Common use of Excluded Securities Clause in Contracts

Excluded Securities. The rights of first refusal established by this Section 6 shall have no application to any of the following Equity Securities: (i) shares of Common Stock and/or options to purchase Common Stock issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; (ii) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement (including 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 first refusal 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 Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; (iv) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (v) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution, or pursuant to any strategic license agreements and other partnering arrangements; or (vi) any Equity Securities issued in an underwritten public offering.

Excluded Securities. The rights of first refusal established by this Section 6 4 shall have no application to any of the following Equity Securities: (ia) shares of Common Stock (and/or options to purchase options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued after the date hereof to employees, officers or officers, 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; (iib) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities agreements outstanding as of the date of this Agreement (including Agreement, options and warrants outstanding as of the Warrants)date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as ; provided that the rights of first refusal established by this Section 6 were complied with, waived, or were inapplicable pursuant to any provision of this Section 6 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; (ivd) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ve) shares of Common Stock issued upon conversion of the Shares; (f) any Equity Securities issued pursuant to any equipment leasing or loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution, or institution approved by the Board of Directors; (g) any Equity Securities that are issued by the Company pursuant to any strategic license agreements and other partnering arrangements; ora registration statement filed under the Securities Act; (vih) 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 Company’s Board of Directors; and (i) up to an underwritten public offeringaggregate of 100,000 shares of stock of the Company issued to any charitable organization described in Section 170(c) of the Internal Revenue Code.

Excluded Securities. The rights of first refusal established by this Section 6 4 shall have no application to any of the following Equity Securities: (ia) shares of Common Stock (and/or options to purchase options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued after the date hereof Original Issue Date (as defined in the Company's Restated Certificate of Incorporation) to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; (iib) stock issued upon the exercise or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as conversion of the date of this Agreement (including the Warrants); and stock an Equity Security that is issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as ; PROVIDED that the Equity Security has been issued in compliance with the rights of first refusal 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;4. (iiic) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; (ivd) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ve) shares of Common Stock issued upon conversion of the Shares; (f) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution, or pursuant to any strategic license agreements and other partnering arrangements; or; (vig) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; and (h) shares of the Company's Common Stock or Preferred Stock issued in an underwritten public offeringconnection with licensing or 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 transactions and the issuance of shares therein has been approved by at least five of the seven members of the Company's Board of Directors.

Excluded Securities. The rights of first refusal established by this Section 6 5 shall have no application to any of the following Equity Securities: : (ia) shares of Common Stock and/or options to purchase 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 date hereof to employees, officers or directors of, or consultants or advisors to the Company Corporation or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; ; (iib) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement (including the Warrants)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 6 5 were complied with, waived, or were inapplicable pursuant to any provision of this Section 6 5 with respect to the initial sale or grant by the Company Corporation 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; ; (ivd) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; Corporation; (ve) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution, or pursuant to any strategic license agreements ; and other partnering arrangements; or (vif) any Equity Securities that are issued in an underwritten public offeringby the Corporation pursuant to a registration statement filed under the Securities Act.”

Excluded Securities. The rights of first refusal established by this Section 6 4 shall have no application to any of the following Equity Securities: (ia) up to an aggregate amount of 9,525,000 shares of Common Stock (and/or options to purchase options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to 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; (iib) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities agreements outstanding as of the date of this Agreement (including Agreement, options and warrants outstanding as of the Warrants)date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as provided that the rights of first refusal established by this Section 6 were complied with, waived, or were inapplicable pursuant to any provision of this Section 6 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; (ivd) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ve) shares of Common Stock issued upon conversion of the Shares; (f) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution, or pursuant to any strategic license agreements and other partnering arrangements; or; (vig) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; and (h) shares of the Company's Common Stock or Preferred Stock issued in an underwritten public offeringconnection with strategic transactions involving the Company and other entities, including (A) joint ventures, manufacturing, marketing or distribution arrangements or (B) technology transfer or development arrangements; provided that such strategic transactions and the issuance of shares therein, has been approved by the Company's Board of Directors.

