SC 13D

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

SCHEDULE 13D

(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED

PURSUANT TO RULE 13d-l(a) AND AMENDMENTS THERETO

FILED PURSUANT TO RULE 13d-2(a)

(Amendment No. )*

Uni-Pixel, Inc.

(Name of Issuer)

Common Stock, par value $.001 per share

(Title of Class of Securities)

904572104

(CUSIP number)

Tudor Investment Corporation

Attn: Stephen N. Waldman, Esq.

1275 King Street

Greenwich, CT 06831

Tel: (203) 863-6700

(Name, address and telephone number of person authorized to receive notices and communications)

February 13, 2007

(Date of event which requires filing of this statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box o.

Note. Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent.

(Continued on the following pages)

(Page 1 of 12Pages)

_____________________

*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act.

CUSIP No. 904572104 13D Page 2

	1	Name of Reporting Person. I.R.S. Identification Nos. of above persons (entities only) Tudor Investment Corporation 22-2514825
	2	Check the Appropriate Box if a Member of a Group (See Instructions) (a) [_] (b) [X]
	3	SEC Use Only
	4	Source of Funds (See Instructions) OO
	5	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) [_]
	6	Citizenship or Place of Organization	Delaware
Number of Shares	7	Sole Voting Power	0
Beneficially Owned by	8	Shared Voting Power	20,915,960 (see Item 5)
Each Reporting	9	Sole Dispositive Power	0
Person With	10	Shared Dispositive Power	20,915,960 (see Item 5)
	11	Aggregate Amount Beneficially Owned by Each Reporting Person 20,915,960 (see Item 5)
	12	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [X]
	13	Percent of Class Represented by Amount in Row (11) 53.4% (see Item 5)
	14	Type of Reporting Person (See Instructions) CO

CUSIP No. 904572104 13D Page 3

	1	Name of Reporting Person. I.R.S. Identification Nos. of above persons (entities only) Paul Tudor Jones, II
	2	Check the Appropriate Box if a Member of a Group (See Instructions) (a) [_] (b) [X]
	3	SEC Use Only
	4	Source of Funds (See Instructions) OO
	5	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) [_]
	6	Citizenship or Place of Organization	USA
Number of Shares	7	Sole Voting Power	0
Beneficially Owned by	8	Shared Voting Power	22,839,279(see Item 5)
Each Reporting	9	Sole Dispositive Power	0
Person With	10	Shared Dispositive Power	22,839,279 (see Item 5)
	11	Aggregate Amount Beneficially Owned by Each Reporting Person 22,839,279 (see Item 5)
	12	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [X]
	13	Percent of Class Represented by Amount in Row (11) 58.3% (see Item 5)
	14	Type of Reporting Person (See Instructions) IN

CUSIP No. 904572104 13D Page 4

	1	Name of Reporting Person. I.R.S. Identification Nos. of above persons (entities only) James J. Pallotta
	2	Check the Appropriate Box if a Member of a Group (See Instructions) (a) [_] (b) [X]
	3	SEC Use Only
	4	Source of Funds (See Instructions) OO
	5	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) [_]
	6	Citizenship or Place of Organization	USA
Number of Shares	7	Sole Voting Power	(see Item 5)
Beneficially Owned by	8	Shared Voting Power	22,839,279 (see Item 5)
Each Reporting	9	Sole Dispositive Power	(see Item 5)
Person With	10	Shared Dispositive Power	22,839,279 (see Item 5)
	11	Aggregate Amount Beneficially Owned by Each Reporting Person 22,839,279 (see Item 5)
	12	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [X]
	13	Percent of Class Represented by Amount in Row (11) 58.3% (see Item 5)
	14	Type of Reporting Person (See Instructions) IN

CUSIP No. 904572104 13D Page 5

	1	Name of Reporting Person. I.R.S. Identification Nos. of above persons (entities only) The Tudor BVI Global Portfolio Ltd. 98-0223576
	2	Check the Appropriate Box if a Member of a Group (See Instructions) (a) [_] (b) [X]
	3	SEC Use Only
	4	Source of Funds (See Instructions) OO
	5	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) [_]
	6	Citizenship or Place of Organization	Cayman Islands
Number of Shares	7	Sole Voting Power	0
Beneficially Owned by	8	Shared Voting Power	3,572,200 (see Item 5)
Each Reporting	9	Sole Dispositive Power	0
Person With	10	Shared Dispositive Power	3,572,200 (see Item 5)
	11	Aggregate Amount Beneficially Owned by Each Reporting Person 3,572,200 (see Item 5)
	12	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [X]
	13	Percent of Class Represented by Amount in Row (11) 9.1% (see Item 5)
	14	Type of Reporting Person (See Instructions) CO

