Common use of Excluded Securities Clause in Contracts

Excluded Securities. The right of first refusal established by Section 10.1 shall have no application to any of the following Equity Securities: (a) shares of Common Stock (and/or options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other compensatory arrangements that are approved by the Board of Directors; (b) any Equity Securities 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 exercised after the date of this Agreement; (c) any Equity Securities issued in connection with an underwritten public offering; (d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination whereby the stockholders of the Company will own more than fifty percent (50%) of the voting power of the combined entity; (e) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (f) shares of Common Stock issued upon conversion of any Equity Securities; *CONFIDENTIAL TREATMENT REQUESTED

Excluded Securities. The right of first refusal established by Section 10.1 Sections 4.2, 4.3 and 4.4 shall have no application to any of the following Equity Securities: (a) shares of Common Stock (and/or options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other compensatory arrangements that are approved by the Board of Directors; (b) any Equity Securities 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 exercised granted after the date of this AgreementAgreement provided that the right of first refusal established by this Section 4 did not apply to the initial sale or grant by the Company of such rights, agreements, options or warrants; (c) any Equity Securities issued in connection with an underwritten public offering; (d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination whereby the stockholders of the Company will own more than fifty percent (50%) of the voting power of the combined entity; (ed) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (fe) shares of Common Stock issued upon conversion of any Equity Securities; (f) any Equity Securities issued pursuant to any equipment leasing arrangement; *CONFIDENTIAL TREATMENT REQUESTEDand (g) shares of the Company's Common Stock or Preferred Stock issued in connection with strategic transactions involving the Company and any third party, including (i) joint ventures, manufacturing, marketing, corporate partnering or distribution arrangements, or (ii) technology transfer, research or development

Excluded Securities. The right rights of first refusal established by this Section 10.1 7 shall have no application to any of the following Equity Securities: (a) up to an aggregate amount of 1,500,000 shares of Common Stock (and/or 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 compensatory arrangements that are approved by the Board of Directors;. (b) any Equity Securities stock issued pursuant to any rights, agreements, rights or agreements outstanding as of the date of this Agreement; options or and warrants outstanding as of the date of this Agreement, ; and stock issued pursuant to any rights, agreements, options such rights or warrants exercised agreements granted after the date of this AgreementAgreements; provided that the rights of first refusal established by this Section 7 applied with respect to the initial sale or grant by the Company of such rights or agreements; (c) any Equity Securities issued in connection with an underwritten public offering; (d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination whereby approved by the stockholders Board of the Company will own more than fifty percent (50%) of the voting power of the combined entityDirectors; (ed) any Equity Securities shares of Common Stock issued in connection with any stock split, ,stock dividend or recapitalization by the Company; (fe) shares of Common Stock issued upon conversion of the Series B or Series C Preferred Stock; (f) any Equity SecuritiesSecurities that are issued to the public by the Company pursuant to a registration statement filed under the Securities Act; *CONFIDENTIAL TREATMENT REQUESTEDand (g) shares of C-3 Shares issued in connection with the Exchange Offer and/ or the Lexington Option.

