Common use of Excluded Securities Clause in Contracts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Excluded Securities. The rights of first offer established by this Section 3 shall have no application to any of the following Equity Securities: (i) up to 100,441,177 the issuance or sale of shares of Borrower's Common Stock, or securities exercisable for or convertible into shares of Common Stock, and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued to employees, officers, directors or strategic partners ofdirectors, or consultants, advisors, lenders, vendors or lessors to, the Company or consultants and service providers of Borrower; provided any of its subsidiaries pursuant to the Company's stock incentive plans or pursuant to other similar arrangements that are such issuance is approved by the Board of Directors (including the representatives of the Investors)Borrower; (ii) [Intentionally Omitted]shares of Borrower's Common Stock or preferred stock issued or issuable pursuant to any rights, agreements, options, warrants or convertible securities outstanding on the date hereof; and any stock issued pursuant to such rights or agreements granted after the date hereof; provided that the preemptive right established by this Section 3.01 was complied with or was not applicable ------------ pursuant to the terms of this Section 3.01(d) with respect to the initial sale --------------- or grant by Borrower of such right or agreement; (iii) any shares of Borrower's Common Stock issued pursuant to a bona fide public offering registered under the Act; (iv) issuances of securities in connection with a bona fide business acquisition of or by Borrower, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise; (v) shares of Borrower's Common Stock or preferred stock issued in connection with any stock split, stock dividend or dividend, recapitalization and the like by the CompanyBorrower following approval by Borrower's board of directors; (ivvi) any Equity Securities Newly Issued Shares that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis Borrower pursuant to a registration statement filed under the Securities Act; (vvii) any Equity Securities shares of Borrower's Common Stock or preferred stock issued pursuant to any rights leasing entities or agreements outstanding as of the date of this Agreementfinancial institutions in connection with bona fide arm's length commercial leasing or borrowing transactions, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A theretoreal property lessors; or (viiviii) any Equity Securities issued issuances of shares of Borrower's Common Stock or preferred stock to strategic partners, pursuant to the transactions described in Section 2.5.B(iii)(d) agreements approved by Borrower's board of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreementdirectors.

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

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

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

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

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

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

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up Up to 100,441,177 an aggregate of six million seven hundred seventy-nine thousand four hundred ninety-one (6,779,491) shares of Common Stock, and/or Stock (including shares of Common Stock underlying options, warrants or other Common Stock stock purchase rights and rights) issued or to be issued after the Common Stock issued pursuant to such options, warrants or other rights Original Issue Date (as adjusted for any stock dividends, combinations, splits, recapitalizations and defined in the like), issued Company’s Certificate of Incorporation) to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization subdivision by the CompanyCompany approved by the Board of Directors; (ivd) shares of Common Stock issued upon conversion of shares of the Company’s Preferred Stock; (e) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act;; and (vf) up to an aggregate of one million (1,000,000) (or such greater amount as may be approved by the Board of Directors, including both of the Series B Directors, or by holders of a majority of the then outstanding shares of Preferred Stock, including at least fifty-five percent (55%) of the then outstanding shares of Series B Stock) shares of (i) any Equity Securities issued pursuant to any rights equipment loan or agreements outstanding as of the date of this Agreementleasing arrangement, real property leasing arrangement, or options debt financing from a bank or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement similar financial or lending institution, (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (viiii) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination, and (iii) any Equity Securities issued in connection with strategic transactions involving the transactions described Company and other entities, including (A) joint ventures, strategic alliances, manufacturing, marketing or distribution arrangements or (B) technology transfer or development arrangements, in Section 2.5.B(iii)(d) each case, provided that such transaction is approved by the Board of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementDirectors.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 an aggregate amount of 18,492,425 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (rights) as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), like issued or to be issued after the Series E Original Issue Date (as defined in the Company’s Certificate of Incorporation as amended) to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors advisors to, the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors; (b) stock issued pursuant to any warrants, options, or other convertible securities outstanding as of the date of this Agreement or as a result of the conversion of stock underlying any such options or warrants; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors (including the representatives of the Investorsat least two (2) Preferred Directors); (iid) [Intentionally Omitted]; (iii) any shares of Common Stock or Preferred Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) shares of Common Stock issued upon conversion of the Shares, the Series A Stock, the Series D-2 Stock, the Series D-3 Stock, the Series D-4 Stock and Series D-5 Stock; (f) any Equity Securities issued pursuant to any equipment leasing or loan arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors (including at least two (2) Preferred Directors); (g) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities ActQualified Public Offering; (v) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (viih) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of Series E Purchase Agreement, pursuant to the Credit Exchange Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Series E Purchase Agreement) and permanently reduce the Commitments Exchange Agreement (as defined in the Credit recital to this Agreement) ), each as in accordance with Section 2.5.C. effect as of the Credit Agreementdate hereof; and (i) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of Equity Securities in connection with such strategic transactions and the issuance of shares therein, has been approved by the Company’s Board of Directors, including either the Series D Designee or the Series E Designee.