Excluded Securities. The rights of first refusal established by this Section 6 4 shall have no application to any of the following Equity Securities: (ia) shares of Common Stock (and/or options to purchase options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; (iib) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities agreements outstanding as of the date of this Agreement (including Agreement, options and warrants outstanding as of the Warrants)date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as ; PROVIDED that the rights of first refusal established by this Section 6 were complied with, waived, or were inapplicable pursuant to any provision of this Section 6 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; (ivd) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ve) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution, or pursuant to any strategic license agreements and other partnering arrangements; or; (vif) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; and (g) shares of the Company's Common Stock or Preferred Stock issued in an underwritten public offeringconnection with strategic transactions involving the Company and other entities, such as (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer, licensing or development arrangements; PROVIDED that such strategic transactions and the issuance of shares therein, shall have been determined by the Company's Board of Directors to be a strategic transaction for purposes of this subsection.

Excluded Securities. The rights of first refusal established by this Section 6 4 shall have no application to any of the following Equity Securities: (iA) shares of Common Stock (and/or options to purchase options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; (iiB) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities agreements outstanding as of the date of this Agreement (including Agreement, options and warrants outstanding as of the Warrants)date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as provided that the rights of first refusal established by this Section 6 were complied with, waived, or were inapplicable pursuant to any provision of this Section 6 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; (ivD) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (vE) shares of Common Stock issued upon conversion of the Shares; (F) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution, or pursuant to any strategic license agreements and other partnering arrangements; orinstitution approved by the Board of Directors; (viG) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; and (H) shares of the Company's Common Stock or Preferred Stock issued in an underwritten public offeringconnection with strategic transactions involving the Company and other entities, including (A) joint ventures, manufacturing, marketing or distribution arrangements or (B) technology transfer or development arrangements; provided that such strategic transactions and the issuance of shares therein, have been approved by the Company's Board of Directors.

Excluded Securities. The rights of first refusal established by this Section 6 5.2 shall have no application to any of the following Equity SecuritiesSecurities : (iI) shares of Common Stock (and/or options to purchase options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of DirectorsDirectors of the Company; (iiII) stock any Securities issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities agreements outstanding as of the date of this Agreement (Agreement, including the Warrants)without limitation convertible securities, options and warrants; and stock any Securities issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as provided that the rights of first refusal established by this Section 6 were complied with, waived, or were inapplicable pursuant to any provision of this Section 6 5.2 applied 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, acquisition or similar business combination; (ivIV) any Equity Securities that are issued by the Company as part of an underwritten public offering of the Company's securities pursuant to a registration statement filed under the Securities Act; (V) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (vVI) shares of Common Stock issued upon conversion of the Preferred Stock; and (VII) any Equity Securities issued pursuant to any venture equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution, or pursuant to any strategic license agreements and other partnering arrangements; or (vi) any Equity Securities issued in an underwritten public offeringarrangement approved by the Board of Directors.

Excluded Securities. The rights of first refusal established by this Section 6 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) shares of Common Stock (and/or options to purchase options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to to, the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directorsarrangements; (iib) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities agreements outstanding as of the date of this Agreement (including Agreement, options and warrants outstanding as of the Warrants); date of this Agreement, and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as provided that the rights of first refusal established by this Section 6 were complied with, waived, or were inapplicable pursuant to any provision of this Section 6 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; (ivd) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ve) the Shares and any shares of Common Stock issued upon conversion of the Shares; (f) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution, or pursuant to any strategic license agreements and other partnering arrangements; or; (vig) any Equity Securities issued by the Company pursuant to a registration statement filed under the Securities Act; and (h) shares of the Company's Common Stock or Preferred Stock issued in an underwritten public offeringconnection 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.

Excluded Securities. The participation rights of first refusal established by set forth in this Section 6 4 shall have no application not apply to any of the following Equity Securities: (ia) shares of Common Stock and/or options to purchase the Common Stock issued or issuable upon conversion of any shares of the Preferred Stock; (b) [RESERVED]; (c) shares of the Common Stock, including options, warrants or other rights to be issued after purchase up to such number of shares of the date hereof Common Stock (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), issued, sold or granted to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, subsidiary pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of DirectorsRose Capital; (iid) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as shares of the date of this Agreement (including 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 first refusal 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 Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; (iv) any Equity Securities Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ve) 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 Rose Capital; 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 pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution, or pursuant to any strategic license agreements and other partnering arrangements; or (vi) any Equity registration statement filed under the Securities issued in an underwritten public offeringAct.