Excluded Securities. The right rights of first refusal established by this Section 10.1 5 shall have no application to any of the following Equity Securities: (a) 5.3.1 shares of Series C Stock provided for in the Purchase Agreement; 5.3.2 Common Stock (and/or options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other compensatory arrangements that are approved by a majority of the Board of Directors; (b) any Equity Securities 5.3.3 stock issued pursuant to any rights, agreementsrights or agreements outstanding as of the date of this Agreement, options or and warrants outstanding as of the date of this Agreement, ; and stock issued pursuant to any rights, agreements, options such rights or warrants exercised 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; (c) 5.3.4 any Equity Securities issued in connection with an underwritten public offeringpursuant to the acquisition of another corporation by the Company by merger, purchase of all or substantially all of the assets, or other reorganization; (d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination whereby the stockholders 5.3.5 shares of the Company will own more than fifty percent (50%) of the voting power of the combined entity; (e) any Equity Securities Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (f) 5.3.6 shares of Common Stock issued upon conversion of the Shares; 5.3.7 any Equity Securities issued in connection with an equipment purchase or leasing transaction or a revolving credit or term loan transaction where the principal purpose of such transaction is not to receive additional capital from the issuance of such Equity Securities; 5.3.8 any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; 5.3.9 shares of the Company's Common Stock or Preferred Stock or options or warrants for the purpose of such securities issued in connection with strategic transactions involving the Company and other entities, including (A) joint ventures, manufacturing, marketing or distribution arrangements or (B) technology transfer or development arrangements; *CONFIDENTIAL TREATMENT REQUESTEDprovided that such strategic transactions and the issuance of shares therein, has been approved by two-thirds (2/3) of the authorized members of the Company's Board of Directors; 5.3.10 shares of Equity Securities issued in connection with the acquisition of a license, technology transfer or acquisition or similar transaction; provided that such license transaction, and the issuance of shares therein, have been approved by two-thirds (2/3) of the authorized members of the Company's Board of Directors; 5.3.11 shares of Equity Securities issued by the unanimous consent of the Board of Directors of the Company; and 5.3.12 shares of Equity Securities issued by amendment, waiver or extension of any securities issued prior to the First Closing, as such term is defined in the Purchase Agreement, or issued pursuant to clauses 5.3.1 through 5.3.11 hereof.

Excluded Securities. The right rights of first refusal established by Section 10.1 this Article IV shall have no application to any of the following Equity Securities: (a) shares 4.7.1 Shares of Common Stock (and/or options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other compensatory arrangements that are approved by the Board of DirectorsDirectors of the Company; (b) any Equity Securities 4.7.2 Stock issued pursuant to any rights, agreementsrights or agreements outstanding as of the date of this Agreement, options or and warrants outstanding as of the date of this Agreement, and stock issued pursuant to any rights, agreements, options such rights or warrants exercised agreements granted after the date of this Agreement, provided that the rights of first refusal established by this Article IV applied with respect to the initial sale or grant by the Company of such rights or agreements; (c) any Equity Securities issued in connection with an underwritten public offering; (d) any 4.7.3 Any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination whereby combination; 4.7.4 Any Equity Securities that are issued by the stockholders Company as part of an underwritten public offering referred to in Section 4.4 hereof; 4.7.5 Shares of Series A and Series B Preferred Stock issued after the date hereof; provided, however, that such Series A and Series B Preferred Stock are deemed to be "Shares" pursuant to Section 2.3 of the Company will own more than fifty percent (50%) Series A Agreement and Section 2.3 of the voting power of the combined entityPurchase Agreement, respectively; (e) any Equity Securities 4.7.6 Stock, warrants or other securities or rights issued in connection with any stock splitequipment leasing or bank financing transactions, stock dividend or recapitalization by the Companyprovided such issuances are for other than primarily equity financing purposes; 4.7.7 Stock, warrants or other securities or rights issued to academic or research institutions in connection with (fi) shares the license of Common Stock technology from such institutions or (ii) research and development services provided by such institutions; 4.7.8 Stock, warrants or other securities or rights issued upon conversion in connection with a transaction with a corporation or other third party which is not primarily in the business of any Equity Securities; *CONFIDENTIAL TREATMENT REQUESTEDmaking equity investments that also involves other strategic elements such as, but not by way of limitation, a joint marketing agreement, a license agreement or a technology development agreement;

Excluded Securities. The right rights of first refusal established by Section 10.1 this Article V shall have no application to any of the following Equity Securities: (a) 5.5.1 shares of Common Stock (and/or options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued to employees, officers or directors of, or consultants or advisors to to, the Company or any subsidiary, pursuant to stock purchase or stock option plans or other compensatory arrangements that are approved by the Board of DirectorsBoard; (b) any Equity Securities 5.5.2 stock issued pursuant to any rights, agreementsrights or agreements outstanding as of the date of this Agreement, options or and warrants outstanding as of the date of this Agreement, and stock issued pursuant to any rights, agreements, options such rights or warrants exercised agreements granted after the date of this Agreement, provided that the rights of first refusal established by this Article V applied with respect to the initial sale or grant by the Company of such rights or agreements; (c) any Equity Securities issued in connection with an underwritten public offering; (d) 5.5.3 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 entitycombination; (e) 5.5.4 any Equity Securities that are issued by the Company as part of an underwritten public offering referred to in Section 5.3 hereof; 5.5.5 shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (f) 5.5.6 shares of Common Stock issued upon conversion of the Shares; and 5.5.7 any Equity Securities; *CONFIDENTIAL TREATMENT REQUESTEDSecurities issued pursuant to any equipment leasing arrangement or bank financing.