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

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

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

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

Excluded Securities. The rights of first offer established by under this Section 3 6 shall have no application not apply to any of the following Equity Securities: (i) up to 100,441,177 shares of Common Stock, and/or options, warrants or other Common Stock purchase rights and the Common Stock securities issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued to employees, officers, directors or strategic partners of, or consultants, advisors, lenders, vendors or lessors to, by the Company or any of its subsidiaries pursuant to Subsidiaries at any time in compliance with this Agreement (the Company's stock incentive plans or pursuant to other similar arrangements that are approved by “Excluded Securities”): (i) Class A Shares issued upon the Board conversion of Directors (including any Class B Shares in accordance with the representatives of the Investors)terms thereof; (ii) [Intentionally Omitted]non-voting securities of the Company, including any options, warrants or other securities convertible into or exercisable or exchangeable for any such non-voting securities, issued pursuant to the Management Long Term Compensation Plan, in an aggregate amount (inclusive of any such securities that have been converted into, exercised or exchanged for voting securities) at any time outstanding not to exceed 7.5% (on an as converted, exercised or exchanged basis) of the Company’s outstanding Common Shares as of the date hereof (taking into account any stock dividends or distributions, stock splits, reclassifications, recapitalizations or other subdivisions or combinations of such Common Shares); (iii) any shares of Common Stock Shares issued in connection with as a dividend on Common Shares or upon any stock split, stock dividend or recapitalization by the Company; (iv) securities issued in connection with a consolidation, merger, purchase of all or substantially all of the assets or similar transaction involving the Company, or any Equity Securities of its Subsidiaries, and a business entity that are issued by is not an Affiliate (disregarding clauses (i)(y) and (ii) of the definition of such term) of the Company or one of the Principal Stockholders, in each case to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Actextent that such transaction is conducted in compliance with this Agreement; (v) with the approval of a majority of the Board and, for so long as any Equity Securities issued Principal Stockholder’s Proportionate Percentage is at least 5%, the approval of at least one Director nominated by such Principal Stockholder (to the extent such Principal Stockholder has the right to nominate a Director pursuant to Section 2 hereof), securities issued as an equity kicker to one or more Persons to whom the Company or one or more of its Subsidiaries is becoming Indebted in connection with the incurrence of such Indebtedness by the Company or any rights or agreements outstanding as of the date of its Subsidiaries, provided that such incurrence otherwise occurs in compliance with this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions provided that (A) to the Purchase Agreement extent any Principal Stockholder or Partial Rights Transferee exercises its Preemptive Rights to such Indebtedness, it shall be entitled to Preemptive Rights pursuant to this Section 6 (without respect to this Section 6(b)(v)) with respect to such securities issued as an equity kicker, and (B) the effect of such issuance does not discriminate against any Principal Stockholder (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreementhaving a different adverse impact on any Principal Stockholder based on such Principal Stockholder’s identity or any of its attributes); (vi) with the approval of a majority of the Board and, for so long as any Principal Stockholder’s Proportionate Percentage is at least 5%, the approval of at least one Director nominated by such Principal Stockholder (to the extent such Principal Stockholder has the right to nominate a Director pursuant to Section 2 hereof), and to the extent that the Company concludes that an issuance is appropriate and desirable and in order to further the business relationship with a customer of the Company or one of its Subsidiaries, Common Stock Shares issued on customary terms to such customer, provided that such customer is not an Affiliate (disregarding clauses (i)(y) and warrants (and Common Stock issuable upon exercise ii) of the definition of such warrantsterm) issued by of the Company pursuant to or one of the Common Stock Purchase Agreement dated as Principal Stockholders, provided further that the effect of October 30, 2002, such issuance does not discriminate against any Principal Stockholder (including by and between the Company and the entities listed having a different adverse impact on Exhibit A thereto; orany Principal Stockholder based on such Principal Stockholder’s identity or any of its attributes); (vii) any Equity Securities securities issued pursuant by a Subsidiary of the Company to the transactions described in Section 2.5.B(iii)(d) Company or another Subsidiary of the Credit Agreement if Company; and (viii) securities issued upon the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. exercise, conversion or exchange of any options, warrants or any other derivative securities of the Credit AgreementCompany or any of its Subsidiaries issued in compliance with (or not otherwise in violation of) this Section 6.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 3,100,000 shares (or such greater number of shares as may be approved in writing by the holders of a majority of the then outstanding shares of Series Preferred (as defined in the Company's Certificate of Incorporation), voting together as a single class) of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (rights), as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued or to be issued after the Original Issue Date (as defined in the Company's Certificate of Incorporation) to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors; (iiic) any shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ivd) shares of Common Stock issued upon conversion of the Shares; (e) any Equity Securities issued pursuant to any equipment leasing or loan arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors; (f) any Equity Securities that are issued by the Company pursuant to the Company's Qualified Offering; (g) up to 200,000 shares (or such greater number of shares as may be approved in writing by the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (v) any Equity Securities issued pursuant to any rights or agreements outstanding as majority of the date then outstanding shares of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans Preferred (as defined in the Credit AgreementCompany's Certificate of Incorporation), voting together as a single class) of Equity Securities issued after the Original Issue Date in connection with strategic transactions involving the Company and permanently reduce other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements, or (ii) technology transfer or development arrangements; provided that such strategic transactions and the Commitments issuance of shares therein, has been approved by the Company's Board of Directors; and (as defined in h) any Series B Stock issued pursuant to the Credit Agreement) in accordance with Section 2.5.C. of the Credit Purchase Agreement.