Excluded Securities. The rights of first refusal established by this Section 6 4 shall have no application to any of the following Equity Securities: (i) : shares of Common Stock (and/or options to purchase 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 Original Issue Date (as defined in the Company’s Certificate of Incorporation to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; (ii) ; stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities agreements outstanding as of the date of this Agreement (including Agreement, stock issued pursuant to options and warrants outstanding as of the Warrants)date of this Agreement; and stock issued pursuant to any such rights rights, agreements, options or agreements warrants granted after the date of this Agreement, so long as ; provided that the rights of first refusal established by this Section 6 were complied with, waived, or were inapplicable pursuant to any provision of this Section 6 4 applied with respect to the initial sale or grant by the Company of such rights rights, agreements, options or agreements; (iii) warrants granted after the date of this Agreement; any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; (iv) any Equity Securities ; shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (v) ; shares of Common Stock issued upon conversion of the Shares; any Equity Securities issued pursuant to any equipment leasing or loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution, or pursuant to any strategic license agreements and other partnering arrangements; or (vi) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; and shares of the Company’s Common Stock or Preferred Stock issued in an underwritten public offeringconnection 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.

Excluded Securities. The rights of first refusal established by this Section 6 4 shall have no application to any of the following Equity Securities: (ia) shares of Common Stock and/or options to purchase 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 date hereof Original Issue Date (as defined in the Company's Restated Charter) to employees, officers or directors of, or consultants or advisors to to, the Company or any subsidiary, subsidiary pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; (iib) stock any Equity Securities issued or issuable pursuant to any rights or agreements, agreements outstanding as of the Original Issue Date or pursuant to the exercise of options, warrants or convertible securities outstanding as of the date of this Agreement (including 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 first refusal 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 agreementsOriginal Issue Date; (iiic) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combinationcombination approved by the Board of Directors; (ivd) any Equity Securities issued in connection with any stock split, stock dividend dividend, combination or recapitalization by the Company; (ve) any Equity Securities issued upon conversion of the Preferred Stock of the Company; (f) any Equity Securities issued pursuant to any equipment or real estate leasing or loan or leasing arrangement, real property leasing arrangement, or debt financing from a landlord or bank (or similar financial or lending institution, or ); (g) any Equity Securities that are issued by the Company pursuant to any strategic license agreements and other partnering arrangementsa registration statement filed under the Securities Act; orand (vih) any Equity Securities issued in an underwritten public offeringconnection with strategic transactions approved by the Board involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements, or (ii) technology license, transfer or development arrangements.

Excluded Securities. The rights of first refusal established by this Section 6 4 shall have no application to any of the following Equity Securities: (ia) shares of Common Stock (and/or options to purchase options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; (iib) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities agreements outstanding as of the date of this Agreement (including Agreement, options and warrants outstanding as of the Warrants)date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as provided that the rights of first refusal established by this Section 6 were complied with, waived, or were inapplicable pursuant to any provision of this Section 6 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; (ivd) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ve) shares of Common Stock issued upon conversion of the Shares; (f) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution, or pursuant to any strategic license agreements and other partnering arrangements; or; (vig) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; and (h) shares of the Company's Common Stock or Preferred Stock issued in an underwritten public offeringconnection with strategic transactions involving the Company and other entities, including (A) joint ventures, manufacturing, marketing or distribution arrangements or (B) technology transfer or development arrangements; provided that such strategic transactions and the issuance of shares therein, has been approved by the Company's Board of Directors.

Excluded Securities. The rights of first refusal established by this Section 6 4 shall have no application to any of the following Equity Securities: (ia) up to 2,000,000 shares (or such larger number if otherwise approved by the holders of at least a majority of the Registrable Securities held by Major Investors) of Common Stock (and/or options to purchase options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiarysubsidiary or entities with whom the Company or its subsidiaries does business, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; (iib) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities agreements outstanding as of the date of this Agreement (including Agreement, options and warrants outstanding as of the Warrants)date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as provided that the rights of first refusal established by this Section 6 were complied with, waived, or were inapplicable pursuant to any provision of this Section 6 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; (iv) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (vd) shares of Common Stock issued upon conversion of the Shares; (e) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution, or pursuant ; (f) up to any two hundred thousand (200,000) shares of Equity Securities issued in connection with strategic license agreements transactions involving the Corporation and other partnering entities, including join ventures, manufacturing, marketing, distribution, technology transfer or development arrangements; (g) shares of Series B Stock (including shares of Common Stock issuable upon conversion of such Series B Stock); or (vih) any Equity Securities that are issued in an underwritten public offeringby the Company pursuant to a registration statement filed under the Securities Act.