CUSIP No. 904572104 13D Page 6

	1	Name of Reporting Person. I.R.S. Identification Nos. of above persons (entities only) Tudor Proprietary Trading L.L.C. 13-3720063
	2	Check the Appropriate Box if a Member of a Group (See Instructions) (a) [_] (b) [X]
	3	SEC Use Only
	4	Source of Funds (See Instructions) OO
	5	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) [_]
	6	Citizenship or Place of Organization	Delaware
Number of Shares	7	Sole Voting Power	0
Beneficially Owned by	8	Shared Voting Power	1,923,319 (see Item 5)
Each Reporting	9	Sole Dispositive Power	0
Person With	10	Shared Dispositive Power	1,923,319 (see Item 5)
	11	Aggregate Amount Beneficially Owned by Each Reporting Person 1,923,319 (see Item 5)
	12	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [X]
	13	Percent of Class Represented by Amount in Row (11) 4.9% (see Item 5)
	14	Type of Reporting Person (See Instructions) CO

CUSIP No. 904572104 13D Page 7

	1	Name of Reporting Person. I.R.S. Identification Nos. of above persons (entities only) The Altar Rock Fund L.P. 06-1558414
	2	Check the Appropriate Box if a Member of a Group (See Instructions) (a) [_] (b) [X]
	3	SEC Use Only
	4	Source of Funds (See Instructions) OO
	5	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) [_]
	6	Citizenship or Place of Organization	Delaware
Number of Shares	7	Sole Voting Power	0
Beneficially Owned by	8	Shared Voting Power	146,308 (see Item 5)
Each Reporting	9	Sole Dispositive Power	0
Person With	10	Shared Dispositive Power	146,308 (see Item 5)
	11	Aggregate Amount Beneficially Owned by Each Reporting Person 146,308 (see Item 5)
	12	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [X]
	13	Percent of Class Represented by Amount in Row (11) 0.4% (see Item 5)
	14	Type of Reporting Person (See Instructions) PN

CUSIP No. 904572104 13D Page 8

	1	Name of Reporting Person. I.R.S. Identification Nos. of above persons (entities only) The Raptor Global Portfolio Ltd. 98-0211544
	2	Check the Appropriate Box if a Member of a Group (See Instructions) (a) [_] (b) [X]
	3	SEC Use Only
	4	Source of Funds (See Instructions) OO
	5	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) [_]
	6	Citizenship or Place of Organization	Cayman Islands
Number of Shares	7	Sole Voting Power	0
Beneficially Owned by	8	Shared Voting Power	17,197,452 (see Item 5)
Each Reporting	9	Sole Dispositive Power	0
Person With	10	Shared Dispositive Power	17,197,452 (see Item 5)
	11	Aggregate Amount Beneficially Owned by Each Reporting Person 17,197,452 (see Item 5)
	12	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [X]
	13	Percent of Class Represented by Amount in Row (11) 43.9% (see Item 5)
	14	Type of Reporting Person (See Instructions) CO

CUSIP No. 904572104 13D Page 9

Schedule 13D

ITEM 1.Security and Issuer

The class of equity security to which this statement on Schedule 13D relates is the common stock, par value $0.001 per share (the “Common Stock”), of Uni-Pixel, Inc., a corporation organized under the laws of the state of Delaware (the “Company”). The Company’s principal offices are located at 8708 Technology Forest Place, Suite 100, The Woodlands, Texas 77381.

This filing of the Schedule 13D is not, and should not be deemed to be, an admission that the statement on Schedule 13D or that any Amendment thereto is required to be filed.

ITEM 2.Identity and Background.

This statement on Schedule 13D is being filed jointly on behalf of the following persons pursuant to Rule 13d-1(k) promulgated by the Securities and Exchange Act of 1934, as amended (the “Act”):

(i)	Tudor Investment Corporation (“TIC”), a Delaware corporation.
(ii)	Paul Tudor Jones, II (“Jones”), a citizen of the United States.
(iii)	James J. Pallotta (“Pallotta”), a citizen of the United States.
(iv)	The Tudor BVI Global Portfolio Ltd. (“BVI”), a Cayman Islands company.
(v)	Tudor Proprietary Trading, L.L.C. (“TPT”), a Delaware limited liability company.
(vi)	The Raptor Global Portfolio Ltd. (“Raptor”), a Cayman Islands corporation.
(vii)	The Altar Rock Fund L.P. (“Altar Rock” and together with TIC, Jones, Pallotta, BVI, TPT, and Raptor, the “Group” or the “Reporting Persons” and each a “Reporting Person”), a Delaware limited partnership

TIC is a money management firm that provides investment advice to BVI, Raptor and Altar Rock among others. TIC is also the sole general partner of Altar Rock.