Excluded Securities. The rights right of first offer established by this Section 3 4 shall have no application to any of the following Equity Securities: (a) (i) up to 100,441,177 an aggregate amount of 10,000,000 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors Directors, or (including ii) stock or options of any class or series issued pursuant to the representatives Amended and Restated Stock Option Agreements dated as of May 26, 1999 by and between the Investors)Company and each of Thomxx X. Xxxxx, Xxvix X. Xxxxx, Xxchxxxx Xxxxx, Xxdrxx Xxxxxxxx, Xxffxxx Xxxxxx, Xxul Xxxxxxxx xxx Thomxx Xxxxxx; (iib) [Intentionally Omitted]any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; (iiic) any shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ivd) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities outstanding on the date hereof or with respect to which the right of first offer has previously been offered; (e) the issuance of securities in connection debt financings, credit agreements or issuance of debt securities (including the issuance of options, warrants or other rights to acquire securities of the Company to underwriters in connection with the placement of such debt securities) upon the express approval of the Board of Directors; (f) any Equity Securities issued pursuant to any equipment leasing arrangement, the sale by the Company of capacity on a satellite owned or controlled by the Company or their Affiliates upon the express approval of the Board of Directors; and (g) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (v) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.

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

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

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 an aggregate of 9,096,778 shares (provided, however, that such number shall be increased to reflect any shares of Common StockStock (i) not actually issued pursuant to the rights, agreements, option or warrants (“Unexercised Options”) as a result of the termination of such Unexercised Options or (ii) reacquired by the Company from employees, directors or consultants at cost (or the lesser of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the Company) of Common Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), like after the date hereof) previously issued or to be issued after the date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors advisors to, the Company or any of its subsidiaries subsidiary pursuant to (x) the Company's 2007 Stock Incentive Plan of the Company or (y) stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives at least a majority of the InvestorsPreferred Directors (as defined in the Company’s Amended and Restated Certificate of Incorporation as amended from time to time)) (the “Option Pool”); (iib) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any shares Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition, strategic alliance or similar business combination approved by the Board of Common Stock Directors (including at least a majority of the Preferred Directors); (d) any Equity Securities actually issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) Equity Securities issued to third-party service providers in exchange for or as partial consideration for services rendered to the Company; (f) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors (including at least a majority of the Preferred Directors); (g) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vh) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between connection with strategic transactions involving the Company and other entities, including, without limitation (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided, however, that the entities listed on Exhibit A theretoissuance of shares therein has been approved by the Company’s Board of Directors (including at least a majority of the Preferred Directors); orand (viii) any Equity Securities Securities, issued pursuant to or issuable hereafter that are (i) approved by a majority of the transactions described in Section 2.5.B(iii)(dBoard (including at least a majority of the Preferred Directors), and (ii) approved by the vote of the holders of at least sixty-five percent (65%) of the Credit Agreement Preferred Stock, voting together as a single class. Notwithstanding the foregoing, if the proceeds from Company shall issue any shares of Common Stock and/or options, warrants or other Common Stock purchase rights to employees, officers or directors of, or consultants or advisors to, the Company or any subsidiary in excess of the Option Pool after the date hereof without the approval of the holders of at least sixty-five percent (65%) of the shares of Preferred Stock then outstanding , then such issuance are used shares shall be subject to prepay a right of first refusal by the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) Major Investors in accordance with this Section 2.5.C. of the Credit Agreement4.

