal at any time until the later of (x) ten Business Days after such notice from the Company to the Buyer and (y) five Business Days after the Company provides such additional information as shall have been requested by the Buyer.

Certain Issuances of Securities. (1) Unless If the transactions contemplated by this Agreement are subject to the Nasdaq or NNM rules requiring shareholder approval of certain transactions (the "Nasdaq Shareholder Approval Rules") then unless the Company obtains the Stockholder Shareholder Approval (as defined in the Certificate Statement of DesignationsRights) or a waiver thereof from the NasdaqNasdaq or NNM, as applicable, the Company will not issue any shares of Common Stock or shares of any other series of preferred stock or other securities convertible into, exchangeable for, for or otherwise entitling the holder to acquire, acquire shares of Common Stock which issuance would be subject to the requirements of the Stockholder Nasdaq Shareholder Approval Rule Rules (or any successor or replacement provision thereof) and which would be integrated with the sale of the Preferred Shares and issuance of the Warrants to the Buyer or the issuance of Common Shares upon conversion of the Preferred Shares thereof or upon exercise of the Warrants for purposes of the Stockholder Nasdaq Shareholder Approval RuleRules (or any successor or replacement provision thereof). (2) During the period from the date of this Agreement to the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, the The Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) (A) any security (whether debt or equity) with conversion or exchange terms similar in nature to the conversion rights of the Preferred Stock, (B) any equity securities or securities convertible into, exchangeable for or otherwise entitling the holder to acquire, any Common Stock (collectively, "Equity Securities") at a price below the market price of the Common Stock on during the period from the Closing Date to the date of such issuance (or below an average market price on which the Registration Statement shall have been effective with the SEC for a reasonable period prior to such issuance) or (C) any equity securities or securities which by their terms are convertible into60 consecutive days; provided, exchangeable for or otherwise entitle the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of conversion, exchange or other exercise thereof (or below an average market price for a reasonable period prior to such conversion, exchange or other exercise) (collectively, "Equity Securities"); PROVIDED, HOWEVERhowever, that nothing in this Section 4(i)(2) shall prohibit the Company from issuing securities (v) which are equity (not debt) securities issued in a single transaction for aggregate gross consideration of up to $5,000,000 and which (i) are purchased for or are convertible into or are exercisable for shares of Common Stock at a fixed price not more than 20% below the market price of the Common Stock on the date of issuance (or below an average market price for a reasonable period prior to such issuance), and (ii) are not subject to any future adjustment related to changes in the market price of the Common Stock pursuant to which additional shares or other securities may be issued, cash payments become due, or the conversion or exercise price of any convertible security may be reduced, other than pursuant to customary antidilution provisions for stock splits and similar events, (wx) pursuant to compensation plans or arrangements for employees, directors, officers, advisers or consultants of the Company and in accordance with the terms of such plans as in effect as of the date of this Agreement or as thereafter approved by the Board of Directors of the Company, (xy) upon exercise of conversion, exchange, purchase or similar rights issued, granted or given by the Company and outstanding as of the date of this Agreement and disclosed in the SEC Reports or this Agreement, (y) pursuant to a public offering underwritten on a firm commitment basis registered under the 1933 Act or (z) as part exercise of a transaction involving a strategic alliance, acquisition of stock or assets, merger, collaboration, joint venture, partnership or other similar arrangement of the Company with another corporation, partnership or other business entity which is engaged in a business similar to or related to the business of the Company, so long as in the case of this clause (z) the Board of Directors by resolution duly adopted (and a copy of which shall be furnished to the Buyer promptly after adoption) determines that such issuance is fair to the holders of each class and series of capital stock of the Company and to the Buyer in respect of its equity interest in the Company that is represented by the Preferred Shares and the Warrants. (3) Subject to the restrictions in Sections 4(i)(1) and 4(i)(2), during the period from the date of execution and delivery of this Agreement to the date which is 180 days after the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) any Equity Securities without giving the Buyer the first right to acquire the Equity Securities on the same terms as the Equity Securities are to be offered to other investors; PROVIDED, HOWEVER, that this Section 4(i)(3) shall not apply to the offer or sale of Equity Securities by the Company in the transactions, and subject to the conditions, set forth in clauses (v), (w), (x), (y) and (z) of the proviso to the first sentence of Section 4(i)(2) above. The Company shall give notice to the Buyer of the detailed terms of the Equity Securities proposed to be issued and, promptly after being requested by the Buyer, such other information as reasonably requested by the Buyer. Such request by the Buyer shall be made not later than five Business Days after receipt of such notice from the Company. The Buyer may, by notice to the Company, exercise such right of first refusal at any time until the later of (x) ten Business Days after such notice from the Company to the Buyer and (y) five Business Days after the Company provides such additional information as shall have been requested by the Buyer.

Certain Issuances of Securities. (1) Unless the Company obtains the Stockholder Approval (as defined in the Certificate of DesignationsDesignation) or a waiver thereof from the Nasdaq, the Company will not issue any shares of Common Stock or shares of any other series of preferred stock or other securities convertible into, exchangeable for, for or otherwise entitling the holder to acquire, acquire shares of Common Stock which would be subject to the requirements of Rule 4460(i) of the Stockholder Approval Rule Nasdaq (or any successor or replacement provision thereof) and which would be integrated with the sale of the Preferred Shares and issuance of the Warrants to the Buyer or the issuance of Common Shares upon conversion of the Preferred Shares thereof or upon exercise of the Warrants Warrant for purposes of Rule 4460(i) of the Stockholder Approval RuleNasdaq (or any successor or replacement provision thereof). (2) During the period from the date of this Agreement to the later of (i) the date which is one year after the Closing Date and (ii) to the date on which the Registration Statement (as defined in the Registration Rights Agreement) shall have been effective with the SEC for 270 120 consecutive days, neither the Company nor any affiliate of the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) (A) any security (whether debt or equity) with conversion or exchange terms similar in nature to the conversion rights of the Preferred Stock, (B) any equity securities or securities convertible into, exchangeable for or otherwise entitling the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of such issuance (or below an average market price for a reasonable period prior to such issuance) or (C) any equity securities or securities which by their terms are convertible into, exchangeable for or otherwise entitle the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of conversion, exchange or other exercise thereof (or below an average market price for a reasonable period prior to such conversion, exchange or other exercise) (collectively, "Equity Securities"); PROVIDED, HOWEVER, that nothing in this Section 4(i)(2) shall prohibit the Company from issuing securities (v) which are equity (not debt) securities issued in a single transaction for aggregate gross consideration of up to $5,000,000 and which (i) are purchased for or are convertible into or are exercisable for shares of Common Stock at a fixed price not more than 20% below the market price of the Common Stock on the date of issuance (or below an average market price for a reasonable period prior to such issuance), and (ii) are not subject to any future adjustment related to changes in the market price of the Common Stock pursuant to which additional shares or other securities may be issued, cash payments become due, or the conversion or exercise price of any convertible security may be reduced, other than pursuant to customary antidilution provisions for stock splits and similar events, (w) pursuant to compensation plans or arrangements for employees, directors, officers, advisers or consultants of the Company and in accordance with the terms of such plans as in effect as of the date of this Agreement or as thereafter approved by the Board of Directors of the Company, (x) upon exercise of conversion, exchange, purchase or similar rights issued, granted or given by the Company and outstanding as of the date of this Agreement and disclosed in the SEC Reports or this Agreement, (y) pursuant to a public offering underwritten on a firm commitment basis registered under the 1933 Act or (z) as part of a transaction involving a strategic alliance, acquisition of stock or assets, merger, collaboration, joint venture, partnership or other similar arrangement of the Company with another corporation, partnership or other business entity which is engaged in a business similar to or related to the business of the Company, so long as in the case of this clause (z) the Board of Directors by resolution duly adopted (and a copy of which shall be furnished to the Buyer promptly after adoption) determines that such issuance is fair to the holders of each class and series of capital stock of the Company and to the Buyer in respect of its equity interest in the Company that is represented by the Preferred Shares and the Warrants. (3) Subject to the restrictions in Sections 4(i)(1) and 4(i)(2), during the period from the date of execution and delivery of this Agreement to the date which is 180 days after the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) any Equity equity securities or securities convertible into, exchangeable for or otherwise entitling the holder to acquire any Common Stock (except for securities issued by the Company in connection with an acquisition, joint venture or corporate partnering arrangement) at a price below the Market Price (as that term is defined in the Certificate of Designation) of the Common Stock on the date of such issuance or acquisition ("Discounted Securities"). (3) Subject to the restrictions in Section 4(h)(1) above, during the period from the Closing Date to the date which is one year after the Closing Date (as hereinafter defined), neither the Company nor any affiliate of the Company shall offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) any Discounted Securities without giving the Buyer the first right to acquire all or any part of the Equity Discounted Securities on the same terms as at which the Equity Discounted Securities are to be offered to other investors; PROVIDED, HOWEVER, that this Section 4(i)(3) shall not apply to the offer or sale of Equity Securities by the Company in the transactions, and subject to the conditions, set forth in clauses (v), (w), (x), (y) and (z) of the proviso to the first sentence of Section 4(i)(2) above. The Company shall give notice to the Buyer of the detailed terms of the Equity Discounted Securities proposed to be issued and, promptly after being requested by the Buyer, and such other information as reasonably requested by the Buyer. Such request by the Buyer shall be made not later than five Business Days within three trading days after receipt of such notice from the Companynotice. The Buyer may, may by notice to the Company, Company exercise such right of first refusal at any time until the later of (x) ten Business Days (10) trading days after such notice from the Company to the Buyer and (y) five Business Days two (2) trading days after the Company provides such additional information as shall have timely been requested by the Buyer.. Any proposed sale of securities on terms and conditions different from those offered to the Buyer, as well as any subsequent proposed sale of any such additional securities by the Company, shall again be subject to the first refusal rights of the Buyer and shall require compliance by the Company with the procedures described in this Agreement. The Company further covenants and agrees to provide the Buyer with prompt notice (in any event not later than

Certain Issuances of Securities. (1) Unless the Company obtains the Stockholder Approval (as defined in the Certificate of Designations) or a waiver thereof from the Nasdaq, the Company will not issue any shares of Common Stock or shares of any other series of preferred stock or other securities convertible into, exchangeable for, or otherwise entitling the holder to acquire, shares of Common Stock which would be subject to the requirements of the Stockholder Approval Rule and which would be integrated with the sale of the Preferred Shares and issuance of the Warrants to the Buyer or the issuance of Common Shares upon conversion of the Preferred Shares or Dividend Shares or upon exercise of the Warrants for purposes of the Stockholder Approval Rule. (2) During the period from the date of this Agreement to the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with (as defined in the SEC for 270 consecutive days, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action)Registration Rights Agreement) shall (A) any security (whether debt or equity) with conversion or exchange terms similar in nature to the conversion rights of the Preferred Stock, Stock or (B) any equity securities or securities convertible into, exchangeable for or otherwise entitling the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of such issuance (or below an average market price for a reasonable period prior to such issuance) or (C) any equity securities or securities which by their terms are convertible into, exchangeable for or otherwise entitle the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of conversion, exchange or other exercise thereof (or below an average market price for a reasonable period prior to such conversion, exchange or other exercise) (collectively, "Equity Securities"); PROVIDED, HOWEVER, that nothing in this Section 4(i)(2) shall prohibit the Company from issuing securities (v) which are equity (not debt) securities issued in a single transaction for aggregate gross consideration of up to $5,000,000 and which (i) are purchased for or are convertible into or are exercisable for shares of Common Stock at a fixed price not more than 20% below the market price of the Common Stock on the date of issuance (or below an average market price for a reasonable period prior to such issuance), and (ii) are not subject to any future adjustment related to changes in the market price of the Common Stock pursuant to which additional shares or other securities may be issued, cash payments become due, or the conversion or exercise price of any convertible security may be reduced, other than pursuant to customary antidilution provisions for stock splits and similar events, (w) pursuant to compensation plans or arrangements for employees, directors, officers, advisers or consultants of the Company and in accordance with the terms of such plans as in effect as of the date of this Agreement or as thereafter approved by the Board of Directors of the CompanyAgreement, (x) upon exercise of conversion, exchange, purchase or similar rights issued, granted or given by the Company and outstanding as of the date of this Agreement and disclosed in the SEC Reports or this Agreement, (y) pursuant to a public offering underwritten on a firm commitment basis registered under the 1933 Act or (z) as part of a transaction involving a strategic alliance, acquisition of stock or assets, merger, collaboration, joint venture, partnership or other similar arrangement of the Company with another corporation, partnership or other business entity which is engaged in a business similar to or related to the business of the Company, so long as in the case of this clause (z) the Board of Directors by resolution duly adopted (and a copy of which shall be furnished to the Buyer promptly after adoption) determines that such issuance is fair to the holders of each class and series of capital stock of the Company and to the Buyer in respect of its equity interest in the Company that is represented by the Preferred Shares Shares, the Dividend Shares, if any, and the Warrants. (3) Subject to the restrictions in Sections Section 4(i)(1) and 4(i)(2), during the period from the date of execution and delivery of this Agreement to the date which is 180 days after the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive daysDate, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) any Equity Securities without giving the Buyer the first right to acquire the Equity Securities on the same terms as the Equity Securities are to be offered to other investors; PROVIDED, HOWEVER, that this Section 4(i)(3) shall not apply to the offer or sale of Equity Securities by the Company in the transactions, and subject to the conditions, set forth in clauses (v), (w), (x), (y) and (z) of the proviso to the first sentence of Section 4(i)(2) above. The Company shall give notice to the Buyer of the detailed terms of the Equity Securities proposed to be issued and, promptly after being requested by the Buyer, such other information as reasonably requested by the Buyer. Such request by the Buyer shall be made not later than five Business Days after receipt of such notice from the Company. The Buyer may, by notice to the Company, exercise such right of first refusal at any time until the later of (x) ten 15 Business Days after such notice from the Company to the Buyer and (y) five Business Days after the Company provides such additional information as shall have been requested by the Buyer.