Excluded Securities. The right rights of first refusal established by this Section 10.1 3 shall have no application to any of the following Equity Securities: (a) shares of Common Stock (and/or options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued 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 compensatory arrangements that are approved by the Board of Directors;. (b) any Equity Securities stock issued pursuant to any rights, agreements, rights or agreements outstanding as of the date of this Agreement; options or and warrants outstanding as of the date of this Agreement, ; and stock issued pursuant to any rights, agreements, options such rights or warrants exercised agreements granted after the date of this AgreementAgreements; 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; (c) any Equity Securities issued in connection with an underwritten public offering; (d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination whereby approved by the stockholders Board of the Company will own more than fifty percent (50%) of the voting power of the combined entityDirectors; (ed) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (fe) shares of Common Stock issued upon conversion of the Company's Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock; and (f) any Equity Securities; *CONFIDENTIAL TREATMENT REQUESTEDSecurities that are issued to the public by the Company pursuant to a registration statement filed under the Securities Act of 1933, as amended.

Excluded Securities. The right rights of first refusal established by this Section 10.1 4 shall have no application to any of the following Equity Securities: (a) shares of Common Stock (and/or options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other compensatory arrangements that are approved by the Board of Directors;Directors including at least one director designated by each of the Investors and Founders. (b) any Equity Securities stock issued pursuant to any rights, agreementsrights or agreements outstanding as of the date of this Agreement, options or and warrants outstanding as of the date of this Agreement, ; and stock issued pursuant to any rights, agreements, options such rights or warrants exercised 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; (c) any Equity Securities issued in connection with an underwritten public offering; (d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination whereby that is approved by the stockholders Board of the Company will own more than fifty percent (50%) of the voting power of the combined entityDirectors; (ed) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (fe) shares of Common Stock issued upon conversion of the Shares; (f) any Equity SecuritiesSecurities issued pursuant to any equipment leasing arrangement, or debt financing from a bank or similar financial institution; *CONFIDENTIAL TREATMENT REQUESTEDand (g) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act.

Excluded Securities. The right rights of first refusal established by this Section 10.1 4 shall have no application to any of the following Equity Securities: (a) 4.6.1 up to 3,569,000 shares of Common Stock (and/or 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 compensatory arrangements that are approved by the Board (including therein options outstanding on the date hereof) plus any shares reacquired by the Company from such persons upon termination of Directorssuch persons' service relationship with the Company; (b) any Equity Securities 4.6.2 stock issued pursuant to any rights, agreementsrights or agreements outstanding as of the date of this Agreement, options or and warrants outstanding as of the date of this Agreement, ; and stock issued pursuant to any rights, agreements, options such rights or warrants exercised 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; (c) any Equity Securities issued in connection with an underwritten public offering; (d) 4.6.3 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 entitycombination; (e) 4.6.4 any Equity Securities that are issued by the Company as part of an underwritten public offering referred to in Section 4.4 hereof; 4.6.5 shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (f) 4.6.6 shares of Common Stock issued upon conversion of the Preferred Stock; and 4.6.7 any Equity Securities; *CONFIDENTIAL TREATMENT REQUESTEDSecurities issued pursuant to any equipment leasing arrangement or bank financing approved by the Company's Board of Directors.