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

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

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to the issuance of any of the following Equity Securities: (ia) up to 100,441,177 1,559,582 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]shares of Common Stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement, and shares of Common Stock issued pursuant to any such rights or agreements granted after the date of this Agreement, provided that the rights of first refusal established by this Section 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors and the Investors to the extent such approval of the Investors is required under the Loan and Security Agreement, the Warrants of even date herewith and the Articles of Amendment to the Charter of the Company as filed on the date hereof; (d) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) any Equity Securities that are issued by shares of preferred stock of the Company or warrants to the holders purchase Common Stock of the Company's , and the Common Stock and warrants on a pro rata basis issued upon conversion or exercise of such preferred stock or warrants, issued pursuant to a registration statement filed under the Securities ActStock Purchase Agreement or the Loan and Security Agreement; (vf) shares of Common Stock issued upon an Initial Offering; (g) shares of Common Stock issued in connection with any Equity Securities anti-dilution rights granted to any of the Investors; (h) shares of Common Stock issued pursuant to any rights or agreements outstanding as the offering of the date shares of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions Common Stock to the Purchase Agreement shareholders of iPayment Technologies, Inc. (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi"iPayment") in exchange for shares of Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by iPayment, on the Company pursuant to same terms as described in the Common Stock Purchase Exchange Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A theretoeven date herewith; or (viii) any Equity Securities shares of Common Stock issued pursuant to 1st National Processing, Inc. in connection with its or its subsidiary's acquisition by the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementCompany.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement, options and warrants outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement; (iiic) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors, including at least one director nominated by the holders of the Series B Stock or Series A‑1 Stock; (d) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) shares of Common Stock issued upon conversion of the Shares; (f) any Equity Securities issued pursuant to any equipment leasing or loan arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors; (g) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act;; and (vh) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that such strategic transactions and the entities listed on Exhibit A theretoissuance of shares therein, has been approved by the Board of Directors; or (vii) any provided, however, that the number of Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d(f) and (h) above shall not exceed 343,980 shares of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans Common Stock (as defined in adjusted for any stock dividends, combinations, splits, recapitalizations and the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreementlike). 20.

Excluded Securities. The preemptive rights of first offer established by this Section 3 14 shall have no application to the issuance of any of the following Equity Securities: (i) up to 100,441,177 shares of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights issued or to be issued after the Original Issue Date (as adjusted for any stock dividends, combinations, splits, recapitalizations and defined in the like), issued Company’s Certificate of Incorporation) to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (Directors, including the representatives affirmative vote of the Investors)representatives designated by the holders of Preferred Stock; (ii) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the preemptive rights established by this Section 14 were complied with or were inapplicable pursuant to any provision of this Section 13 with respect to the initial sale or grant by the Company of such rights or agreements; (iii) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination approved by the Board of Directors; (iv) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ivv) shares of Common Stock issued upon conversion of shares of the Company’s Preferred Stock outstanding, if applicable; (vi) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors, including the affirmative vote of the representatives designated by the Holders; (vii) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act;; and (vviii) any Equity Securities equity securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to issuance of shares therein has been approved by the transactions described in Section 2.5.B(iii)(d) Company's Board of Directors, including the affirmative vote of the Credit Agreement if representatives designated by the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementHolders.

Excluded Securities. The rights of first offer refusal established by this Section 3 5 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), like after the date hereof) issued or to be issued after the date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 5 were complied with, waived, or were inapplicable pursuant to any provision of this Section 5.7 with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any shares of Common Stock Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; (d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the CompanyCompany approved by the Board of Directors; (ive) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors; (f) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vg) any Equity Securities issued pursuant to in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by the Company’s Board of Directors; and (h) any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise terms of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) 1.3 of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Purchase Agreement.