Certain Issuances of Securities. (1) Unless If the transactions contemplated by this Agreement are subject to the Nasdaq or NNM rules requiring shareholder approval of certain transactions (the "Nasdaq Shareholder Approval Rules") then unless the Company obtains the Stockholder Shareholder Approval (as defined in the Certificate Statement of DesignationsRights) or a waiver thereof from the NasdaqNasdaq or NNM, as applicable, the Company will not issue any shares of Common Stock or shares of any other series of preferred stock or other securities convertible into, exchangeable for, for or otherwise entitling the holder to acquire, acquire shares of Common Stock which issuance would be subject to the requirements of the Stockholder Nasdaq Shareholder Approval Rule Rules (or any successor or replacement provision thereof) and which would be integrated with the sale of the Preferred Shares and issuance of the Warrants to the Buyer or the issuance of Common Shares upon conversion of the Preferred Shares or upon exercise of the Warrants thereof for purposes of the Stockholder Nasdaq Shareholder Approval RuleRules (or any successor or replacement provision thereof). (2) During the period from the date of this Agreement to the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, the The Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) (A) any security (whether debt or equity) with conversion or exchange terms similar in nature to the conversion rights of the Preferred Stock, (B) any equity securities or securities convertible into, exchangeable for or otherwise entitling the holder to acquire, any Common Stock (collectively, "Equity Securities") at a price below the market price of the Common Stock on during the period from the Closing Date to the date of such issuance (or below an average market price on which the Registration Statement shall have been effective with the SEC for a reasonable period prior to such issuance) or (C) any equity securities or securities which by their terms are convertible into60 consecutive days; provided, exchangeable for or otherwise entitle the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of conversion, exchange or other exercise thereof (or below an average market price for a reasonable period prior to such conversion, exchange or other exercise) (collectively, "Equity Securities"); PROVIDED, HOWEVERhowever, that nothing in this Section 4(i)(2) shall prohibit the Company from issuing securities (v) which are equity (not debt) securities issued in a single transaction for aggregate gross consideration of up to $5,000,000 and which (i) are purchased for or are convertible into or are exercisable for shares of Common Stock at a fixed price not more than 20% below the market price of the Common Stock on the date of issuance (or below an average market price for a reasonable period prior to such issuance), and (ii) are not subject to any future adjustment related to changes in the market price of the Common Stock pursuant to which additional shares or other securities may be issued, cash payments become due, or the conversion or exercise price of any convertible security may be reduced, other than pursuant to customary antidilution provisions for stock splits and similar events, (wx) pursuant to compensation plans or arrangements for employees, directors, officers, advisers or consultants of the Company and in accordance with the terms of such plans as in effect as of the date of this Agreement or as thereafter approved by the Board of Directors of the Company, (xy) upon exercise of conversion, exchange, purchase or similar rights issued, granted or given by the Company and outstanding as of the date of this Agreement and disclosed in the SEC Reports or this Agreement, (y) pursuant to a public offering underwritten on a firm commitment basis registered under the 1933 Act or (z) as part of a transaction involving a strategic alliance, acquisition of stock or assets, merger, collaboration, joint venture, partnership or other similar arrangement of the Company with another corporation, partnership or other business entity which is engaged in a business similar to or related to the business of the Company, so long as in the case of this clause (z) the Board of Directors by resolution duly adopted (and a copy of which shall be furnished to the Buyer promptly after adoption) determines that such issuance is fair to the holders of each class and series of capital stock of the Company and to the Buyer in respect of its equity interest in the Company that is represented by the Preferred Shares and the Warrants. (3) Subject to the restrictions in Sections 4(i)(1) and 4(i)(2), during the period from the date of execution and delivery of this Agreement to the date which is 180 days after the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) any Equity Securities without giving the Buyer the first right to acquire the Equity Securities on the same terms as the Equity Securities are to be offered to other investors; PROVIDED, HOWEVER, that this Section 4(i)(3) shall not apply to the offer or sale of Equity Securities by the Company in the transactions, and subject to the conditions, set forth in clauses (v), (w), (x), (y) and (z) of the proviso to the first sentence of Section 4(i)(2) above. The Company shall give notice to the Buyer of the detailed terms of the Equity Securities proposed to be issued and, promptly after being requested by the Buyer, such other information as reasonably requested by the Buyer. Such request by the Buyer shall be made not later than five Business Days after receipt of such notice from the Company. The Buyer may, by notice to the Company, exercise such right of first refusal at any time until the later of (x) ten Business Days after such notice from the Company to the Buyer and (y) five Business Days after the Company provides such additional information as shall have been requested by the Buyer.

Certain Issuances of Securities. (1) Unless the Company obtains the Stockholder Approval (as defined in the Certificate Articles of DesignationsAmendment) or a waiver thereof from the Nasdaq, the Company will not issue any shares of Common Stock or shares of any other series of preferred stock or other securities convertible into, exchangeable for, or otherwise entitling the holder to acquire, shares of Common Stock which would be subject to the requirements of Rule 4460(i) of Nasdaq (or any successor, replacement, or similar provision thereof or of any other market on which the Stockholder Approval Rule Common Stock is listed for trading) and which would be integrated with the sale of the Preferred Shares and issuance of the Warrants to the Buyer or the issuance of Common Shares upon conversion of the Preferred Shares or upon Dividend Shares or exercise of the Warrants for purposes of Rule 4460(i) of Nasdaq (or any successor, replacement or similar provision thereof or of any other market on which the Stockholder Approval RuleCommon Stock is listed for trading). (2) During the period from the date of this Agreement to the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement (as defined in the Registration Rights Agreement) shall have been effective with the SEC for 270 180 consecutive days, the Company shall not not, without the prior written consent of the Buyer, offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) (A) any security (whether debt or equity) with conversion or exchange terms similar in nature to the conversion rights of the Preferred Stock, Stock or (B) any equity securities or securities convertible into, exchangeable for or otherwise entitling the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of such issuance (or below an average market price for a reasonable period prior to such issuance) or (C) any equity securities or securities which by their terms are convertible into, exchangeable for or otherwise entitle the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of conversion, exchange or other exercise thereof (or below an average market price for a reasonable period prior to such conversion, exchange or other exercise) (collectively, "Equity Discounted Securities"); PROVIDEDprovided, HOWEVERhowever, that nothing in this Section 4(i)(2) shall prohibit the Company from issuing securities (v) which are equity (not debt) securities issued in a single transaction for aggregate gross consideration of up to $5,000,000 and which (i) are purchased for or are convertible into or are exercisable for shares of Common Stock at a fixed price not more than 20% below the market price of the Common Stock on the date of issuance (or below an average market price for a reasonable period prior to such issuance), and (ii) are not subject to any future adjustment related to changes in the market price of the Common Stock pursuant to which additional shares or other securities may be issued, cash payments become due, or the conversion or exercise price of any convertible security may be reduced, other than pursuant to customary antidilution provisions for stock splits and similar events, (w) pursuant to compensation plans or arrangements for employees, directors, officers, advisers or consultants of the Company and in accordance with the terms of such plans as in effect as of the date of this Agreement or as thereafter approved by the Board of Directors of the CompanyAgreement, (x) upon exercise of conversion, exchange, purchase or similar rights issued, granted or given by the Company and outstanding as of the date of this Agreement and disclosed in the SEC Reports or this Agreement, (y) pursuant to a public offering underwritten on a firm commitment basis registered under the 1933 Act or (z) as part of a transaction involving a strategic alliance, acquisition of stock or assets, merger, collaboration, joint venture, partnership or other similar arrangement of the Company with another corporation, partnership or other business entity which is engaged in a business similar to or related to the business of the Company, so long as in the case of this clause (z) the Board of Directors by resolution duly adopted (and a copy of which shall be furnished to the Buyer promptly after adoption) determines that such issuance is fair to the holders of each class and series of capital stock of the Company and to the Buyer in respect of its equity interest in the Company that is represented by Company, including the Preferred Shares Shares, the Dividend Shares, if any, and the Warrants. (3) Subject to the restrictions in Sections 4(i)(1) and 4(i)(2), during the period from the date of execution and delivery of this Agreement to the date which is 180 days after the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) any Equity Securities without giving the Buyer the first right to acquire the Equity Securities on the same terms as the Equity Securities are to be offered to other investors; PROVIDED, HOWEVER, that this Section 4(i)(3) shall not apply to the offer or sale of Equity Securities by the Company in the transactions, and subject to the conditions, set forth in clauses (v), (w), (x), (y) and (z) of the proviso to the first sentence of Section 4(i)(2) above. The Company shall give notice to the Buyer of the detailed terms of the Equity Securities proposed to be issued and, promptly after being requested by the Buyer, such other information as reasonably requested by the Buyer. Such request by the Buyer shall be made not later than five Business Days after receipt of such notice from the Company. The Buyer may, by notice to the Company, exercise such right of first refusal at any time until the later of (x) ten Business Days after such notice from the Company to the Buyer and (y) five Business Days after the Company provides such additional information as shall have been requested by the Buyer.

Certain Issuances of Securities. (1) Unless If the transactions contemplated by this Agreement are subject to the rules proposed to be adopted by Nasdaq which would require stockholder approval of certain transactions (the "Nasdaq Stockholder Approval Rules") then unless the Company obtains the Stockholder Approval (as defined in the Certificate Statement of DesignationsRights) or a waiver thereof from the Nasdaq, the Company will not issue any shares of Common Stock or shares of any other series of preferred stock or other securities convertible into, exchangeable for, for or otherwise entitling the holder to acquire, acquire shares of Common Stock which issuance would be subject to the requirements of the Nasdaq Stockholder Approval Rule Rules (or any successor or replacement provision thereof) and which would be integrated with the sale of the Preferred Shares and issuance of the Warrants to the Buyer or the issuance of Common Shares upon conversion of the Preferred Shares or upon exercise of the Warrants thereof for purposes of the Nasdaq Stockholder Approval RuleRules (or any successor or replacement provision thereof). (2) During the period from the date of this Agreement to the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, the The Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) (A) any security (whether debt or equity) with conversion or exchange terms similar in nature to the conversion rights of the Preferred Stock, (B) any equity securities or securities convertible into, exchangeable for or otherwise entitling the holder to acquire, any Common Stock (collectively, "Equity Securities") at a price below the market price of the Common Stock on during the period from the Closing Date to the date of such issuance (or below an average market price on which the Registration Statement shall have been effective with the SEC for a reasonable period prior to such issuance) or (C) any equity securities or securities which by their terms are convertible into60 consecutive days; provided, exchangeable for or otherwise entitle the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of conversion, exchange or other exercise thereof (or below an average market price for a reasonable period prior to such conversion, exchange or other exercise) (collectively, "Equity Securities"); PROVIDED, HOWEVERhowever, that nothing in this Section 4(i)(2) shall prohibit the Company from issuing securities (v) which are equity (not debt) securities issued in a single transaction for aggregate gross consideration of up to $5,000,000 and which (i) are purchased for or are convertible into or are exercisable for shares of Common Stock at a fixed price not more than 20% below the market price of the Common Stock on the date of issuance (or below an average market price for a reasonable period prior to such issuance), and (ii) are not subject to any future adjustment related to changes in the market price of the Common Stock pursuant to which additional shares or other securities may be issued, cash payments become due, or the conversion or exercise price of any convertible security may be reduced, other than pursuant to customary antidilution provisions for stock splits and similar events, (wx) pursuant to compensation plans or arrangements for employees, directors, officers, advisers or consultants of the Company and in accordance with the terms of such plans as in effect as of the date of this Agreement or as thereafter approved by the Board of Directors of the Company, (xy) upon exercise of conversion, exchange, purchase or similar rights issued, granted or given by the Company and outstanding as of the date of this Agreement and disclosed in the SEC Reports or this Agreement, (y) pursuant to a public offering underwritten on a firm commitment basis registered under the 1933 Act or (z) as part of a transaction involving a strategic alliance, acquisition of stock or assets, merger, collaboration, joint venture, partnership or other similar arrangement including without limitation amending any outstanding warrants of the Company with another corporation, partnership or other business entity which is engaged in a business similar to or related to lower the business of exercise price thereof and calling for the Company, so long as in the case of this clause (z) the Board of Directors by resolution duly adopted (and a copy of which shall be furnished to the Buyer promptly after adoption) determines that such issuance is fair to the holders of each class and series of capital stock of the Company and to the Buyer in respect of its equity interest in the Company that is represented by the Preferred Shares and the Warrants. (3) Subject to the restrictions in Sections 4(i)(1) and 4(i)(2), during the period from the date of execution and delivery of this Agreement to the date which is 180 days after the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) any Equity Securities without giving the Buyer the first right to acquire the Equity Securities on the same terms as the Equity Securities are to be offered to other investors; PROVIDED, HOWEVER, that this Section 4(i)(3) shall not apply to the offer or sale of Equity Securities by the Company in the transactions, and subject to the conditions, set forth in clauses (v), (w), (x), (y) and (z) of the proviso to the first sentence of Section 4(i)(2) above. The Company shall give notice to the Buyer of the detailed terms of the Equity Securities proposed to be issued and, promptly after being requested by the Buyer, such other information as reasonably requested by the Buyer. Such request by the Buyer shall be made not later than five Business Days after receipt redemption of such notice from the Company. The Buyer may, by notice to the Company, exercise such right of first refusal at any time until the later of (x) ten Business Days after such notice from the Company to the Buyer and (y) five Business Days after the Company provides such additional information as shall have been requested by the Buyerwarrants.