Excluded Securities. The rights of first refusal established by this Section 6 4 shall have no application to any of the following Equity Securities: (ia) shares of Common Stock (and/or options to purchase options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued after the date hereof Original Issue Date (as defined in the Company's Certificates of Incorporation) to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; (iib) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities agreements outstanding as of the date of this Agreement (including Agreement, options and warrants outstanding as of the Warrants); date of this Agreement, and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as ; provided that the rights of first refusal established by this Section 6 were complied with, waived, or were inapplicable pursuant to any provision of this Section 6 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; (ivd) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ve) shares of Common Stock issued upon conversion of the Shares; (f) any Equity Securities issued pursuant to any equipment leasing or loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution, or pursuant to any strategic license agreements and other partnering arrangements; or; (vig) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; and (h) shares of the Company's Common Stock or Preferred Stock issued in an underwritten public offeringconnection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that such strategic transactions and the issuance of shares therein, has been approved by the Company's Board of Directors.

Excluded Securities. The rights of first refusal established by this Section 6 Article 8 shall have no application to any of the following Equity Securities: (ia) shares of Common Stock and/or options to purchase Common Stock Equity Securities issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Company’s Board of Directors; (iib) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities Equity Securities outstanding as of the date of this Agreement (including the Warrants); Agreement, and stock Equity Securities issued pursuant to any such rights or agreements Equity Securities granted after the date of this Agreement, so long as the rights of first refusal established by this Section 6 Article 8 were complied with, waived, or were inapplicable pursuant to any provision of this Section 6 8.5 with respect to the initial sale or grant by the Company of such rights or agreementsEquity Securities; (iiic) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination, provided that such transaction is not primarily for capital raising purposes rather than strategic purposes; (ivd) any Equity Securities issued by the Company in connection with any stock dividends, split-ups, recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or the like; (e) any Equity Securities that are issued by the Company in a public offering pursuant to a registration statement filed under the Securities Act; and (f) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by strategic transactions involving the Company; (v) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution, or pursuant to any strategic license agreements Company and other partnering entities, including, without limitation (i) joint ventures, partnering, manufacturing, marketing or distribution arrangements or (ii) licensing, intellectual property transfer or development arrangements; or (vi) any Equity Securities issued in an underwritten public offeringprovided that such transaction is not substantially for equity financing purposes.

Excluded Securities. The rights of first refusal established by this Section 6 4 shall have no application to the sale or issuance of any of the following Equity Securities: (ia) shares of Common Stock and/or options to purchase 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 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; (iib) stock issued or issuable pursuant to any rights or rights, agreements, options, options or warrants or convertible securities outstanding as of the date of this Agreement (including 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 first refusal 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; (iiic) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combinationcombination approved by the Board of Directors; (ivd) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ve) shares of Common Stock issued upon conversion of the Shares; (f) any Equity Securities issued pursuant to any equipment leasing or loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution, or institution approved by the Board of Directors; (g) any Equity Securities that are issued by the Company pursuant to any strategic license agreements and other partnering arrangements; ora registration statement filed under the Securities Act; (vih) any Equity Securities issued in an underwritten public offeringconnection 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 any such strategic transactions and the issuance of shares therein, have been approved by the Company's Board of Directors; and (i) up to two million nine hundred thousand (2,900,000) shares of the Company's Series B-1 Preferred Stock that the Company may issue and sell pursuant to the Purchase Agreement.