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

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

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

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 an aggregate amount of 6,940,000 shares of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (net of all cancellations, terminations and repurchases and as adjusted for any stock dividends, combinations, splits, recapitalizations combinations and the like), ) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors advisors to, the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or pursuant to options or warrants outstanding as of the date of this Agreement; (iiic) stock issued pursuant to any such rights or agreements granted after the date of this Agreement; provided that the rights of first refusal established by this Section 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; (d) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) shares of Common Stock issued upon conversion of the Preferred Shares; (f) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vg) any Equity Securities issued pursuant to in connection with any rights strategic acquisition or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued partnership relationship approved by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement)Board; (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (viih) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) terms of the Credit Agreement if Series F Agreement; (i) up to 1,470,981 shares of Common Stock (including options, warrants and rights to purchase Common Stock) issued to any bank, equipment lessor, lender, financial institution or similar financing source, in bona fide arm's length transactions primarily for non-capital raising purposes which are approved by the proceeds from such issuance Board; and (j) any Equity Security (including options, warrants and rights to purchase Common Stock or Preferred Stock) issued or issuable pursuant to transactions, agreements or other arrangements that are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. approved by holders of a majority of the Credit Agreementoutstanding Preferred Shares as being excluded from the Right of First Refusal set forth in this Section 4.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), like after the date hereof) issued or to be issued after the date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.6 with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any shares of Common Stock Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; (d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution; (f) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vg) any Equity Securities issued pursuant to in connection with strategic transactions involving the Company and other entities, including, without limitation (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; and (h) any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise terms of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) 2.2 of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Purchase Agreement.

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

Excluded Securities. The rights of first offer established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 Any shares of Common Stock, Stock (and/or options, warrants warrants, convertible notes or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants warrants, convertible notes or other rights (rights) as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), like issued or to be issued after the date of this Agreement to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including a representative designed by the representatives holders of the InvestorsSeries A Preferred Stock or Series B Preferred Stock of the Company); (iib) [Intentionally Omitted]any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination or strategic alliance approved by the Board of Directors (including a representative designated by the holders of the Series A Preferred Stock or Series B Preferred Stock of the Company); (iiic) any shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ivd) the Conversion Shares; (e) any Equity Securities issued pursuant to any equipment leasing, loan arrangement or debt financing from a bank or similar financial or lending institution approved by the Board of Directors (including a representative designated by the holders of the Series A Preferred Stock or Series B Preferred Stock of the Company); (f) any Equity Securities issued to the Company's strategic corporate partners or key service providers, as approved by the Board of Directors; (g) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act;; and (vh) any Equity Securities shares of Common Stock issued or issuable pursuant to any rights or agreements agreements, options, warrants or convertible securities outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.