Excluded Securities. The right rights of first refusal established by this Section 10.1 4 shall have no application to any of the following Equity Securities: (a) shares of Class A Common Stock (and/or options, warrants or other Class A Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other compensatory arrangements that are approved by the Board of Directors; (b) any Equity Securities stock issued pursuant to any rights, agreementsrights or agreements outstanding as of the date of this Agreement, options or and warrants outstanding as of the date of this Agreement, ; and stock issued pursuant to any rights, agreements, options such rights or warrants exercised 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; (c) any Equity Securities issued in connection with an underwritten public offering; (d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination whereby the stockholders of the Company will own more than fifty percent (50%) of the voting power of the combined entitycombination; (ed) any Equity Securities shares of Class A Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (e) any Equity Securities issued pursuant to any equipment leasing arrangement, or debt financing from a bank or similar financial institution; (f) 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 upon conversion of any Equity Securities; *CONFIDENTIAL TREATMENT REQUESTEDin connection with strategic transactions involving the Company and other entities, such as (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer,

Excluded Securities. The right rights of first refusal established by this Section 10.1 4 shall have no application to any of the following Equity Securities: (a) 4.5.1 shares of Common Stock (and/or options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans compensation plans, agreements, or other compensatory arrangements that are approved by the Board of Directors; (b) any Equity Securities 4.5.2 stock, options or warrants issued pursuant to any rights, agreements, rights or agreements outstanding as of the date of this Agreement, 4.5.3 options or and warrants outstanding as of the date of this Agreement, and ; 4.5.4 stock issued pursuant to any rights, agreements, options such rights or warrants exercised 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; (c) any Equity Securities issued in connection with an underwritten public offering; (d) 4.5.5 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 entitycombination; (e) any Equity Securities 4.5.6 shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (f) 4.5.7 shares of Common Stock issued upon conversion of the Shares; 4.5.8 any Equity SecuritiesSecurities issued pursuant to any equipment leasing arrangement or debt financing from a bank or similar financial institution or issued in connection with a bridge financing; 4.5.9 any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; *CONFIDENTIAL TREATMENT REQUESTEDprovided that such strategic transactions and the issuance of shares therein has been approved by the Board of Directors; and

Excluded Securities. The right rights of first refusal established by Section 10.1 this Article 4 shall have no application to any of the following Equity Securities: (a) shares of Common Stock (and/or 4.6.1 options, warrants or other Common Stock purchase rights or Common Stock issued pursuant to such options, warrants or other rights) issued or to be issued to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other compensatory arrangements that are approved by the Board of Directors; (b) any Equity Securities 4.6.2 stock issued pursuant to any rights, agreementsoptions, options warrants or warrants agreements outstanding as of the date of this Agreement, ; and stock issued pursuant to any such rights, agreementsoptions, options warrants or warrants exercised agreements granted after the date of this Agreement, provided that the rights of first refusal established by this Article 4 applied with respect to the initial sale or grant by the Company of such rights or agreements; (c) any Equity Securities issued in connection with an underwritten public offering; (d) 4.6.3 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 entitycombination; (e) any Equity Securities 4.6.4 shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (f) 4.6.5 shares of Common Stock issued upon conversion of the Shares; 4.6.6 any Equity SecuritiesSecurities issued pursuant to any equipment leasing arrangement or bank financing; 4.6.7 any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; *CONFIDENTIAL TREATMENT REQUESTEDand 4.6.8 shares of the Company's Common Stock or Preferred Stock issued in connection with strategic transactions involving the Company and other entities, including (A) joint ventures, manufacturing, marketing or distribution arrangements or (B) technology transfer or development arrangements; provided that such strategic transactions and the issuance of shares therein, has been approved by the Company's Board of Directors in accordance with the terms hereof.

Excluded Securities. The right anti-dilution rights and rights of first refusal established by this Section 10.1 4 shall have no application to the issuance of any of the following Equity Securities: (a) up to an aggregate amount of 14,000,000 shares of Common 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 or splits with respect to such shares) issued or to be issued to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other compensatory arrangements that are approved by the Board of Directors; (b) any Equity Securities stock issued pursuant to any rights, agreementsrights or agreements outstanding as of the date of this Amended and Restated Agreement, options or and warrants outstanding as of the date of this Amended and Restated Agreement, ; and stock issued pursuant to any rights, agreements, options such rights or warrants exercised agreements granted after the date of this Amended and Restated 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; (c) any Equity Securities issued in connection with an underwritten public offering; (d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination whereby the stockholders of the Company will own more than fifty percent (50%) of the voting power of the combined entitycombination; (ed) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (fe) shares of Common Stock issued upon conversion in the Subsequent Financing; or (f) with regard to the rights of any Equity Securities; *CONFIDENTIAL TREATMENT REQUESTEDfirst refusal, shares of Common Stock issued in connection with the anti-dilution right provided in Section 4.1 hereof.