The principal employment of Jones is as Chairman and Chief Executive Officer of TIC, of which he owns a majority of the capital stock and voting securities.

 

CUSIP No. 904572104 13D Page 10

The principal employment of Pallotta is as Vice Chairman of TIC, of which he is a Portfolio Manager and may be deemed to have voting and investment authority with respect to the securities of the Company.

Each of BVI, Raptor and Altar Rock is an investment fund which principally invests in debt, equity, derivative securities and other financial instruments for the benefit of the holders of its partnership, stock and other capital securities.

TPT is a proprietary trading vehicle which principally invests in debt, equity, derivative securities and other financial instruments for the benefit of the holders of its capital securities.

The business address of TIC, Jones, TPT, and Altar Rock is c/o Tudor Investment Corporation, 1275 King Street, Greenwich, CT 06831. The business address of Pallotta is c/o Tudor Investment Corporation, 50 Rowes Wharf, 6^th Floor, Boston, MA 02110. The business address of BVI and Raptor is c/o CITCO Fund Services, Kaya Flamboyan 9, Curacao, Netherlands Antilles.

The name, residence or business address, present principal occupation or employment, the name, principal business and address of any corporation or other organization in which such employment is conducted and the citizenship of each natural person that is a director or executive officer of TIC, TPT, BVI, or Raptor is set forth on Schedule I hereto and is incorporated by reference herein.

During the last five (5) years, no Reporting Person, or to the best knowledge and belief of the Reporting Persons, any of the individuals listed on Schedule I hereto, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). During the last five (5) years, no Reporting Person was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which any such person was or is subject to a judgment, decree or final order enjoining future violations, or prohibiting or mandating activities subject to Federal or State securities laws or finding any violation with respect to such laws.

The Reporting Persons are filing this statement on Schedule 13D jointly and in accordance with the provisions of Rule 13d-1(k)(1) of the Act.

Pursuant to Rule 13d-4 of the Act, each of the Reporting Persons expressly declares that the filings of this statement on Schedule 13D shall not be construed as an admission that any such person is, for purposes of Section 13(d) and/or Section 13(g) of the Act or otherwise, the beneficial owner of any securities held by any other person.

ITEM 3.Source and Amount of Funds or Other Consideration.

The sources of funds used to purchase shares of Common Stock (the “Shares”) by each of the Reporting Persons were (i) capital contributions to such Reporting Person and (ii) the proceeds of transactions with respect to prior investments held by such Reporting Persons.

ITEM 4.Purpose of Transactions.

Each of Mr. Pallotta, BVI, TPT, Raptor and Altar Rock initially acquired the Shares for investment purposes. Each of such Reporting Person intends to continue to evaluate their respective investments in the Shares based on the Company’s financial condition, results of operations and prospects as well as other then existing or anticipated facts and circumstances including general economic, market and other financial conditions. Accordingly, each of the Reporting Persons reserves the right to change its plans and intentions with respect to its investment in securities of the Company at any time, as it deems appropriate. In particular, each of the Reporting Persons may at any time and from time to time (i) acquire additional Shares or other securities of the Company, (ii) dispose of Shares or other securities of the Company, or (iii) enter into privately negotiated derivative transactions with institutional counterparties to hedge the market risk of some or all of its positions in the Shares or other securities of the Company. There can be no assurance that any Reporting Person will increase or decrease its investment in the Company or as to the number of shares of Common Stock or derivative securities that may be bought or sold in any such transactions.

Except as set forth in this Schedule 13D, none of the Reporting Persons currently has any plans or proposals which relate to or would result in any of the transactions, actions or events enumerated in paragraphs (a) through (j) of the instructions to Item 4 of Schedule 13D.

ITEM 5.Interest in Securities of the Issuer.

The descriptions contained in Item 2 and Item 4 above are incorporated herein by reference.

 

CUSIP No. 904572104 13D Page 11

On February 13, 2007, BVI purchased 500,499.20 shares of Series B Preferred Stock, par value $0.001, of the Company (the “Preferred Stock”), TPT purchased 269,475.20 shares of Preferred Stock, Raptor purchased 2,409,526.40 shares of Preferred Stock, and Altar Rock purchased 20,499.20 shares of Preferred Stock. Each share of Preferred Stock is convertible at any time into five Shares at an initial conversion price of $0.75 per Share, which conversion price is subject to adjustment from time to time pursuant to the Certificate of Designations for the Preferred Stock (the “Certificate of Designations”).