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

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

Excluded Securities. The rights of first offer established by under this Section 3 6 shall have no application not apply to any of the following Equity Securities: (i) up to 100,441,177 shares of Common Stock, and/or options, warrants or other Common Stock purchase rights and the Common Stock securities issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued to employees, officers, directors or strategic partners of, or consultants, advisors, lenders, vendors or lessors to, by the Company or any of its subsidiaries pursuant to Subsidiaries at any time in compliance with this Agreement (the Company's stock incentive plans or pursuant to other similar arrangements that are approved by “Excluded Securities”): (i) Class A Shares issued upon the Board conversion of Directors (including any Class B Shares in accordance with the representatives of the Investors)terms thereof; (ii) [Intentionally Omitted]non-voting securities of the Company, including any options, warrants or other securities convertible into or exercisable or exchangeable for any such non-voting securities, issued pursuant to the Management Long-Term Compensation Plan, in an aggregate amount (inclusive of any such securities that have been converted into, exercised or exchanged for voting securities) at any time outstanding not to exceed 7.5% (on an as-converted, exercised or exchanged basis) of the Company’s outstanding Common Shares as of the date hereof (taking into account any stock dividends or distributions, stock splits, reclassifications, recapitalizations or other subdivisions or combinations of such Common Shares); (iii) any shares of Common Stock Shares issued in connection with as a dividend on Common Shares or upon any stock split, stock dividend or recapitalization by the Company; (iv) securities issued in connection with a consolidation, merger, purchase of all or substantially all of the assets or similar transaction involving the Company, or any Equity Securities of its Subsidiaries, and a business entity that are issued by is not an Affiliate (disregarding clauses (i)(y) and (ii) of the definition of such term) of the Company or one of the Principal Stockholders, in each case to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Actextent that such transaction is conducted in compliance with this Agreement; (v) with the approval of a majority of the Board and, for so long as any Equity Securities issued Principal Stockholder’s Proportionate Percentage is at least 5%, the approval of at least one Director nominated by such Principal Stockholder (to the extent such Principal Stockholder has the right to nominate a Director pursuant to Section 2 hereof), securities issued as an equity kicker to one or more Persons to whom the Company or one or more of its Subsidiaries is becoming Indebted in connection with the incurrence of such Indebtedness by the Company or any rights or agreements outstanding as of the date of its Subsidiaries, provided that such incurrence otherwise occurs in compliance with this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions provided that (A) to the Purchase Agreement extent any Principal Stockholder or Partial Rights Transferee exercises its Preemptive Rights to such Indebtedness, it shall be entitled to Preemptive Rights pursuant to this Section 6 (without respect to this Section 6(b)(v)) with respect to such securities issued as an equity kicker, and (B) the effect of such issuance does not discriminate against any Principal Stockholder (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreementhaving a different adverse impact on any Principal Stockholder based on such Principal Stockholder’s identity or any of its attributes); (vi) with the approval of a majority of the Board and, for so long as any Principal Stockholder’s Proportionate Percentage is at least 5%, the approval of at least one Director nominated by such Principal Stockholder (to the extent such Principal Stockholder has the right to nominate a Director pursuant to Section 2 hereof), and to the extent that the Company concludes that an issuance is appropriate and desirable and in order to further the business relationship with a customer of the Company or one of its Subsidiaries, Common Stock Shares issued on customary terms to such customer, provided that such customer is not an Affiliate (disregarding clauses (i)(y) and warrants (and Common Stock issuable upon exercise ii) of the definition of such warrantsterm) issued by of the Company pursuant to or one of the Common Stock Purchase Agreement dated as Principal Stockholders, provided further that the effect of October 30, 2002, such issuance does not discriminate against any Principal Stockholder (including by and between the Company and the entities listed having a different adverse impact on Exhibit A thereto; orany Principal Stockholder based on such Principal Stockholder’s identity or any of its attributes); (vii) any Equity Securities securities issued pursuant by a Subsidiary of the Company to the transactions described in Section 2.5.B(iii)(d) Company or another Subsidiary of the Credit Agreement if Company; and (viii) securities issued upon the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. exercise, conversion or exchange of any options, warrants or any other derivative securities of the Credit AgreementCompany or any of its Subsidiaries issued in compliance with (or not otherwise in violation of) this Section 6.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 an aggregate amount of seventeen million one hundred twenty-two thousand nine hundred thirty-five (17,122,935) shares (provided, however, that such amount shall be increased to reflect any shares of Common StockStock (i) not issued pursuant to the rights, agreements, options or warrants outstanding as of the Original Issue Date ("Outstanding Options") as a result of the termination of such Outstanding Options or (ii) reacquired by the Company from employees, directors or consultants at cost pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the Company) of Common Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), like after the filing of the Company's Articles of Incorporation) issued or to be issued after the Original Issue Date (as defined in the Company's Articles of Incorporation) to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives affirmative vote of the Investors)representative designated by the holders of the Shares; (iib) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements outstanding as of the date of this Agreement, options and warrants outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement (including, without limitation, any equity securities that are issued by the Company pursuant to a $1,200,000 private placement offering dated December 2000 and a $750,000 private placement offering dated January 2001); provided that the rights of first refusal established by this Section 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, strategic alliance, acquisition or similar business combination approved by the Board of Directors; (d) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) shares of Common Stock issued upon conversion of shares of the Company's Preferred Stock; (f) any Equity Securities issued pursuant to any equipment leasing, real property leasing or loan arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors; and (g) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (v) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.