Certain Issuances of Securities. (1) Unless the Company obtains the Stockholder Approval (as defined in the Certificate of Designations) or a waiver thereof from the Nasdaq, the Company will not issue any shares of Common Stock or shares of any other series of preferred stock or other securities convertible into, exchangeable for, or otherwise entitling the holder to acquire, shares of Common Stock which would be subject to the requirements of the Stockholder Approval Rule and which would be integrated with the sale of the Preferred Initial Shares and issuance of or the Warrants to the Buyer Second Tranche Shares or the issuance of Common Repricing Shares upon conversion of to the Preferred Shares or upon exercise of the Warrants Buyer for purposes of the Stockholder Approval Rule. (2) During the period from the date of this Agreement to the later of (i) the date which is one year 180 days after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive daysDate, the Company shall not offer, sell, contract to sell or issue (or engage any person Person to assist the Company in taking any such action) (A) any security (whether debt or equity) with conversion or exchange terms similar in nature to the conversion rights of the Preferred StockSpecified Securities; provided, (B) any equity securities or securities convertible into, exchangeable for or otherwise entitling the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of such issuance (or below an average market price for a reasonable period prior to such issuance) or (C) any equity securities or securities which by their terms are convertible into, exchangeable for or otherwise entitle the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of conversion, exchange or other exercise thereof (or below an average market price for a reasonable period prior to such conversion, exchange or other exercise) (collectively, "Equity Securities"); PROVIDED, HOWEVERhowever, that nothing in this Section 4(i)(26(i) shall prohibit the Company from issuing securities (vw) which are equity (not debt) securities issued in a single transaction for aggregate gross consideration of up to $5,000,000 and which (i) are purchased for or are convertible into or are exercisable for shares of Common Stock at a fixed price not more than 20% below the market price of the Common Stock on the date of issuance (or below an average market price for a reasonable period prior to such issuanceas permitted by Section 6(i)(4), and (ii) are not subject to any future adjustment related to changes in the market price of the Common Stock pursuant to which additional shares or other securities may be issued, cash payments become due, or the conversion or exercise price of any convertible security may be reduced, other than pursuant to customary antidilution provisions for stock splits and similar events, (wx) pursuant to compensation plans or arrangements for employees, directors, officers, advisers or consultants of the Company and in accordance with the terms of such plans as in effect as of the date of this Agreement or as thereafter approved by the Board of Directors of the CompanyAgreement, (xy) upon exercise of conversion, exchange, purchase or similar rights issued, granted or given by the Company and outstanding as of the date of this Agreement and disclosed in the SEC Reports or this Agreement, (y) pursuant to a public offering underwritten on a firm commitment basis registered under the 1933 Act Agreement or (z) as part of a transaction involving a strategic alliance, acquisition of stock or assets, merger, collaboration, joint venture, partnership or other similar arrangement pursuant to the specific terms of the Company with another corporation, partnership or other business entity which is engaged in a business similar to or related to the business of the Company, so long as in the case of this clause (z) the Board of Directors by resolution duly adopted (and a copy of which shall be furnished to the Buyer promptly after adoption) determines that such issuance is fair to the holders of each class and series of capital stock of the Company and to the Buyer in respect of its equity interest in the Company that is represented by the Preferred Shares and the Warrantstransaction described on Schedule 6(i)(2)attached hereto. (3) Subject to the restrictions in Sections 4(i)(1) and 4(i)(2Except as permitted by Section 6(i)(4), during the period from the date of execution and delivery of this Agreement to commencing on the date which is 180 181 days after the later of (i) Closing Date to the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive daysDate, the Company shall not offer, sell, contract to sell or issue (or engage any person Person to assist the Company in taking any such action) any Equity Specified Securities without giving the Buyer the first right to acquire the Equity Specified Securities on the same terms as the Equity Specified Securities are to be offered to other investors; PROVIDED, HOWEVER, that this Section 4(i)(3) shall not apply to the offer or sale of Equity Securities by the Company in the transactions, and subject to the conditions, set forth in clauses (v), (w), (x), (y) and (z) of the proviso to the first sentence of Section 4(i)(2) above. The Company shall give notice to the Buyer of the detailed terms of the Equity Specified Securities proposed to be issued and, promptly after being requested by the Buyer, such other information as reasonably requested by the Buyer. Such request by the Buyer shall be made not later than five Business Days after receipt of such notice from the Company. The Buyer may, by notice to the Company, exercise such right of first refusal at any time until the later of (x) ten 10 Business Days after such notice from the Company to the Buyer and (y) five 5 Business Days after the Company provides such additional information as shall have been requested by the Buyer. (4) During the period commencing on the day after the Second Closing Date to the date which is one year after the Closing Date, if the Company desires to offer and sell shares of Common Stock for an aggregate consideration of up to $1,500,000 on substantially the same terms as the sale of the Shares pursuant to this Agreement (including the issuance of repricing rights and warrants in connection therewith), the Company shall first offer such securities to the Buyer and the Other Buyers. The Company shall give notice to the Buyer of the detailed terms of such securities proposed to be issued and, promptly after being requested by the Buyer, such other information as requested by the Buyer. The Buyer may exercise such right of first refusal by giving notice to the Company on or before the second Business Day after receiving such notice from the Company. If the Buyer fails to exercise such right, the Company may complete the transaction on the same terms with other investors during the following 30-day period. This Section 6(i)(4) shall only be effective if the Second Closing Date has occurred.

Certain Issuances of Securities. (1) Unless If the transactions contemplated by this Agreement are subject to the rules proposed to be adopted by Nasdaq which would require stockholder approval of certain transactions (the "Nasdaq Stockholder Approval Rules"), then unless the Company obtains the Stockholder Approval (as defined in the Certificate of Designations) or a waiver thereof from the Nasdaq, the Company will not issue any shares of Common Stock or shares of any other series of preferred stock or other securities convertible into, exchangeable for, for or otherwise entitling the holder to acquire, acquire shares of Common Stock which would be subject to the requirements of the Stockholder Approval Rule Nasdaq (or any successor or replacement provision thereof) and which would be integrated with the sale of the Preferred Shares and issuance of the Warrants to the Buyer or the issuance of Common Shares upon conversion of the Preferred Shares or upon exercise of the Warrants thereof Stockholder Approval Rules for purposes of the Nasdaq Stockholder Approval RuleRules (or any successor or replacement provision thereof). (2) During the period from the date of this Agreement to the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement (as defined in the Registration Rights Agreement) shall have been effective with the SEC for 270 consecutive days, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) (A) any security (whether debt or equity) with conversion or exchange terms similar in nature to the conversion rights of the Preferred Stock, (B) any equity securities or securities convertible into, exchangeable for or otherwise entitling the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of such issuance (or below an average market price for a reasonable period prior to such issuance) or (C) any equity securities or securities which by their terms are convertible into, exchangeable for or otherwise entitle the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of conversion, exchange or other exercise thereof (or below an average market price for a reasonable period prior to such conversion, exchange or other exercise) (collectively, "Equity Securities"); PROVIDED, HOWEVER, that nothing in this Section 4(i)(2) shall prohibit the Company from issuing securities (v) which are equity (not debt) securities issued in a single transaction for aggregate gross consideration of up to $5,000,000 and which (i) are purchased for or are convertible into or are exercisable for shares of Common Stock at a fixed price not more than 20% below the market price of the Common Stock on the date of issuance (or below an average market price for a reasonable period prior to such issuance), and (ii) are not subject to any future adjustment related to changes in the market price of the Common Stock pursuant to which additional shares or other securities may be issued, cash payments become due, or the conversion or exercise price of any convertible security may be reduced, other than pursuant to customary antidilution provisions for stock splits and similar events, (w) pursuant to compensation plans or arrangements for employees, directors, officers, advisers or consultants of the Company and in accordance with the terms of such plans as in effect as of the date of this Agreement or as thereafter approved by the Board of Directors of the Company, (x) upon exercise of conversion, exchange, purchase or similar rights issued, granted or given by the Company and outstanding as of the date of this Agreement and disclosed in the SEC Reports or this Agreement, (y) pursuant to a public offering underwritten on a firm commitment basis registered under the 1933 Act or (z) as part of a transaction involving a strategic alliance, acquisition of stock or assets, merger, collaboration, joint venture, partnership or other similar arrangement of the Company with another corporation, partnership or other business entity which is engaged in a business similar to or related to the business of the Company, so long as in the case of this clause (z) the Board of Directors by resolution duly adopted (and a copy of which shall be furnished to the Buyer promptly after adoption) determines that such issuance is fair to the holders of each class and series of capital stock of the Company and to the Buyer in respect of its equity interest in the Company that is represented by the Preferred Shares and the Warrants. (3) Subject to the restrictions in Sections 4(i)(1) and 4(i)(2), during the period from the date of execution and delivery of this Agreement to the date which is 180 days after the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 60 consecutive days, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) any equity securities or securities convertible into, exchangeable for or otherwise entitling the holder to acquire, any Common Stock (collectively, "Equity Securities Securities") at a price below the market price of the Common Stock without (a) giving the Buyer the first right to acquire the Equity Securities on the same terms as at which the Equity Securities are to be offered to other investorsinvestors (and on terms which permit the Buyer to purchase a pro rata portion of such Equity Securities, based on the portion of the shares of Preferred Stock purchased by the Buyer pursuant to this Agreement), and (b) obtaining consent of the holders of a majority of the shares of the Preferred Shares which consent will not unreasonably be withheld; PROVIDEDprovided, HOWEVERhowever, that nothing in this Section 4(i)(34(i)(2) shall not apply to the offer or sale of Equity Securities by prohibit -------- ------- the Company in the transactions, and subject to the conditions, set forth in clauses (v), (w), from issuing securities (x)) pursuant to compensation plans for employees, directors, officers, advisers or consultants of the Company and in accordance with the terms of such plans as in effect as of the date of this Agreement, (y) upon exercise of conversion, exchange, purchase or similar rights issued, granted or given by the Company and outstanding as of the date of this Agreement or (z) in connection with the acquisition of all or substantially all the proviso to the first sentence assets or stock of Section 4(i)(2) above. The Company shall give notice to the Buyer of the detailed terms of the Equity Securities proposed to be issued and, promptly after being requested by the Buyer, such other information as reasonably requested by the Buyer. Such request by the Buyer shall be made not later than five Business Days after receipt of such notice from the Company. The Buyer may, by notice to the Company, exercise such right of first refusal at any time until the later of (x) ten Business Days after such notice from the Company to the Buyer and (y) five Business Days after the Company provides such additional information as shall have been requested by the Buyeranother entity.