Excluded Securities. The right rights of first refusal established by this Section 10.1 4 shall have no application to any of the following Equity Securities (collectively, “Excluded Securities:”): (a) shares of Common Stock (and/or options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued to employees, officers or directors of, or consultants or advisors to to, the Company or any subsidiarysubsidiary of the Company, pursuant to stock purchase or stock option plans or other compensatory arrangements that are approved by the Board of Directors; (b) any Equity Securities 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 exercised after the date of this Agreement; (c) any Equity Securities issued in connection with an underwritten public offering; (d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination whereby approved by the stockholders Board of the Company will own more than fifty percent (50%) of the voting power of the combined entityDirectors; (ec) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (fd) shares of Common Stock issued upon conversion of the Series E Preferred Stock or the Series F Preferred Stock; (e) any Equity Securities issued in connection with (i) any equipment leasing, loan arrangement, or debt refinancing from a bank or similar financial or lending institution approved by the Board of Directors or (ii) any arrangement approved by the Board of Directors where the Company licenses intellectual property from any third party and no cash is contributed by such third party to the Company in exchange for the Equity Securities; (f) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; (g) any Equity Securities issued to Xxxxxx pursuant to Section 4.5, below, in a Non-Cash Transaction (as defined below); *CONFIDENTIAL TREATMENT REQUESTEDand (h) any Equity Securities issued pursuant to the recapitalization pursuant to Article IX of the Sixth Amended and Restated Certificate of Incorporation of the Company.

Excluded Securities. The right of first refusal preemptive rights established by this Section 10.1 4 shall have no application to any of the following Equity Securities: (a) : shares of Common Stock (and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights) rights issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other compensatory arrangements that are approved by the Board of Directors; (b) any Equity Securities Board; stock issued or issuable pursuant to any rights, rights or agreements, options options, warrants or warrants convertible securities outstanding as of the date of this Agreement, ; and stock issued pursuant to any rights, agreements, options such rights or warrants exercised agreements granted after the date of this Agreement; (c) , so long as the rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any Equity Securities issued in connection provision of this Section 4.7 with an underwritten public offering; (d) respect to the initial sale or grant by the Company of such rights or agreements; any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination whereby approved by the stockholders of the Company will own more than fifty percent (50%) of the voting power of the combined entity; (e) Board; any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company; (f) shares of Common Stock issued upon conversion of ; any Equity SecuritiesSecurities 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; *CONFIDENTIAL TREATMENT REQUESTEDand any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act.

Excluded Securities. The right rights of first refusal established by this Section 10.1 5 shall have no application to any of the following Equity Securities: (a) shares of Common Stock (and/or options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other compensatory arrangements that are approved by the Board of Directors; (b) any Equity Securities stock issued pursuant to any rightsrights or agreements outstanding as of the date of this Agreement, agreements, including options or and warrants outstanding as of the date of this Agreement, and stock issued pursuant to any rights, agreements, options such rights or warrants exercised 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; (c) any Equity Securities issued in connection with an underwritten public offering; (d) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination whereby the stockholders of the Company will own more than fifty percent (50%) of the voting power of the combined entitycombination; (ed) any Equity Securities shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (fe) shares of Common Stock issued upon conversion of the Shares; (f) any Equity SecuritiesSecurities issued in connection with any technology licensing, corporate Partnering, equipment leasing arrangement, debt financing or similar transaction approved by the Board of Directors; *CONFIDENTIAL TREATMENT REQUESTEDand (g) any Equity Securities that are issued by the Company in the Initial Offering.