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

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

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to the issuance of any of the following Equity Securities: (ia) up to 100,441,177 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), rights) issued or to be issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors (including the representatives of the Investors)Directors; (iib) [Intentionally Omitted]shares of Common Stock issued pursuant to any rights or agreements outstanding as of the date of this Agreement, and shares of Common Stock issued pursuant to any such rights or agreements granted after the date of this Agreement; provided that the rights of first refusal established by this Section 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; (iiic) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors and the Initial Investors to the extent such approval of the Initial Investors is required under the Loan and Security Agreement, the Warrants of even date herewith and the Articles of Amendment to the Charter of the Company as filed on the date hereof; (d) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) any Equity Securities that are issued by shares of preferred stock of the Company or warrants to the holders purchase Common Stock of the Company's , and the Common Stock and warrants on a pro rata basis issued upon conversion or exercise of such preferred stock or warrants, issued pursuant to a registration statement filed under the Securities ActStock Purchase Agreement or the Loan and Security Agreement; (vf) shares of Common Stock issued upon an Initial Offering; (g) shares of Common Stock issued in connection with any Equity Securities anti-dilution rights granted to any of the Investors; (h) shares of Common Stock issued pursuant to any rights or agreements outstanding the offering of shares of Common Stock to the shareholders of iPayment Technologies, Inc. ("iPayment") in exchange for shares of Common Stock of iPayment, on the same terms as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth described in the Schedule Common Stock Exchange Agreement of Exceptions even date herewith, and any shares of Common stock issued pursuant to the Purchase Agreement (including Equity Securities issued by Company's planned minority stock exchange with the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement)remaining shareholders of iPayment; (vii) shares of Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued to 1st National Processing, Inc. in connection with its or its subsidiary's acquisition by the Company pursuant Company; (j) the Notes issued to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A theretoNew Investors; or (viik) shares of Common Stock issued upon the conversion of the Notes. 7. Except as expressly set forth in this Amendment, the terms and conditions of the Agreement shall remain in place and shall not be altered, amended or changed in any Equity Securities issued pursuant manner whatsoever, except by any further amendment to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) made in accordance with Section 2.5.C. the terms of the Credit Agreement, and such terms and conditions shall be incorporated herein by this reference.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application not apply to any of the following Equity Securities: (iA) up to 100,441,177 shares of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights rights, and the Common Stock issued pursuant to such options, warrants or other rights to employees, officers or directors of, or consultants, advisors, strategic partners, lenders or creditors to the Corporation or any subsidiary pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; provided, that issuances of Common Stock and/or options, warrants or other Common Stock purchase rights, and the Common Stock issued pursuant to such options, warrants or other rights after the date hereof may not exceed the number of shares of Common Stock reserved for issuance pursuant to the Company's 2000 Stock Option Plan as of such date (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued to employees, officers, directors or strategic partners of, or consultants, advisors, lenders, vendors or lessors to, except with the Company or any of its subsidiaries pursuant to the Company's stock incentive plans or pursuant to other similar arrangements that are approved approval by the Board of Directors (including the representatives a majority of the Investorsindependent, non-employee directors then serving); (iiB) [Intentionally Omitted]shares of Common Stock and/or options, warrants or other Common Stock purchase rights, and the Common Stock issued pursuant to such options, warrants or other rights to equipment lessors other than an Affiliate or bank lenders as approved by the Board of Directors; (iiiC) shares of Common Stock and/or options, warrants or other Common Stock purchase rights, and the Common Stock issued pursuant to such options, warrants or other rights to corporate partners or in connection with other strategic transactions approved by the Board of Directors; provided, no Affiliate is a corporate partner or party to the strategic transaction; (D) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors; (E) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ivF) shares of Common Stock issued upon conversion of shares of Preferred Stock; (G) additional shares of Common Stock that are issued or become issuable upon conversion or exercise of other outstanding securities of the Corporation as a result of the operation of anti-dilution provisions which are contained in the original terms of such securities; and (H) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (v) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit Agreement.

Excluded Securities. The rights of first offer refusal established by this Section 3 4 shall have no application to any of the following Equity Securities: (ia) up to 100,441,177 an aggregate amount of 11,992,426 shares of Common Stock, Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (rights) as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), like issued or to be issued after the Series D-4 Original Issue Date (as defined in the Company's Certificate of Incorporation as amended) to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors advisors to, the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board of Directors; (b) stock issued pursuant to any warrants, options, or other convertible securities outstanding as of the date of this Agreement or as a result of the conversion of stock underlying any such options or warrants; (c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors (including the representatives of the Investorsat least two (2) Preferred Directors); (iid) [Intentionally Omitted]; (iii) any shares of Common Stock or Preferred Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ive) shares of Common Stock issued upon conversion of the Shares, the Series A Stock, the Series D-2 Stock, the Series D-3 Stock and the Series D-4 Stock; (f) any Equity Securities issued pursuant to any equipment leasing or loan arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board of Directors (including at least two (2) Preferred Directors); (g) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act;Qualified Public Offering; and (vh) any Equity Securities issued pursuant to any rights or agreements outstanding as of the date of this Agreement, or options or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement); (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the entities listed on Exhibit A thereto; or (vii) any issuance of Equity Securities issued pursuant to in connection with such strategic transactions and the transactions described in Section 2.5.B(iii)(d) issuance of shares therein, has been approved by the Credit Agreement if Company's Board of Directors, including the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementSeries D Designee.