Certain Issuances of Securities. (1) Unless the Company obtains the Stockholder Approval (as defined in the Certificate of Designations) or a waiver thereof from the NasdaqNasdaq Stock Market, the Company will not issue any shares of Common Stock or shares of any other series of preferred stock or other securities convertible into, exchangeable for, or otherwise entitling the holder to acquire, shares of Common Stock which would be subject to the requirements of Section 4460(i)(1)(D) of the Stockholder Approval Rule rules of the NASD (or any successor or replacement provision thereof) and which would be integrated with the sale of the Preferred Shares and issuance of the Warrants to the Buyer or the issuance of Common Shares upon conversion thereof or in payment of the Preferred Shares or upon exercise of the Warrants dividends thereon for purposes of the Stockholder Approval Rulesuch Section 4460(i)(1)(D) (or any successor or replacement provision thereof). (2) During the period from the date of execution and delivery of this Agreement by the parties hereto to the later of (i) the date which is one year 90 days after the Closing Date and (ii) Date, without the date on which prior written consent of the Registration Statement shall have been effective with the SEC for 270 consecutive days, Majority Holders the Company shall not offer, sell, contract to sell or issue (or engage any person Person to assist the Company in taking any such action) (A) any security (whether debt or equity) with securities having conversion or exchange terms similar in nature to the conversion rights of the Preferred Stock, Stock or (B) any equity securities Equity Securities which are Common Stock, or securities convertible into, exchangeable for or otherwise entitling which entitle the holder to acquireacquire Common Stock, any Common Stock at a price below the market price of the Common Stock on the date of such issuance (or below an average market price for a reasonable period prior to such issuance) or (C) any equity securities or securities which by their terms are convertible intoStock; provided, exchangeable for or otherwise entitle the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of conversion, exchange or other exercise thereof (or below an average market price for a reasonable period prior to such conversion, exchange or other exercise) (collectively, "Equity Securities"); PROVIDED, HOWEVERhowever, that nothing in this Section 4(i)(25(h)(2) shall prohibit the Company from issuing securities (v) which are equity (not debt) securities issued in a single transaction for aggregate gross consideration of up to $5,000,000 and which (i) are purchased for or are convertible into or are exercisable for shares of Common Stock at a fixed price not more than 20% below the market price of the Common Stock on the date of issuance (or below an average market price for a reasonable period prior to such issuance), and (ii) are not subject to any future adjustment related to changes in the market price of the Common Stock pursuant to which additional shares or other securities may be issued, cash payments become due, or the conversion or exercise price of any convertible security may be reduced, other than pursuant to customary antidilution provisions for stock splits and similar events, (w) pursuant to compensation plans or arrangements for employees, directors, officers, advisers or consultants of the Company and in accordance with the terms of such plans as in effect as of the date of this Agreement or as thereafter approved by the Board of Directors of the CompanyAgreement, (x) upon exercise of conversion, exchange, purchase or similar rights issued, granted or given by the Company and outstanding as of on the date of this Agreement and disclosed in the SEC Reports or this Agreement, (y) pursuant to a public offering underwritten on a firm commitment basis registered under the 1933 Act or (z) as part of a transaction involving in connection with a strategic alliance, acquisition of stock or assets, merger, collaboration, joint venture, partnership partnership, or other similar arrangement of the Company with another corporation, partnership or other business entity Person which is engaged in a business similar to or related to the business of the Company, so long as in the case of this clause (z) the Board of Directors by resolution duly adopted (and a copy of which shall be furnished to the Buyer promptly after adoption) determines that such issuance is fair to the holders of each class and series of capital stock of the Company and to the Buyer in respect of its equity interest in the Company that is represented by the Preferred Shares and the Warrants. (3) Subject to the restrictions in Sections 4(i)(1) and 4(i)(2), during the period from the date of execution and delivery of this Agreement to the date which is 180 days after the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) any Equity Securities without giving the Buyer the first right to acquire the Equity Securities on the same terms as the Equity Securities are to be offered to other investors; PROVIDED, HOWEVER, that this Section 4(i)(3) shall not apply to the offer or sale of Equity Securities by the Company in the transactions, and subject to the conditions, set forth in clauses (v), (w), (x), (y) Subsidiary and (z) of the proviso pursuant to the first sentence of Section 4(i)(2) above. The Company shall give notice to the Buyer of the detailed terms of the Equity Securities proposed to be issued and, promptly after being requested by the Buyer, such other information as reasonably requested by the Buyer. Such request by the Buyer shall be made not later than five Business Days after receipt of such notice from the Company. The Buyer may, by notice to the Company, exercise such right of first refusal at any time until the later of (x) ten Business Days after such notice from the Company to the Buyer and (y) five Business Days after the Company provides such additional information as shall have been requested by the Buyeran underwritten offering for cash on a firm commitment basis.

Certain Issuances of Securities. (1) Unless the Company obtains the Stockholder Approval (as defined in the Certificate of Designations) or a waiver thereof from the Nasdaq, the Company will not issue any shares of Common Stock or shares of any other series of preferred stock or other securities convertible into, exchangeable for, for or otherwise entitling the holder to acquire, acquire shares of Common Stock which would be subject to the requirements of Rule 4460(i) of the Stockholder Approval Rule Nasdaq (or any successor or replacement provision thereof) and which would be integrated with the sale of the Preferred Shares and issuance of the Warrants to the Buyer or the issuance of Common Shares upon conversion of the Preferred Shares thereof or upon exercise of the Warrants for purposes of Rule 4460(i) of the Stockholder Approval RuleNasdaq (or any successor or replacement provision thereof). (2) During the period from the date of this Agreement to the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement (as defined in the Registration Rights Agreement) shall have been effective with the SEC for 270 90 consecutive days, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) (A) any security (whether debt or equity) with conversion or exchange terms similar in nature to the conversion rights of the Preferred Stock, (B) any equity securities or securities convertible into, exchangeable for or otherwise entitling the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of such issuance or acquisition (or below an average market price for a reasonable "Discounted Securities"). (3) Subject to the restrictions in Section 4(i)(1) above, during the period prior to such issuance) or (C) any equity securities or securities which by their terms are convertible into, exchangeable for or otherwise entitle the holder to acquire, any Common Stock at a price below the market price of the Common Stock on from the date of conversionexecution and delivery of this Agreement to the date which is one year after the Closing Date (as hereinafter defined), exchange the Company shall not offer, sell, contract to sell or other exercise thereof issue (or below an average market price for a reasonable period prior engage any person to assist the Company in taking any such conversion, exchange or action) any Discounted Securities without giving the Buyer the first right to acquire the Discounted Securities on the same terms at which the Discounted Securities are to be offered to other exerciseinvestors. The Company shall give notice to the Buyer of the detailed terms of the Discounted Securities proposed to be issued and such other information as requested by the Buyer within three Business Days after receipt of such notice. The Buyer may by notice to the Company exercise such right of first refusal at any time until the later of (x) ten Business Days after such notice from the Company to the Buyer and (collectively, "Equity Securities"); PROVIDED, HOWEVER, that nothing in y) two Business Days after the Company provides such additional information as shall have timely been requested by the Buyer. (4) Notwithstanding the provisions of clauses (2) and (3) above of this Section 4(i)(2) 4(i), nothing therein shall prohibit the Company from issuing securities (v) which are equity (not debt) securities issued in a single transaction for aggregate gross consideration of up to $5,000,000 and which (i) are purchased for or are convertible into or are exercisable for shares of Common Stock at a fixed price not more than 20% below the market price of the Common Stock on the date of issuance (or below an average market price for a reasonable period prior to such issuance), and (ii) are not subject to any future adjustment related to changes in the market price of the Common Stock pursuant to which additional shares or other securities may be issued, cash payments become due, or the conversion or exercise price of any convertible security may be reduced, other than pursuant to customary antidilution provisions for stock splits and similar events, (wx) pursuant to compensation plans or arrangements for employees, directors, officers, advisers or consultants of the Company and in accordance with the terms of such plans as in effect as of the date of this Agreement or as thereafter approved by the Board of Directors of the Company, (xy) upon exercise of conversion, exchange, purchase or similar rights issued, granted or given by the Company and outstanding as of the date of this Agreement and disclosed in the SEC Reports or this Agreement, (y) pursuant to a public offering underwritten on a firm commitment basis registered under the 1933 Act or (z) as part of a transaction involving a strategic alliance, acquisition of stock or assets, merger, collaboration, joint venture, partnership or other similar arrangement of the Company with another corporation, partnership or other business entity which is engaged in a business similar to or related to the business of the Company, so long as in the case of this clause (z) the Board of Directors by resolution duly adopted (and a copy of which shall be furnished to the Buyer promptly after adoption) determines that such issuance is fair to the holders of each class and series of capital stock of the Company and to the Buyer in respect of its equity interest in the Company that is represented by the Preferred Shares and the Warrants. (3) Subject to the restrictions in Sections 4(i)(1) and 4(i)(2), during the period from the date of execution and delivery of this Agreement to the date which is 180 days after the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) any Equity Securities without giving the Buyer the first right to acquire the Equity Securities on the same terms as the Equity Securities are to be offered to other investors; PROVIDED, HOWEVER, that this Section 4(i)(3) shall not apply to the offer or sale of Equity Securities by the Company in the transactions, and subject to the conditions, set forth in clauses (v), (w), (x), (y) and (z) of the proviso to the first sentence of Section 4(i)(2) above. The Company shall give notice to the Buyer of the detailed terms of the Equity Securities proposed to be issued and, promptly after being requested by the Buyer, such other information as reasonably requested by the Buyer. Such request by the Buyer shall be made not later than five Business Days after receipt of such notice from the Company. The Buyer may, by notice to the Company, exercise such right of first refusal at any time until the later of (x) ten Business Days after such notice from the Company to the Buyer and (y) five Business Days after the Company provides such additional information as shall have been requested by the Buyer.

Certain Issuances of Securities. (1) Unless the Company obtains the Stockholder approval of its stockholders as required by the Shareholder Approval (as defined in the Certificate of Designations) Rule or a waiver thereof from the Nasdaq, the Company will not issue any shares of Common Stock or shares of any other series of preferred stock or other securities convertible into, exchangeable for, or otherwise entitling the holder to acquire, shares of Common Stock which would be subject to the requirements of the Stockholder Shareholder Approval Rule and which would be integrated with the sale of the Preferred Common Shares and issuance of the Warrants to the Buyer or the issuance of Common Warrant Shares upon conversion of the Preferred Shares or upon exercise of the Warrants for purposes of the Stockholder Shareholder Approval Rule. (2) During the period from the date of this Agreement to the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 180 consecutive days, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) ) (A) any security (whether debt or equity) with conversion or exchange containing terms similar in nature relating to the conversion rights number of shares issuable and the purchase price therefor which are similar to the terms of the Preferred Stock, Class B Warrants or (B) any equity securities or securities convertible into, exchangeable for or otherwise entitling the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of such issuance (or below an average market price for a reasonable period prior to such issuance) or (C) any equity securities or securities which by their terms are convertible into, exchangeable for or otherwise entitle the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of conversion, exchange or other exercise thereof (thereof, including, without limitation, any combination of different types of securities where the aggregate purchase price paid or below an average payable for all securities is less than the aggregate market price for a value of such securities and, in the case of warrants and similar securities, taking into account reasonable period prior to such conversion, exchange or other exercise) assumptions regarding valuation using the Black-Scholes model and similar techniques (collectively, "Equity Securities"); PROVIDEDprovided, HOWEVERhowever, that nothing in this Section 4(i)(2) shall prohibit the Company from issuing securities (v) which are equity (not debt) securities issued in a single transaction for aggregate gross consideration of up to $5,000,000 and which (i) are purchased for or are convertible into or are exercisable for shares of Common Stock at a fixed price not more than 20% below the market price of the Common Stock on the date of issuance (or below an average market price for a reasonable period prior to such issuance), and (ii) are not subject to any future adjustment related to changes in the market price of the Common Stock pursuant to which additional shares or other securities may be issued, cash payments become due, or the conversion or exercise price of any convertible security may be reduced, other than pursuant to customary antidilution provisions for stock splits and similar events, (w) pursuant to compensation plans or arrangements for employees, directors, officers, advisers or consultants of the Company and in accordance with the terms of such plans as in effect as of the date of this Agreement or as thereafter approved by the Board of Directors of the CompanyAgreement, (x) upon exercise of conversion, exchange, purchase or similar rights issued, granted or given by the Company and outstanding as of the date of this Agreement and disclosed in the SEC Reports or this Agreement, (y) pursuant to a public offering underwritten on a firm commitment basis registered under the 1933 Act or (z) as part of a transaction involving a strategic alliance, acquisition of stock or assets, merger, collaboration, joint venture, partnership or other similar arrangement of the Company with another corporation, partnership or other business entity which is engaged in a business similar to or related to the business of the Company, so long as in the case of this clause (z) the Board of Directors by resolution duly adopted (and a copy of which shall be furnished to the Buyer promptly after adoption) determines that such issuance is fair to the holders of each class and series of capital stock of the Company and to the Buyer in respect of its equity interest in the Company that is represented by the Preferred Shares and the Warrants. (3) Subject to the restrictions in Sections 4(i)(1) and 4(i)(2), during the period from the date of execution and delivery of this Agreement to the date which is 180 days after the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) any Equity Securities without giving the Buyer the first right to acquire the Equity Securities on the same terms as the Equity Securities are to be offered to other investors; PROVIDED, HOWEVER, that this Section 4(i)(3) shall not apply to the offer or sale of Equity Securities by the Company in the transactions, and subject to the conditions, set forth in clauses (v), (w), (x), (y) and (z) of the proviso to the first sentence of Section 4(i)(2) above. The Company shall give notice to the Buyer of the detailed terms of the Equity Securities proposed to be issued and, promptly after being requested by the Buyer, such other information as reasonably requested by the Buyer. Such request by the Buyer shall be made not later than five Business Days after receipt of such notice from the Company. The Buyer may, by notice to the Company, exercise such right of first refusal at any time until the later of (x) ten Business Days after such notice from the Company to the Buyer and (y) five Business Days after the Company provides such additional information as shall have been requested by the Buyer.as