Excluded Securities. The right rights of first refusal established by Section 10.1 this Article III shall have no application to any of the following Equity Securities: (a) 3.6.1 shares of Common Stock (and/or options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other compensatory arrangements that are approved by the Board of Directors; (b) any Equity Securities 3.6.2 stock issued pursuant to any rights, agreements, options rights or warrants agreements outstanding as of the date of this Agreement, options and warrants (other than options, warrants or other Common Stock purchase rights covered by Section 3.6.1 above) outstanding as of the date of this Agreement; and stock issued pursuant to any rights, agreements, options such rights or warrants exercised agreements granted after the date of this Agreement, provided that the rights of first refusal established by this Article III applied with respect to the initial sale or grant by the Company of such rights or agreements; (c) any Equity Securities issued in connection with an underwritten public offering; (d) 3.6.3 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 entitycombination; (e) any Equity Securities 3.6.4 shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (f) 3.6.5 any Equity Securities issued pursuant to any equipment leasing arrangement, or bank financing; 3.6.6 any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; and 3.6.7 shares of the Company's Common Stock or Preferred Stock issued upon conversion in connection with strategic transactions involving the Company and other entities, including (A) joint ventures, manufacturing, marketing or distribution arrangements or (B) technology transfer or development arrangements; provided that such strategic transactions and the issuance of any Equity Securities; *CONFIDENTIAL TREATMENT REQUESTEDshares therein, has been approved by the Company's Board of Directors.

Excluded Securities. The right rights of first refusal offer established by Section 10.1 this Article IV shall have no application to any of the following Equity Securities: (a) 4.6.1 shares of Common Stock (and/or options, warrants or other rights to purchase Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other compensatory arrangements that are approved by the Board of Directors; (b) any Equity Securities 4.6.2 stock issued pursuant to any rightsrights or agreements outstanding as of the date of this Agreement, agreements, stock issued pursuant to any options or and warrants outstanding as of the date of this Agreement, and stock issued pursuant to any rights, agreements, options rights or warrants exercised agreements granted after the date of this Agreement; provided that the rights of first refusal established by this Article IV applied with respect to the initial sale or grant by the Company of such rights or agreements; (c) any Equity Securities issued in connection with an underwritten public offering; (d) 4.6.3 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 entitycombination; (e) any Equity Securities 4.6.4 shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (f) 4.6.5 shares of Common Stock issued upon conversion of the Shares; 4.6.6 any Equity SecuritiesSecurities issued pursuant to any equipment leasing arrangement, or commercial financing; 4.6.7 any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act; *CONFIDENTIAL TREATMENT REQUESTEDand 4.6.8 shares of the Company's Common Stock or Preferred Stock issued in connection with strategic transactions involving the Company and other entities, including (A) joint ventures, manufacturing, marketing or distribution arrangements or (B) technology transfer or development arrangements; provided that such strategic transaction and the issuance of shares therein, have been approved by the Company's Board of Directors.

Excluded Securities. The right rights of first refusal established by Section 10.1 this Article IV shall have no application to any of the following Equity Securities: (a) 4.7.1 shares of Common Stock (and/or options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other compensatory arrangements that are approved by the Board of DirectorsBoard; (b) any Equity Securities 4.7.2 stock issued pursuant to any rights, agreements, options or warrants outstanding as of the date of this Agreement, Agreement and stock issued pursuant to any such rights, agreements, options or warrants exercised granted after the date of this Agreement, provided that the rights of first refusal established by this Article IV applied with respect to the initial sale or grant by the Company of such rights, agreements, options or warrants; (c) any Equity Securities issued in connection with an underwritten public offering; (d) 4.7.3 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 entitycombination; (e) 4.7.4 any Equity Securities that are issued by the Company as part of an underwritten public offering referred to in Section 4.3 hereof; 4.7.5 shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (f) 4.7.6 shares of Common Stock issued upon conversion of the Series A Preferred Stock or the Series B Preferred Stock; and 4.7.7 any Equity Securities; *CONFIDENTIAL TREATMENT REQUESTEDSecurities issued pursuant to any equipment leasing arrangement, bank financing, licenses or nonfinancial business arrangements.