Excluded Securities. The rights of first refusal established by this Section 6 4 shall have no application to any of the following Equity Securities: (ia) shares of Common Stock (and/or options to purchase options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements or agreements that are approved by the Board of Directors; (iib) stock issued or issuable pursuant to any rights rights, or agreements, options, warrants or convertible securities agreements outstanding as of the date of this Agreement (including the Warrants)Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this AgreementAgreement pursuant to any such rights, so long as options, warrants or agreements granted or sold in transactions to which the rights right of first refusal established by this Section 6 were complied with, waived, 4 was applied 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 agreementsexcluded; (iiic) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combinationcombination approved by the Board of Directors; (ivd) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ve) shares of Common Stock issued upon conversion of the Shares; (f) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution, or pursuant to any strategic license agreements and other partnering arrangements; orinstitution approved by the Board of Directors; (vig) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; and (h) shares of the Company's Common Stock or Preferred Stock issued in an underwritten public offering.connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer

Excluded Securities. The rights right of first refusal established by this Section 6 4 shall have no application to any of the following Equity Securities: (ia) shares of Common Stock (and/or options to purchase options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans compensation plans, compensation agreements, or other compensation arrangements that are approved by the Board of Directors. (b) shares of Series E Preferred Stock issuable pursuant to the Series E Purchase Agreement; (iic) stock issued or issuable pursuant to any rights the conversion or agreements, exercise of outstanding options, warrants outstanding warrants, or any other outstanding convertible or exercisable securities outstanding as of the date of this Agreement Agreement; (including the Warrants); and d) stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as provided that the rights of first refusal established by this Section 6 were complied with, waived, or were inapplicable pursuant to any provision of this Section 6 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; (iiie) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combinationcombination that is approved by the Board of Directors; (ivf) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (vg) shares of Common Stock issued upon conversion of the Shares; (h) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution; provided, such equipment leasing arrangement, or pursuant to any strategic license agreements and other partnering arrangements; ordebt financing is approved by the Board of Directors and, if such issuances exceed in the aggregate 1,000,000 shares, the consent of the holders of at least a majority of the Preferred Stock voting as a single class; (vii) 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 or (iii) strategic customer relationships; provided that such strategic transactions and the issuance of shares therein has been approved by the Board of Directors and, (x) if such issuances exceed in the aggregate 1,000,000 shares of Common Stock (on an underwritten public offeringas-converted or exercised basis), the consent of the holders of at least a majority of the Preferred Stock, voting as a single class and (y) if such issuance is at a valuation below $12.29 per share, the consent of the holders of at least a majority of the Series D Preferred Stock, voting as a separate class; or (j) any Equity Securities issued in connection with the Company’s Initial Public Offering.

Excluded Securities. The rights of first refusal established by this Section 6 4 shall have no application to any of the following Equity Securities: (i) shares a. Shares of Common Stock (and/or options to purchase options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; (ii) stock b. Stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities agreements outstanding as of the date of this Agreement (including Agreement, options and warrants outstanding as of the Warrants)date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as provided that the rights of first refusal established by this Section 6 were complied with, waived, or were inapplicable pursuant to any provision of this Section 6 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; (iii) any c. Any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination; (iv) any Equity Securities d. Shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (v) any e. Shares of Common Stock issued upon conversion of the Shares; f. Any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution, or financing; g. Any Equity Securities that are issued by the Company pursuant to any strategic license agreements and other partnering arrangementsa registration statement filed under the Securities Act; orand (vi) any h. Equity Securities issued in an underwritten public offeringconnection 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 not less than seventy-five percent (75%) the Company's Board of Directors, with all Directors voting.

Excluded Securities. The rights of first refusal established by this Section 6 4 shall have no application to any of the following Equity Securities: (ia) shares of Common Stock (and/or options to purchase 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 Series D Original Issue Date (as defined in the Company's Articles of Incorporation) to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors; (iib) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities agreements outstanding as of the date of this Agreement (including Agreement, options and warrants outstanding as of the Warrants)date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as ; PROVIDED that the rights of first refusal established by this Section 6 were complied with, waived, or were inapplicable pursuant to any provision of this Section 6 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; (ivd) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (ve) shares of Common Stock issued upon conversion of the Shares; (f) any Equity Securities issued pursuant to any equipment leasing or loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution, or ; (g) any Equity Securities that are issued by the Company pursuant to any strategic license agreements and other partnering arrangementsa registration statement filed under the Securities Act; orand (vih) any Equity Securities issued in an underwritten public offeringconnection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; PROVIDED that such strategic transactions and the issuance of shares therein, has been approved by the Company's Board of Directors.