Certain Issuances of Securities. (1) Unless the Company obtains the Stockholder Approval (as defined in the Certificate of Designations) or a waiver thereof from the Nasdaq, the Company will not issue any shares of Common Stock or shares of any other series of preferred stock or other securities convertible into, exchangeable for, or otherwise entitling the holder to acquire, shares of Common Stock which would be subject to the requirements of the Stockholder Approval Rule and which would be integrated with the sale of the Preferred Shares and issuance of the Warrants Warrant Shares to the Buyer or the issuance of Common Shares upon conversion of the Preferred Shares or upon exercise of the Warrants for purposes of the Stockholder Approval Rule. (2) During the period from the date of this Agreement to the later of (i) the date which is one year 180 days after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive daysDate, the Company shall not offer, sell, contract to sell or issue (or engage any person Person to assist the Company in taking any such action) (A) any security Equity Securities (whether debt including offers, sales or equity) with conversion or exchange terms similar in nature to the conversion rights transfers of the Preferred Stock, (B) any equity securities or securities convertible into, exchangeable for or otherwise entitling the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of such issuance (or below an average market price for a reasonable period prior to such issuance) or (C) any equity securities or securities which Equity Securities by their terms are convertible into, exchangeable for or otherwise entitle the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of conversion, exchange or other exercise thereof (or below an average market price for a reasonable period prior to such conversion, exchange or other exercise) (collectively, "Equity Securities"Aura); PROVIDEDprovided, HOWEVERhowever, that nothing in this Section 4(i)(25(i) shall prohibit the Company from issuing securities (v) which are equity (not debt) securities issued in a single transaction for aggregate gross consideration consisting of up to $5,000,000 and which (i) are purchased for or are convertible into or are exercisable for 1,500,000 shares of Common Stock at a fixed price not more than 20% below the market price issuable to trade creditors of the Common Stock Company which shares may not be registered for resale on a registration statement filed with the date of issuance (or below an average market price for a reasonable period SEC prior to such issuance), and (ii) are not subject to any future adjustment related to changes in 120 days after the market price of the Common Stock pursuant to which additional shares or other securities may be issued, cash payments become due, or the conversion or exercise price of any convertible security may be reduced, other than pursuant to customary antidilution provisions for stock splits and similar eventsissuance thereof, (w) as permitted by Section 6(i)(4) of the Subscription Agreements, (x) pursuant to compensation plans or arrangements for employees, directors, officers, advisers or consultants of the Company and in accordance with the terms of such plans as in effect as of the date of this Agreement or as thereafter approved by the Board of Directors of the CompanyAgreement, (xy) upon exercise of conversion, exchange, purchase or similar rights issued, granted or given by the Company and outstanding as of the date of this Agreement and disclosed in the SEC Reports or this Agreement, (y) pursuant to a public offering underwritten on a firm commitment basis registered under the 1933 Act Agreement or (z) as part of a transaction involving a strategic alliance, acquisition of stock or assets, merger, collaboration, joint venture, partnership or other similar arrangement pursuant to the specific terms of the Company with another corporation, partnership or other business entity which is engaged in a business similar to or related to the business of the Company, so long as in the case of this clause (z) the Board of Directors by resolution duly adopted (and a copy of which shall be furnished to the Buyer promptly after adoption) determines that such issuance is fair to the holders of each class and series of capital stock of the Company and to the Buyer in respect of its equity interest in the Company that is represented by the Preferred Shares and the Warrantstransaction described on Schedule 6(i)(2)attached hereto. (3) Subject to Except for the restrictions in Sections 4(i)(1) and 4(i)(2transaction described on Schedule 6(i)(2), during the period from the date of execution and delivery of this Agreement to the date which is 180 days after the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive daysDate, the Company shall not offerdiscuss, sell, contract to sell negotiate or issue (pursue any debt or engage any person to assist equity financing proposal with a third party without the Company in taking any such action) any Equity Securities without giving the Buyer the first right to acquire the Equity Securities on the same terms as the Equity Securities are to be offered to other investors; PROVIDED, HOWEVER, that this Section 4(i)(3) shall not apply to the offer or sale prior written consent of Equity Securities by the Company in the transactions, and subject to the conditions, set forth in clauses (v), (w), (x), (y) and (z) of the proviso to the first sentence of Section 4(i)(2) above. The Company shall give notice to the Buyer of the detailed terms of the Equity Securities proposed to be issued and, promptly after being requested by the Buyer, such other information as reasonably requested by the Buyer. Such request by the Buyer shall be made not later than five Business Days after receipt of such notice from the Company. The Buyer may, by notice to the Company, exercise such right of first refusal at any time until the later of (x) ten Business Days after such notice from the Company to the Buyer and (y) five Business Days after the Company provides such additional information as shall have been requested by the Buyer.

Certain Issuances of Securities. (1) Unless the Company obtains the Stockholder Approval (as defined in the Certificate of DesignationsNote) or a waiver thereof from the Nasdaq, the Company will not issue any shares of Common Stock or shares of any other series of preferred stock or other securities convertible into, exchangeable for, or otherwise entitling the holder to acquire, shares of Common Stock which would be subject to the requirements of Rule 4460(i) of Nasdaq (or any successor, replacement, or similar provision thereof or of any other market on which the Stockholder Approval Rule Common Stock is listed for trading) and which would be integrated with the sale of the Preferred Shares Note and issuance of the Warrants to the Buyer or the issuance of Common Shares upon conversion of the Preferred Shares Note or upon Interest Notes or exercise of the Warrants for purposes of Rule 4460(i) of Nasdaq (or any successor, replacement or similar provision thereof or of any other market on which the Stockholder Approval RuleCommon Stock is listed for trading). (2) During the period from the date of this Agreement to the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) (A) any security (whether debt or equity) with conversion or exchange terms similar in nature to the conversion rights of the Preferred Stock, (B) any equity securities or securities convertible into, exchangeable for or otherwise entitling the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of such issuance (or below an average market price for a reasonable period prior to such issuance) or (C) any equity securities or securities which by their terms are convertible into, exchangeable for or otherwise entitle the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of conversion, exchange or other exercise thereof (or below an average market price for a reasonable period prior to such conversion, exchange or other exercise) (collectively, "Equity Securities"); PROVIDED, HOWEVER, that nothing in this Section 4(i)(2) shall prohibit the Company from issuing securities (v) which are equity (not debt) securities issued in a single transaction for aggregate gross consideration of up to $5,000,000 and which (i) are purchased for or are convertible into or are exercisable for shares of Common Stock at a fixed price not more than 20% below the market price of the Common Stock on the date of issuance (or below an average market price for a reasonable period prior to such issuance), and (ii) are not subject to any future adjustment related to changes in the market price of the Common Stock pursuant to which additional shares or other securities may be issued, cash payments become due, or the conversion or exercise price of any convertible security may be reduced, other than pursuant to customary antidilution provisions for stock splits and similar events, (w) pursuant to compensation plans or arrangements for employees, directors, officers, advisers or consultants of the Company and in accordance with the terms of such plans as in effect as of the date of this Agreement or as thereafter approved by the Board of Directors of the Company, (x) upon exercise of conversion, exchange, purchase or similar rights issued, granted or given by the Company and outstanding as of the date of this Agreement and disclosed in the SEC Reports or this Agreement, (y) pursuant to a public offering underwritten on a firm commitment basis registered under the 1933 Act or (z) as part of a transaction involving a strategic alliance, acquisition of stock or assets, merger, collaboration, joint venture, partnership or other similar arrangement of the Company with another corporation, partnership or other business entity which is engaged in a business similar to or related to the business of the Company, so long as in the case of this clause (z) the Board of Directors by resolution duly adopted (and a copy of which shall be furnished to the Buyer promptly after adoption) determines that such issuance is fair to the holders of each class and series of capital stock of the Company and to the Buyer in respect of its equity interest in the Company that is represented by the Preferred Shares and the Warrants. (3) Subject to the restrictions in Sections Section 4(i)(1) and 4(i)(2), during the period from the date of execution and delivery of this Agreement to the date which is 180 days after the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive daysDate, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) any Equity Discounted Securities without giving the Buyer the first right to acquire all or any portion, as determined by the Equity Buyer in its discretion, of such Discounted Securities on the same terms as the Equity Discounted Securities are to be offered to other investors; PROVIDED, HOWEVER, that this Section 4(i)(3) shall not apply to . In each instance of proposed issuance of Discounted Securities the offer or sale of Equity Securities by the Company in the transactions, and subject to the conditions, set forth in clauses (v), (w), (x), (y) and (z) of the proviso to the first sentence of Section 4(i)(2) above. The Company shall give notice to the Buyer of the detailed terms of the Equity such Discounted Securities proposed to be issued and, promptly after being requested by the Buyer, such other information as reasonably requested by the Buyer. Such request by the Buyer shall be made not later than five Business Days after receipt of such notice from the Company. The Buyer may, by notice to the Company, exercise such right of first refusal at any time until the later of (x) ten Business Days after such notice from the Company to the Buyer and (y) five three Business Days after the Company provides such additional information as shall have been requested by the Buyer.

Certain Issuances of Securities. (1) Unless the Company obtains the Stockholder Approval (as defined in the Certificate of Designations) or a waiver thereof from the Nasdaq, the Company will not issue any shares of Common Stock or shares of any other series of preferred stock or other securities convertible into, exchangeable for, for or otherwise entitling the holder to acquire, acquire shares of Common Stock which would be subject to the requirements of Rule 4460(i) of the Stockholder Approval Rule Nasdaq (or any successor or replacement provision thereof) and which would be integrated with the sale of the Preferred Shares and issuance of the Warrants to the Buyer or the issuance of Common Shares upon conversion of the Preferred Shares or upon exercise of the Warrants thereof for purposes of Rule 4460(i) of the Stockholder Approval RuleNasdaq (or any successor or replacement provision thereof). (2) During the period from the date of this Agreement to the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, the The Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) (A) any security (whether debt or equity) with conversion or exchange terms similar in nature to the conversion rights of the Preferred Stock, (B) any equity securities or securities convertible into, exchangeable for or otherwise entitling the holder to acquire, any Common Stock (collectively, "Equity Securities") at a price below the market price of the Common Stock on during the period from the date of such issuance (or below an average market price for a reasonable period prior this Agreement to such issuance) or (C) any equity securities or securities which by their terms are convertible into, exchangeable for or otherwise entitle the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of conversionon which the Registration Statement (as defined in the Registration Rights Agreement) shall have been effective with the SEC for 60 consecutive days; provided, exchange or other exercise thereof (or below an average market price for a reasonable period prior to such conversion, exchange or other exercise) (collectively, "Equity Securities"); PROVIDED, HOWEVERhowever, that nothing -------- ------- in this Section 4(i)(2) shall prohibit the Company from issuing securities (v) which are equity (not debt) securities issued in a single transaction for aggregate gross consideration of up to $5,000,000 and which (i) are purchased for or are convertible into or are exercisable for shares of Common Stock at a fixed price not more than 20% below the market price of the Common Stock on the date of issuance (or below an average market price for a reasonable period prior to such issuance), and (ii) are not subject to any future adjustment related to changes in the market price of the Common Stock pursuant to which additional shares or other securities may be issued, cash payments become due, or the conversion or exercise price of any convertible security may be reduced, other than pursuant to customary antidilution provisions for stock splits and similar events, (wx) pursuant to compensation plans or arrangements for employees, directors, officers, advisers or consultants of the Company and in accordance with the terms of such plans as in effect as of the date of this Agreement or as thereafter approved by the Board of Directors of the Company, (xy) upon exercise of conversion, exchange, purchase or similar rights issued, granted or given by the Company and outstanding as of the date of this Agreement and disclosed in the SEC Reports or this Agreement, (y) pursuant to a public offering underwritten on a firm commitment basis registered under the 1933 Act or (z) as part of a transaction involving a strategic alliance, acquisition of stock or assets, merger, collaboration, joint venture, partnership or other similar arrangement of the Company with another corporation, partnership or other business entity which is engaged in a business similar to or related to the business of the Company, so long as in the case of this clause (z) the Board of Directors by resolution duly adopted (and a copy of which shall be furnished to the Buyer promptly after adoption) determines that such issuance is fair to the holders of each class and series of capital stock of the Company and to the Buyer in respect of its equity interest in the Company that is represented by the Preferred Shares and the Warrants. (3) Subject to the restrictions in Sections 4(i)(1) and 4(i)(2), during the period from the date of execution and delivery of this Agreement to the date which is 180 days after the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) any Equity Securities without giving the Buyer the first right to acquire the Equity Securities on the same terms as the Equity Securities are to be offered to other investors; PROVIDED, HOWEVER, that this Section 4(i)(3) shall not apply to the offer or sale of Equity Securities by the Company in the transactions, and subject to the conditions, set forth in clauses (v), (w), (x), (y) and (z) of the proviso to the first sentence of Section 4(i)(2) above. The Company shall give notice to the Buyer of the detailed terms of the Equity Securities proposed to be issued and, promptly after being requested by the Buyer, such other information as reasonably requested by the Buyer. Such request by the Buyer shall be made not later than five Business Days after receipt of such notice from the Company. The Buyer may, by notice to the Company, exercise such right of first refusal at any time until the later of (x) ten Business Days after such notice from the Company to the Buyer and (y) five Business Days after the Company provides such additional information as shall have been requested by the Buyer.