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

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

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

Excluded Securities. The preemptive rights of first offer established by this Section 3 Article 8 shall have no application to any of the following Equity SecuritiesShareholder Stock: (ia) up to 100,441,177 shares Shares of Common Stock, Shareholder Stock and/or options, warrants or other Common Shareholder Stock purchase rights issued to, and the Common Shareholder Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividendspurchase rights, combinations, splits, recapitalizations and the like), issued to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors advisors to, the Company or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar arrangements that are approved by the Board Company’s board of Directors (including the representatives of the Investors)directors; (iib) [Intentionally Omitted]Shareholder Stock issued or issuable pursuant to any rights or agreements, options, warrants, or convertible securities outstanding as of the date of this Agreement, including Shareholder Stock issued upon the conversion of the Convertible Notes or the Series A Stock; (iiic) Shareholder Stock issued pursuant to any convertible securities granted after the date of this Agreement to the extent that the rights of first refusal established by this Article 8 were complied with or were inapplicable pursuant to any provision of this Article 8 with respect to the initial sale, issuance, or exchange by the Company of such convertible securities; (d) Any Shareholder Stock issued for consideration other than cash pursuant to a merger, consolidation, acquisition, or similar business combination approved by the board of directors and by a majority of the outstanding shares of Common Stock then held by Shareholders; (e) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization subdivision by the CompanyCompany that is approved by the board of directors; (ivf) any Equity Securities that are issued up to Three Hundred Thousand (300,000) (or such greater amount as may be approved by the Company to the holders a majority of the Company's outstanding shares of Common Stock and warrants on a pro rata basis pursuant to a registration statement filed under the Securities Act; (vthen held by Shareholders) shares of any Equity Securities Shareholder Stock issued pursuant to any rights equipment loan or agreements outstanding as of the date of this Agreementleasing arrangement, real property leasing arrangement, or options debt financing from a bank or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement (including Equity Securities issued similar financial or lending institution approved by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement);board of directors; and (vig) Common any Shareholder Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, strategic alliances, manufacturing, marketing or distribution arrangements, and (ii) technology transfer or development arrangements; provided that, in each case, the entities listed on Exhibit A thereto; or (vii) any Equity Securities issued pursuant to issuance of shares therein has been approved by the transactions described in Section 2.5.B(iii)(d) board of directors and a majority of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. outstanding shares of the Credit AgreementCommon Stock then held by Shareholders.

Excluded Securities. The preemptive rights of first offer established by this Section 3 2 shall have no application to any of the following Equity Securities (the “Excluded Securities:”): (ia) up to 100,441,177 all shares of Common Stock, Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), like after the date hereof) issued or to be issued after the date hereof to employees, officers, officers or directors or strategic partners of, or consultants, advisors, lenders, vendors consultants or lessors to, advisors to the Company Corporation or any of its subsidiaries subsidiary, pursuant to the Company's stock incentive purchase or stock option plans or pursuant to other similar compensatory arrangements that are approved by the Board of Directors (including the representatives stockholders of the Investors)Corporation; (iib) [Intentionally Omitted]stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement, excluding any Equity Securities issued upon conversion of those certain promissory notes of the Corporation outstanding as of the date of this Agreement and described in Section 7 of Schedule 3(c) and 3(e) to the Subscription Agreement (the “Convertible Promissory Notes”); and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the preemptive rights established by this Section 2 were complied with, waived, or were inapplicable pursuant to any provision of this Section 2.5 with respect to the initial sale or grant by the Corporation of such rights or agreements; (iiic) any shares of Common Stock Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; (d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the CompanyCorporation; (ive) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution; (f) any Equity Securities that are issued by the Company to the holders of the Company's Common Stock and warrants on a pro rata basis Corporation pursuant to a registration statement filed under the Securities Act; (vg) any Equity Securities issued pursuant to any rights or agreements outstanding as of in connection with strategic transactions involving the date of this AgreementCorporation and other entities, including, without limitation (i) joint ventures, strategic alliances, or options research and development collaborations, (ii) technology transfer, licensing or warrants outstanding as of the date of this Agreement as set forth in the Schedule of Exceptions to the Purchase Agreement development arrangements or (including Equity Securities issued by the Company pursuant to Nortel Note Exchange Agreement, SDS Note Exchange Agreement, the Series H Share Exchange Agreement, and the Series J Share Exchange Agreement);iii) other than any other transactions involving third parties; provided that such transaction is not primarily for equity financing purposes; and (vi) Common Stock and warrants (and Common Stock issuable upon exercise of such warrants) issued by the Company pursuant to the Common Stock Purchase Agreement dated as of October 30, 2002, by and between the Company and the entities listed on Exhibit A thereto; or (viih) any Equity Securities issued pursuant to the transactions described in Section 2.5.B(iii)(d) of the Credit Agreement if the proceeds from such issuance are used to prepay the Loans (as defined in the Credit Agreement) and permanently reduce the Commitments (as defined in the Credit Agreement) in accordance with Section 2.5.C. of the Credit AgreementInvestor.