Certain Issuances of Securities. (1) Unless the Company obtains the Stockholder Shareholder Approval (as defined in the Certificate of DesignationsDesignation) or a waiver thereof from the Nasdaq, the Company will not issue any shares of Common Stock or shares of any other series of preferred stock or other securities convertible into, exchangeable for, or otherwise entitling the holder to acquire, shares of Common Stock which would be subject to the requirements of Rule 4310(c)(25)(H) of Nasdaq (or any successor, replacement, or similar provision thereof or of any other market on which the Stockholder Approval Rule Common Stock is listed for trading) and which would be integrated with the sale of the Preferred Shares and to the Buyer, the issuance of the Warrants to the Buyer Dividend Shares or the issuance of Common Shares upon conversion of the Preferred Shares or upon exercise of the Warrants thereof for purposes of Rule 4310(c)(25)(H) of Nasdaq (or any successor, replacement or similar provision thereof or of any other market on which the Stockholder Approval RuleCommon Stock is listed for trading). (2) During the period from the date of this Agreement to the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement (as defined in the Registration Rights Agreement) shall have been effective with the SEC for 270 180 consecutive days, without the prior written consent of the Buyer, which shall not be unreasonably withheld, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) (A) any security (whether debt or equity) with conversion or exchange terms similar in nature to the conversion rights of the Preferred Stock, Stock or (B) any equity securities or securities convertible into, exchangeable for or otherwise entitling the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of such issuance (or below an average market price for a reasonable period prior to such issuance) or (C) any equity securities or securities which by their terms are convertible into, exchangeable for or otherwise entitle the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of conversion, exchange or other exercise thereof (or below an average market price for a reasonable period prior to such conversion, exchange or other exercise) acquisition (collectively, "Equity Discounted Securities"); PROVIDEDprovided, HOWEVERhowever, that nothing in this Section 4(i)(24(i) shall prohibit the Company from issuing securities (v) which are equity (not debt) securities issued in a single transaction for aggregate gross consideration of up to $5,000,000 and which (i) are purchased for or are convertible into or are exercisable for shares of Common Stock at a fixed price not more than 20% below the market price of the Common Stock on the date of issuance (or below an average market price for a reasonable period prior to such issuance), and (ii) are not subject to any future adjustment related to changes in the market price of the Common Stock pursuant to which additional shares or other securities may be issued, cash payments become due, or the conversion or exercise price of any convertible security may be reduced, other than pursuant to customary antidilution provisions for stock splits and similar events, (w) pursuant to compensation plans or arrangements for employees, directors, officers, advisers or consultants of the Company and in accordance with the terms of such plans as in effect as of the date of this Agreement or as thereafter approved by the Board of Directors of the CompanyAgreement, (xw) upon exercise of conversion, exchange, purchase or similar rights issued, granted or given by the Company and outstanding as of the date of this Agreement and disclosed in the SEC Reports or this Agreement, (yx) pursuant to a public offering underwritten on a firm commitment basis registered under the 1933 Act or Act, (zy) as part of a transaction involving a strategic alliance, acquisition of stock or assets, merger, collaboration, joint venture, partnership or other similar arrangement of the Company with another corporation, partnership or other business entity which is engaged in a business similar to, complementary to or related to the business of the Company, so long as in the case of this clause (zy) the Board of Directors by resolution duly adopted (and a copy of which shall be furnished to the Buyer promptly after adoption) determines that such issuance is fair to the holders of each class and series of capital stock of the Company and to the Buyer in respect of its equity interest in the Company that is represented by the Preferred Shares and the WarrantsWarrants or (z) through an investment banking or brokerage firm which, in the reasonable judgment of the Buyer, is generally regarded as being in the top two "tiers" of such firms determined on a national basis or on the basis of such firms principally involved with the Company's industry, including, without limitation, BancAmerica Robexxxxx Xxxpxxxx; Xxhmxx Xxxthers Inc.; NationsBanc Montxxxxxx Xxxurities LLC; Goldxxx, Xxchx & Xo; Willxxx Xxxxx & Xompany, L.L ; Credit Suisse First Boston Corporation; Smitx Xxxxxx Xxx.; Bear, Steaxxx & Xo. Inc.; BT Alex Xxxxx Xx.; Van Xxxxxx & Xompany; Salomon Brothers Inc.; J Bradford & Co.; Pacific Crest Securities Inc.; Dain Xxxxxxxx; Xxrgxx Xxxnxxx & Xo. Incorporated; and Hambxxxxx & Xuisx XXX. (3) Subject to the restrictions in Sections Section 4(i)(1) and 4(i)(2), during the period from the date of execution and delivery of this Agreement to the date which is 180 days after the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive daysDate, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) any Equity Discounted Securities without giving the Buyer the first right to acquire the Equity Discounted Securities on the same terms as the Equity Discounted Securities are to be offered to other investors; PROVIDED, HOWEVER, that this Section 4(i)(3) shall not apply to the offer or sale of Equity Securities by the Company in the transactions, and subject to the conditions, set forth in clauses (v), (w), (x), (y) and (z) of the proviso to the first sentence of Section 4(i)(2) above. The Company shall give notice to the Buyer of the detailed terms of the Equity Discounted Securities proposed to be issued and, promptly after being requested by the Buyer, such other information as reasonably requested by the Buyer. Such request by the Buyer shall be made not later than five Business Days after receipt of such notice from the Company. The Buyer may, by notice to the Company, exercise such right of first refusal at any time until the later of (x) ten Business Days after such notice from the Company to the Buyer and (y) five three Business Days after the Company provides such additional information as shall have been requested by the Buyer.

Certain Issuances of Securities. (1) Unless the Company obtains the Stockholder Shareholder Approval (as defined in Section 4(a)(7) of the Certificate Statement of DesignationsRights) or a waiver thereof from the Nasdaq, the Company will not issue any shares of Common Stock or shares of any other series of preferred stock or other securities convertible into, exchangeable for, for or otherwise entitling the holder to acquire, acquire shares of Common Stock which issuance would be subject to the requirements of Rule 4460(i) of the Stockholder Approval Rule Nasdaq (or any successor or replacement provision thereof or any similar provision of any other market on which the Common Stock is listed for trading) and which would be integrated with the sale of the Preferred Shares and issuance of the Warrants Option Shares to the Buyer or the issuance of Common Shares upon conversion of the Preferred Shares thereof or upon exercise of the Warrants and Additional Warrants for purposes of Rule 4460(i) (or any successor or replacement provision thereof or any similar provision of any other market on which the Stockholder Approval RuleCommon Stock is listed for trading). (2) During the period from the date of this Agreement to the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, the The Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) (A) any security (whether debt or equity) with conversion or exchange terms similar in nature to the conversion rights of the Preferred Stock, (B) any equity securities or securities convertible into, exchangeable for or otherwise entitling the holder to acquire, any Common Stock (collectively, "Equity Securities") at a price below the market price of the Common Stock on (i) during the period from the Closing Date to the date of such issuance on which the Registration Statement shall have been effective with the SEC for 60 consecutive days; and (or below an average market price for a reasonable ii) during the period prior to such issuance) or (C) any equity securities or securities which by their terms are convertible into, exchangeable for or otherwise entitle the holder to acquire, any Common Stock at a price below the market price of the Common Stock on from the date of conversionan Exercise Notice is given by the Company to the Buyer to the date which is 60 days after the Option Closing Date; provided, exchange or other exercise thereof (or below an average market price for a reasonable period prior to such conversion, exchange or other exercise) (collectively, "Equity Securities"); PROVIDED, HOWEVERhowever, that nothing in this Section 4(i)(25(i)(2) shall prohibit the Company from issuing securities (v) which are equity (not debt) securities issued in a single transaction for aggregate gross consideration of up to $5,000,000 and which (i) are purchased for or are convertible into or are exercisable for shares of Common Stock at a fixed price not more than 20% below the market price of the Common Stock on the date of issuance (or below an average market price for a reasonable period prior to such issuance), and (ii) are not subject to any future adjustment related to changes in the market price of the Common Stock pursuant to which additional shares or other securities may be issued, cash payments become due, or the conversion or exercise price of any convertible security may be reduced, other than pursuant to customary antidilution provisions for stock splits and similar events, (wx) pursuant to compensation plans or arrangements for employees, directors, officers, advisers or consultants of the Company and in accordance with the terms of such plans as in effect as of the date of this Agreement or as thereafter approved by the Board of Directors of the Company, (xy) upon exercise of conversion, exchange, purchase or similar rights issued, granted or given by the Company and outstanding as of the date of this Agreement and disclosed in the SEC Reports or this Agreement, (y) pursuant to a public offering underwritten on a firm commitment basis registered under the 1933 Act or (z) as part of a transaction involving a strategic alliance, acquisition of stock or assets, merger, collaboration, joint venture, partnership or other similar arrangement exercise of the Company with another corporation, partnership or other business entity which is engaged in a business similar to or related to the business of the Company, so long as in the case of this clause (z) the Board of Directors by resolution duly adopted (and a copy of which shall be furnished to the Buyer promptly after adoption) determines that such issuance is fair to the holders of each class and series of capital stock of the Company and to the Buyer in respect of its equity interest in the Company that is represented by the Preferred Shares Warrants and the Additional Warrants. (3) Subject to the restrictions in Sections 4(i)(1) and 4(i)(2), during the period from the date of execution and delivery of this Agreement to the date which is 180 days after the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) any Equity Securities without giving the Buyer the first right to acquire the Equity Securities on the same terms as the Equity Securities are to be offered to other investors; PROVIDED, HOWEVER, that this Section 4(i)(3) shall not apply to the offer or sale of Equity Securities by the Company in the transactions, and subject to the conditions, set forth in clauses (v), (w), (x), (y) and (z) of the proviso to the first sentence of Section 4(i)(2) above. The Company shall give notice to the Buyer of the detailed terms of the Equity Securities proposed to be issued and, promptly after being requested by the Buyer, such other information as reasonably requested by the Buyer. Such request by the Buyer shall be made not later than five Business Days after receipt of such notice from the Company. The Buyer may, by notice to the Company, exercise such right of first refusal at any time until the later of (x) ten Business Days after such notice from the Company to the Buyer and (y) five Business Days after the Company provides such additional information as shall have been requested by the Buyer.

Certain Issuances of Securities. (1) Unless the Company obtains the Stockholder Approval (as defined in the Certificate of DesignationsNote) or a waiver thereof from the Nasdaq, the Company will not issue any shares of Common Stock or shares of any other series of preferred stock promissory notes or other securities convertible into, exchangeable for, or otherwise entitling the holder to acquire, shares of Common Stock which would be subject to the requirements Rule 4460(i) of the Stockholder Approval Rule Nasdaq (or any successor or replacement provision thereof) and which would be integrated with the sale of the Preferred Shares Note and issuance of the Warrants to the Buyer or the issuance of Common Shares upon conversion of the Preferred Shares Note or upon exercise of the Warrants for purposes of the Stockholder Approval RuleRule 4460(i) of Nasdaq (or any successor or replacement provision thereof). (2) During the period from the date of this Agreement to the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, the The Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) (A) any security (whether debt or equity) with conversion or exchange terms similar in nature to the conversion rights of the Preferred Stock, (B) any equity securities or securities convertible into, exchangeable for for, or otherwise entitling the holder to acquire, any Common Stock at a price below during the market price of the Common Stock on period from the date of such issuance this Agreement to the later of (or below an average market price for a reasonable period prior to such issuancex) or (C) any equity securities or securities which by their terms are convertible into, exchangeable for or otherwise entitle the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of conversion, exchange or other exercise thereof which is 180 days after the Closing Date and (or below an average market price y) the date on which the Registration Statement shall have been effective and available for a reasonable period prior to such conversion, exchange or other exercise) (collectively, "Equity Securities")use by the Buyer for 90 consecutive days; PROVIDED, HOWEVER, that nothing in this Section 4(i)(2) shall prohibit the Company from issuing securities (v) which are equity (not debt) securities issued in a single transaction for aggregate gross consideration of up to $5,000,000 and which (i) are purchased for or are convertible into or are exercisable for shares of Common Stock at a fixed price not more than 20% below the market price of the Common Stock on the date of issuance (or below an average market price for a reasonable period prior to such issuance), and (ii) are not subject to any future adjustment related to changes in the market price of the Common Stock pursuant to which additional shares or other securities may be issued, cash payments become due, or the conversion or exercise price of any convertible security may be reduced, other than pursuant to customary antidilution provisions for stock splits and similar events, (w) pursuant to compensation plans or arrangements for employees, directors, officers, advisers or consultants of the Company and in accordance with the terms of such plans as in effect as of the date of this Agreement or as thereafter approved by the Board of Directors of the CompanyAgreement, (xii) upon exercise of conversion, exchange, purchase or similar rights issued, granted or given by the Company and outstanding as of the date of this Agreement and disclosed in the SEC Reports or this Agreement, (y) pursuant to a public offering underwritten on a firm commitment basis registered under the 1933 Act or (ziii) as part of a transaction involving a strategic alliance, acquisition of stock or assets, merger, collaboration, joint venture, partnership or other similar arrangement of the Company with another corporation, partnership or other business entity which is engaged (iv) in a business similar to or related to an underwritten public offering registered under the business of the Company, so long as in the case of this clause (z) the Board of Directors by resolution duly adopted (and a copy of which shall be furnished to the Buyer promptly after adoption) determines that such issuance is fair to the holders of each class and series of capital stock of the Company and to the Buyer in respect of its equity interest in the Company that is represented by the Preferred Shares and the Warrants1933 Act. (3) Subject to the restrictions in Sections 4(i)(1) and 4(i)(2), during the period from the date of execution and delivery of this Agreement to the date which is 180 days after the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) any Equity Securities without giving the Buyer the first right to acquire the Equity Securities on the same terms as the Equity Securities are to be offered to other investors; PROVIDED, HOWEVER, that this Section 4(i)(3) shall not apply to the offer or sale of Equity Securities by the Company in the transactions, and subject to the conditions, set forth in clauses (v), (w), (x), (y) and (z) of the proviso to the first sentence of Section 4(i)(2) above. The Company shall give notice to the Buyer of the detailed terms of the Equity Securities proposed to be issued and, promptly after being requested by the Buyer, such other information as reasonably requested by the Buyer. Such request by the Buyer shall be made not later than five Business Days after receipt of such notice from the Company. The Buyer may, by notice to the Company, exercise such right of first refusal at any time until the later of (x) ten Business Days after such notice from the Company to the Buyer and (y) five Business Days after the Company provides such additional information as shall have been requested by the Buyer.

Certain Issuances of Securities. (1i) Unless the Company obtains the Stockholder Shareholder Approval (as defined in the Certificate of DesignationsSection 6(i)(2) below) or a waiver thereof from the Nasdaq, the Company will not issue any shares of Common Stock or shares of any other series of preferred stock or other securities convertible into, exchangeable for, or otherwise entitling the holder to acquire, shares of Common Stock which would be subject to the requirements of the Stockholder Approval Rule and which would be integrated with the sale of the Preferred Shares and issuance of the Warrants to the Buyer or the issuance of Common Shares upon conversion of the Preferred Shares or upon exercise of the Warrants for purposes of the Stockholder Approval Rule. (2) During the period from the date of this Agreement to the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) (A) any security (whether debt or equity) with conversion or exchange terms similar in nature to the conversion rights of the Preferred Stock, (B) any equity securities or securities convertible into, exchangeable for or otherwise entitling the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of such issuance (or below an average market price for a reasonable period prior to such issuance) or (C) any equity securities or securities which by their terms are convertible into, exchangeable for or otherwise entitle the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of conversion, exchange or other exercise thereof (or below an average market price for a reasonable period prior to such conversion, exchange or other exercise) (collectively, "Equity Securities"); PROVIDED, HOWEVER, that nothing in this Section 4(i)(2) shall prohibit the Company from issuing securities (v) which are equity (not debt) securities issued in a single transaction for aggregate gross consideration of up to $5,000,000 and which (i) are purchased for or are convertible into or are exercisable for acquire shares of Common Stock at a fixed price not more than 20% below which issuance would be subject to Rule 4460(i) of the Nasdaq (or any successor or replacement provision thereof or any similar provision of any other market price of on which the Common Stock on is listed for trading) and which would be integrated with the date sale of the Initial Shares to the Buyers, or the issuance of Adjustment Shares or Warrant Shares to the Buyers, or the sale and issuance of the Series B Stock and the common stock purchase warrants issued in connection therewith (including the issuance of shares of Common Stock upon conversion of the Series B Stock or in payment of dividends thereof, and upon exercise of the aforesaid common stock purchase warrants), for purposes of Rule 4460(i) (or below an average any successor or replacement provision thereof or any similar provision of any other market price on which the Common Stock is listed for a reasonable period prior to such issuancetrading), and . (ii) are not subject For purposes of this Agreement, "Shareholder Approval" means the approval by a majority of the votes cast by the holders of shares of Common Stock (in person or by proxy) at a meeting of the shareholders of the Company (duly convened at which a quorum was present), or a written consent of holders of shares of Common Stock entitled to such number of votes given without a meeting, of the issuance by the Company of 20% or more of the outstanding Common Stock of the Company for less than the greater of the book or market value of such Common Stock, taking into account all issuances of Common Stock to the Buyers on the Closing Date, on all Adjustment Dates, and upon the exercise of the Warrants, as and to the extent required under Rule 4460(i) of Nasdaq as in effect from time to time or any future adjustment related to changes in the successor or replacement provision thereof or of any similar provision of any other market price of on which the Common Stock pursuant to which additional shares or other securities may be issued, cash payments become due, or the conversion or exercise price of any convertible security may be reduced, other than pursuant to customary antidilution provisions is listed for stock splits and similar events, (w) pursuant to compensation plans or arrangements for employees, directors, officers, advisers or consultants of the Company and in accordance with the terms of such plans as in effect as of the date of this Agreement or as thereafter approved by the Board of Directors of the Company, (x) upon exercise of conversion, exchange, purchase or similar rights issued, granted or given by the Company and outstanding as of the date of this Agreement and disclosed in the SEC Reports or this Agreement, (y) pursuant to a public offering underwritten on a firm commitment basis registered under the 1933 Act or (z) as part of a transaction involving a strategic alliance, acquisition of stock or assets, merger, collaboration, joint venture, partnership or other similar arrangement of the Company with another corporation, partnership or other business entity which is engaged in a business similar to or related to the business of the Company, so long as in the case of this clause (z) the Board of Directors by resolution duly adopted (and a copy of which shall be furnished to the Buyer promptly after adoption) determines that such issuance is fair to the holders of each class and series of capital stock of the Company and to the Buyer in respect of its equity interest in the Company that is represented by the Preferred Shares and the Warrantstrading. (3) Subject to the restrictions in Sections 4(i)(1) and 4(i)(2), during the period from the date of execution and delivery of this Agreement to the date which is 180 days after the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) any Equity Securities without giving the Buyer the first right to acquire the Equity Securities on the same terms as the Equity Securities are to be offered to other investors; PROVIDED, HOWEVER, that this Section 4(i)(3) shall not apply to the offer or sale of Equity Securities by the Company in the transactions, and subject to the conditions, set forth in clauses (v), (w), (x), (y) and (z) of the proviso to the first sentence of Section 4(i)(2) above. The Company shall give notice to the Buyer of the detailed terms of the Equity Securities proposed to be issued and, promptly after being requested by the Buyer, such other information as reasonably requested by the Buyer. Such request by the Buyer shall be made not later than five Business Days after receipt of such notice from the Company. The Buyer may, by notice to the Company, exercise such right of first refusal at any time until the later of (x) ten Business Days after such notice from the Company to the Buyer and (y) five Business Days after the Company provides such additional information as shall have been requested by the Buyer.

Certain Issuances of Securities. (1) Unless the Company obtains the Stockholder Approval (as defined in the Certificate of Designations) or a waiver thereof from the Nasdaq, the Company will not issue any shares of Common Stock or shares of any other series of preferred stock or other securities convertible into, exchangeable for, or otherwise entitling the holder to acquire, shares of Common Stock which would be subject to the requirements of the Stockholder Approval Rule and which would be integrated with the sale of the Preferred Shares and issuance of the Warrants to the Buyer or the issuance of Common Shares upon conversion of the Preferred Shares or upon exercise of the Warrants for purposes of the Stockholder Approval Rule. (2) During the period from the date of this Agreement to the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) (A) any security (whether debt or equity) with conversion or exchange terms similar in nature to the conversion rights of the Preferred Stock, Stock or (B) any equity securities or securities convertible into, exchangeable for or otherwise entitling the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of such issuance (or below an average market price for a reasonable period prior to such issuance) or (C) any equity securities or securities which by their terms are convertible into, exchangeable for or otherwise entitle the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of conversion, exchange or other exercise thereof (or below an average market price for a reasonable period prior to such issuance, conversion, exchange or other exercise) (collectively, "Equity Securities"); PROVIDEDprovided, HOWEVERhowever, that nothing in this Section 4(i)(2) shall prohibit the Company from issuing securities (v) which are equity (not debt) securities issued in a single transaction for aggregate gross consideration of up to $5,000,000 and which (i) are purchased for or are convertible into or are exercisable for shares of Common Stock at a fixed price not more than 20% below the market price of the Common Stock on the date of issuance (or below an average market price for a reasonable period prior to such issuance), and (ii) are not subject to any future adjustment related to changes in the market price of the Common Stock pursuant to which additional shares or other securities may be issued, cash payments become due, or the conversion or exercise price of any convertible security may be reduced, other than pursuant to customary antidilution provisions for stock splits and similar events, (w) pursuant to compensation plans or arrangements for employees, directors, officers, advisers or consultants of the Company and in accordance with the terms of such plans as in effect as of the date of this Agreement or as thereafter approved by the Board of Directors of the CompanyAgreement, (x) upon exercise of conversion, exchange, purchase or similar rights issued, granted or given by the Company and outstanding as of the date of this Agreement and disclosed in the SEC Reports or this Agreement, (y) pursuant to a public offering underwritten on a firm commitment basis registered under the 1933 Act or (z) as part of a transaction involving a strategic alliance, acquisition of stock or assets, merger, collaboration, joint venture, partnership or other similar arrangement of the Company with another corporation, partnership or other business entity which is engaged in a business similar to or related to the business of the Company, so long as in the case of this clause (z) the Board of Directors by resolution duly adopted (and a copy of which shall be furnished to the Buyer promptly after adoption) determines that such issuance is fair to the holders of each class and series of capital stock of the Company and to the Buyer in respect of its equity interest in the Company that is represented by the Preferred Shares and the Warrants. (3) Subject to the restrictions in Sections 4(i)(1) and 4(i)(2), during the period from the date of execution and delivery of this Agreement to the date which is 180 days after the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive daysDate, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) any Equity Securities without giving the Buyer the first right to acquire the Equity Securities on the same terms as the Equity Securities are to be offered to other investors; PROVIDEDprovided, HOWEVERhowever, that this Section 4(i)(3) shall not apply to the offer or sale of Equity Securities by the Company in the transactions, and subject to the conditions, set forth in clauses (v), (w), (x), (y) and (z) of the proviso to the first sentence of Section 4(i)(2) above. The Company shall give notice to the Buyer of the detailed terms of the Equity Securities proposed to be issued and, promptly after being requested by the Buyer, such other information as reasonably requested by the Buyer. Such request by the Buyer shall be made not later than five Business Days after receipt of such notice from the Company. The Buyer may, by notice to the Company, exercise such right of first refusal at any time until the later of (x) ten 30 Business Days after such notice from the Company to the Buyer and (y) five 15 Business Days after the Company provides such additional information as shall have been requested by the Buyer; provided, however, that if the Company has theretofore complied in good faith with any such request for additional information, the Buyer must exercise such right not later than 45 Business Days after such notice from the Company to the Buyer.

Certain Issuances of Securities. (1) Unless If the transactions contemplated by this Agreement are subject to the rules proposed to be adopted by Nasdaq which would require stockholder approval of certain transactions (the "Nasdaq Stockholder Approval Rules"), then unless the Company obtains the Stockholder Approval (as defined in the Certificate of Designations) or a waiver thereof from the Nasdaq, the Company will not issue any shares of Common Stock or shares of any other series of preferred stock or other securities convertible into, exchangeable for, for or otherwise entitling the holder to acquire, acquire shares of Common Stock which would be subject to the requirements of the Stockholder Approval Rule Nasdaq (or any successor or replacement provision thereof) and which would be integrated with the sale of the Preferred Shares and issuance of the Warrants to the Buyer or the issuance of Common Shares upon conversion of the Preferred Shares or upon exercise of the Warrants thereof Stockholder Approval Rules for purposes of the Nasdaq Stockholder Approval RuleRules (or any successor or replacement provision thereof). (2) During the period from the date of this Agreement to the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement (as defined in the Registration Rights Agreement) shall have been effective with the SEC for 270 consecutive days, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) (A) any security (whether debt or equity) with conversion or exchange terms similar in nature to the conversion rights of the Preferred Stock, (B) any equity securities or securities convertible into, exchangeable for or otherwise entitling the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of such issuance (or below an average market price for a reasonable period prior to such issuance) or (C) any equity securities or securities which by their terms are convertible into, exchangeable for or otherwise entitle the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of conversion, exchange or other exercise thereof (or below an average market price for a reasonable period prior to such conversion, exchange or other exercise) (collectively, "Equity Securities"); PROVIDED, HOWEVER, that nothing in this Section 4(i)(2) shall prohibit the Company from issuing securities (v) which are equity (not debt) securities issued in a single transaction for aggregate gross consideration of up to $5,000,000 and which (i) are purchased for or are convertible into or are exercisable for shares of Common Stock at a fixed price not more than 20% below the market price of the Common Stock on the date of issuance (or below an average market price for a reasonable period prior to such issuance), and (ii) are not subject to any future adjustment related to changes in the market price of the Common Stock pursuant to which additional shares or other securities may be issued, cash payments become due, or the conversion or exercise price of any convertible security may be reduced, other than pursuant to customary antidilution provisions for stock splits and similar events, (w) pursuant to compensation plans or arrangements for employees, directors, officers, advisers or consultants of the Company and in accordance with the terms of such plans as in effect as of the date of this Agreement or as thereafter approved by the Board of Directors of the Company, (x) upon exercise of conversion, exchange, purchase or similar rights issued, granted or given by the Company and outstanding as of the date of this Agreement and disclosed in the SEC Reports or this Agreement, (y) pursuant to a public offering underwritten on a firm commitment basis registered under the 1933 Act or (z) as part of a transaction involving a strategic alliance, acquisition of stock or assets, merger, collaboration, joint venture, partnership or other similar arrangement of the Company with another corporation, partnership or other business entity which is engaged in a business similar to or related to the business of the Company, so long as in the case of this clause (z) the Board of Directors by resolution duly adopted (and a copy of which shall be furnished to the Buyer promptly after adoption) determines that such issuance is fair to the holders of each class and series of capital stock of the Company and to the Buyer in respect of its equity interest in the Company that is represented by the Preferred Shares and the Warrants. (3) Subject to the restrictions in Sections 4(i)(1) and 4(i)(2), during the period from the date of execution and delivery of this Agreement to the date which is 180 days after the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 60 consecutive days, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) any equity securities or securities convertible into, exchangeable for or otherwise entitling the holder to acquire, any Common Stock (collectively, "Equity Securities Securities") at a price below the market price of the Common Stock without (a) giving the Buyer the first right to acquire the Equity Securities on the same terms as at which the Equity Securities are to be offered to other investorsinvestors (and on terms which permit the Buyer to purchase a pro rata portion of such Equity Securities, based on the portion of the shares of Preferred Stock purchased by the Buyer pursuant to this Agreement), and (b) obtaining the consent of the holders of a majority of the shares of the Preferred Shares which consent will not unreasonably be withheld; PROVIDEDprovided, HOWEVERhowever, that nothing in this Section 4(i)(3-------- ------- 4 (i) (2) shall not apply to the offer or sale of Equity Securities by prohibit the Company in the transactions, and subject to the conditions, set forth in clauses (v), (w), from issuing securities (x)) pursuant to compensation plans for employees, directors, officers, advisers or consultants of the Company and in accordance with the terms of such plans as in effect as of the date of this Agreement, (y) upon exercise of conversion, exchange, purchase or similar rights issued, granted or given by the Company and outstanding as of the date of this Agreement or (z) in connection with the acquisition of all or substantially all the proviso to the first sentence assets or stock of Section 4(i)(2) above. The Company shall give notice to the Buyer of the detailed terms of the Equity Securities proposed to be issued and, promptly after being requested by the Buyer, such other information as reasonably requested by the Buyer. Such request by the Buyer shall be made not later than five Business Days after receipt of such notice from the Company. The Buyer may, by notice to the Company, exercise such right of first refusal at any time until the later of (x) ten Business Days after such notice from the Company to the Buyer and (y) five Business Days after the Company provides such additional information as shall have been requested by the Buyeranother entity.

Certain Issuances of Securities. (1) Unless the Company obtains the Stockholder Approval (as defined in the Certificate of Designations) or a waiver thereof from the NasdaqNasdaq Stock Market, the Company will not issue any shares of Common Stock or shares of any other series of preferred stock or other securities convertible into, exchangeable for, or otherwise entitling the holder to acquire, shares of Common Stock which would be subject to the requirements of Section 4460(i)(1)(D) of the Stockholder Approval Rule rules of the NASD (or any successor or replacement provision thereof or any similar provision of any other securities market or securities exchange on which the Common Stock is listed at the time of determination) and which would be integrated with the issuance of the Warrants or the sale of the Preferred Shares and issuance of the Warrants to the Buyer or the issuance of Common Shares upon conversion of or exercise thereof, as the Preferred Shares case may be, or upon exercise of the Warrants for purposes of such Section 4460(i)(1)(D) (or any successor or replacement provision thereof or any similar provision of any other securities market or securities exchange on which the Stockholder Approval RuleCommon Stock is listed at the time of determination). (2) During the period from the date of execution and delivery of this Agreement by the parties hereto to the later of (i) the date which is one year 90 days after the Initial Closing Date and (ii) during the period from the Second Closing Date, if any, to the date on which is 90 days thereafter, without the Registration Statement shall have been effective with prior written consent of the SEC for 270 consecutive days, Majority Buyers the Company shall not offer, sell, contract to sell or issue (or engage any person Person to assist the Company in taking any such action) (A) any security (whether debt or equity) with conversion or exchange terms similar in nature to the conversion rights of the Preferred Stock, (B) any equity securities or securities convertible into, exchangeable for or otherwise entitling the holder to acquire, any Common Stock Equity Securities at a price below the market price of the Common Stock on the date of such issuance (or below an average market price for a reasonable period prior to such issuance) or (C) any equity securities or securities which by their terms are convertible intoStock; provided, exchangeable for or otherwise entitle the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of conversion, exchange or other exercise thereof (or below an average market price for a reasonable period prior to such conversion, exchange or other exercise) (collectively, "Equity Securities"); PROVIDED, HOWEVERhowever, that nothing in this Section 4(i)(25(h)(2) shall prohibit the Company from issuing securities (v) which are equity (not debt) securities issued in a single transaction for aggregate gross consideration of up to $5,000,000 and which (i) are purchased for or are convertible into or are exercisable for shares of Common Stock at a fixed price not more than 20% below the market price of the Common Stock on the date of issuance (or below an average market price for a reasonable period prior to such issuance), and (ii) are not subject to any future adjustment related to changes in the market price of the Common Stock pursuant to which additional shares or other securities may be issued, cash payments become due, or the conversion or exercise price of any convertible security may be reduced, other than pursuant to customary antidilution provisions for stock splits and similar events, (wx) pursuant to compensation plans or arrangements for employees, directors, officers, advisers or consultants of the Company and in accordance with the terms of such plans as in effect as of the date of this Agreement or as thereafter approved by the Board of Directors of the CompanyAgreement, (xy) upon exercise of conversion, exchange, purchase or similar rights issued, granted or given by the Company and outstanding as of the date of this Agreement and disclosed in the SEC Reports or this Agreement, (yz) pursuant to a public offering made directly by the Company on a basis similar to the offerings made pursuant to the 1997 Registration Statements or underwritten on a firm commitment basis and, in each such case, registered under the 1933 Act or (z) as part of a transaction involving a strategic alliance, acquisition of stock or assets, merger, collaboration, joint venture, partnership or other similar arrangement of the Company with another corporation, partnership or other business entity which is engaged in a business similar to or related to the business of the Company, so long as in the case of this clause (z) the Board of Directors by resolution duly adopted (and a copy of which shall be furnished to the Buyer promptly after adoption) determines that such issuance is fair to the holders of each class and series of capital stock of the Company and to the Buyer in respect of its equity interest in the Company that is represented by the Preferred Shares and the WarrantsXxx. (3) Subject to the restrictions in Sections 4(i)(1) and 4(i)(2), during the During each period from the date of execution and delivery of this Agreement the Company gives a Purchase Option Notice to the date which is 180 days after the later Closing Date with respect to such Purchase Option Notice, the Company shall not without the prior written consent of the Majority Buyers (a) exercise any option to sell to Fletxxxx xxxly issued shares of Common Stock pursuant to the Fletxxxx Xxxck Purchase Agreement unless (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC and available for 270 use by the selling stockholders named therein for 90 consecutive daysdays and (ii) the arithmetic average of the Market Price of the Common Stock for any period of twenty consecutive Trading Days beginning on or after the period of 90 consecutive days referred to in the immediately preceding clause (ii) shall have been at least $8.00 per share and the Market Price of the Common Stock on the Trading Day immediately preceding such exercise is at least $8.00 per share (subject to equitable adjustment for stock splits, stock dividends, recapitalizations, reorganizations and similar changes affecting the Common Stock from time to time after the date of this Agreement on terms reasonably acceptable to the Majority Buyers) or (b) enter into any other agreement or arrangement similar to the Fletxxxx Xxxck Purchase Agreement, or exercise any similar right, to put shares of Common Stock to any third party if such shares may be freely resold to the public without registration, or are entitled to registration rights under, the Company shall not offer1933 Act during such six-month period; provided, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) any Equity Securities without giving the Buyer the first right to acquire the Equity Securities on the same terms as the Equity Securities are to be offered to other investors; PROVIDED, HOWEVERhowever, that this Section 4(i)(35(h)(3) shall not apply to the offer or sale restrict sales of Equity Securities shares of Common Stock by the Company in the transactions, and subject pursuant to the conditionsStock Purchase Agreement, set forth in clauses (v)dated as of September 23, (w)1996, (x), (y) and (z) of the proviso to the first sentence of Section 4(i)(2) above. The Company shall give notice to the Buyer of the detailed terms of the Equity Securities proposed to be issued and, promptly after being requested by the Buyer, such other information as reasonably requested by the Buyer. Such request by the Buyer shall be made not later than five Business Days after receipt of such notice from the Company. The Buyer may, by notice to the Company, exercise such right of first refusal at any time until the later of (x) ten Business Days after such notice from between the Company to the Buyer and (y) five Business Days after the Company provides such additional information as shall have been requested by the BuyerLIPHA, Lyonnaise Industrielle Pharmaceutique s.a.

Certain Issuances of Securities. (1) Unless the Company obtains the Stockholder Shareholder Approval (as defined in Section 4(a)(7) of the Certificate Statement of DesignationsRights) or a waiver thereof from the Nasdaq, the Company will not issue any shares of Common Stock or shares of any other series of preferred stock or other securities convertible into, exchangeable for, for or otherwise entitling the holder to acquire, acquire shares of Common Stock which issuance would be subject to the requirements of Rule 4460(i) of the Stockholder Approval Rule Nasdaq (or any successor or replacement provision thereof or any similar provision of any other market on which the Common Stock is listed for trading) and which would be integrated with the sale of the Preferred Shares and issuance of the Warrants to the Buyer or the issuance of Common Shares upon conversion of the Preferred Shares thereof or upon exercise of the Warrants for purposes of Rule 4460(i) (or any successor or replacement provision thereof or any similar provision of any other market on which the Stockholder Approval RuleCommon Stock is listed for trading). (2) During the period from the date of this Agreement to the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, the The Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) (A) any security (whether debt or equity) with conversion or exchange terms similar in nature to the conversion rights of the Preferred Stock, (B) any equity securities or securities convertible into, exchangeable for or otherwise entitling the holder to acquire, any Common Stock (collectively, "Equity Securities") at a price below the market price of the Common Stock on during the period from the Closing Date to the date of such issuance (or below an average market price on which the Registration Statement shall have been effective with the SEC for a reasonable period prior to such issuance) or (C) any equity securities or securities which by their terms are convertible into60 consecutive days; provided, exchangeable for or otherwise entitle the holder to acquire, any Common Stock at a price below the market price of the Common Stock on the date of conversion, exchange or other exercise thereof (or below an average market price for a reasonable period prior to such conversion, exchange or other exercise) (collectively, "Equity Securities"); PROVIDED, HOWEVERhowever, that nothing in this Section 4(i)(2) shall prohibit the Company from issuing securities (v) which are equity (not debt) securities issued in a single transaction for aggregate gross consideration of up to $5,000,000 and which (i) are purchased for or are convertible into or are exercisable for shares of Common Stock at a fixed price not more than 20% below the market price of the Common Stock on the date of issuance (or below an average market price for a reasonable period prior to such issuance), and (ii) are not subject to any future adjustment related to changes in the market price of the Common Stock pursuant to which additional shares or other securities may be issued, cash payments become due, or the conversion or exercise price of any convertible security may be reduced, other than pursuant to customary antidilution provisions for stock splits and similar events, (wx) pursuant to compensation plans or arrangements for employees, directors, officers, advisers or consultants of the Company and in accordance with the terms of such plans as in effect as of the date of this Agreement or as thereafter approved by the Board of Directors of the Company, (xy) upon exercise of conversion, exchange, purchase or similar rights issued, granted or given by the Company and outstanding as of the date of this Agreement and disclosed in the SEC Reports or this Agreement, (y) pursuant to a public offering underwritten on a firm commitment basis registered under the 1933 Act or (z) as part exercise of a transaction involving a strategic alliance, acquisition of stock or assets, merger, collaboration, joint venture, partnership or other similar arrangement of the Company with another corporation, partnership or other business entity which is engaged in a business similar to or related to the business of the Company, so long as in the case of this clause (z) the Board of Directors by resolution duly adopted (and a copy of which shall be furnished to the Buyer promptly after adoption) determines that such issuance is fair to the holders of each class and series of capital stock of the Company and to the Buyer in respect of its equity interest in the Company that is represented by the Preferred Shares and the Warrants. (3) Subject to the restrictions in Sections 4(i)(1) and 4(i)(2), during the period from the date of execution and delivery of this Agreement to the date which is 180 days after the later of (i) the date which is one year after the Closing Date and (ii) the date on which the Registration Statement shall have been effective with the SEC for 270 consecutive days, the Company shall not offer, sell, contract to sell or issue (or engage any person to assist the Company in taking any such action) any Equity Securities without giving the Buyer the first right to acquire the Equity Securities on the same terms as the Equity Securities are to be offered to other investors; PROVIDED, HOWEVER, that this Section 4(i)(3) shall not apply to the offer or sale of Equity Securities by the Company in the transactions, and subject to the conditions, set forth in clauses (v), (w), (x), (y) and (z) of the proviso to the first sentence of Section 4(i)(2) above. The Company shall give notice to the Buyer of the detailed terms of the Equity Securities proposed to be issued and, promptly after being requested by the Buyer, such other information as reasonably requested by the Buyer. Such request by the Buyer shall be made not later than five Business Days after receipt of such notice from the Company. The Buyer may, by notice to the Company, exercise such right of first refusal at any time until the later of (x) ten Business Days after such notice from the Company to the Buyer and (y) five Business Days after the Company provides such additional information as shall have been requested by the Buyer.