In addition, in connection with the purchase of the Preferred Stock, each of BVI, TPT, Raptor and Altar Rock received warrants to purchase Shares (the “Warrants”). BVI received 1,069,704 Warrants, TPT received 575,943 Warrants, Raptor received 5,149,820 Warrants and Altar Rock received 43,812 Warrants. Each Warrant may be exercised for one Share at an initial exercise price per share of $1.24, which exercise price is subject to adjustment from time to time pursuant to the terms of the Warrants.

Assuming conversion by each of BVI, TPT, Raptor and Altar Rock of the Preferred Stock and exercise of the Warrants, such Reporting Persons hold approximately 9.1%, 4.9%, 43.9% and 0.4% of the Common Stock, respectively.

Because TIC is sole general partner of Altar Rock and provides investment advisory services to BVI, Raptor and Altar Rock, TIC may be deemed to beneficially own the Shares owned by each such Reporting Person. Because Jones is the controlling shareholder of TIC and the indirect principal equity owner of TPT, Jones may be deemed to beneficially own the Shares deemed beneficially owned by each such Reporting Person. Because Pallotta is a portfolio manager of TIC and TPT with respect to the Shares and may be deemed to have voting and investment authority with respect to the Shares of the Company, Mr. Pallotta may be deemed to beneficially own the Shares deemed beneficially owned by each such Reporting Person.

Pursuant to Rule 13d-4 of the Act, each of the Reporting Persons expressly declares that the filings of this statement on Schedule 13D shall not be construed as an admission that any such person is, for purposes of Section 13(d) and/or Section 13(g) of the Act or otherwise, (i) the beneficial owner of any securities held by any other person, or (ii) the beneficial owner of any securities held or beneficially owned by any member of the Group other than such Reporting Person.

The filing of this statement on Schedule 13D by each of the Reporting Persons shall not be considered an admission that such Reporting Person, for the purposes of Section 13(d) of the Act, is the beneficial owner of any Shares in which such Reporting Person does not have a pecuniary interest.

Except as reported in this statement on Schedule 13D, the Reporting Persons have not engaged in any other transactions in the Company’s securities in the past sixty (60) days.

ITEM 6.Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

Each of the Reporting Persons entered into (i) a Securities Purchase Agreement, dated as of February 13, 2007, with the Company in the form attached hereto as Exhibit 1 (which is hereby incorporated by reference herein), (ii) an Investors’ Rights Agreement, dated as of February 13, 2007, with the Company in the form attached hereto as Exhibit 2 (the “Investors’ Rights Agreement”, which is hereby incorporated by reference herein), and (iii) certificates for the Warrants in the form attached hereto as Exhibit 3 (which is hereby incorporated by reference herein). Subject to certain limitations as set forth in the Investors’ Rights Agreement, the Reporting Persons have the right to require the Company to file a registration statement with the Securities and Exchange Commission (the “SEC”) with respect to the Common Stock underlying the Preferred Stock and Warrants owned by the Reporting Persons, to participate as selling stockholders in other registration statements filed by the Company with the SEC, and to require the Company to file with the SEC a “shelf” registration statement for an offering to be made on a continuous basis pursuant to Rule 415 promulgated under the Securities Act of 1933, as amended, and to keep such registration effective as more fully described in the Investors’ Rights Agreement.

Additionally, the Certificate of Designations, in the form attached hereto as Exhibit 4 (which is hereby incorporated by reference herein) sets forth the rights, preferences and privileges of the holders of the Preferred Stock. In addition to the right to convert Preferred Stock into Shares, discussed in Item 5 above, such rights, preferences and privileges include the right to receive a cumulative dividend, approval rights over certain actions proposed to be taken by the Company, a preference upon liquidation, dissolution, winding up of, and certain fundamental acquisitions involving, or asset sales by, the Company, the right to appoint two (2) members to the Board of Directors of the Company, and certain redemption rights.

ITEM 7.Materials to be Filed as Exhibits.

The following documents are filed as exhibits to this statement on Schedule 13D:

Exhibit 1. Securities Purchase Agreement, dated as of February 13, 2007, by and among the Company and the Reporting Persons.

Exhibit 2. Investors’ Rights Agreement, dated as of February 13, 2007, by and among the Company and the Reporting Persons.

Exhibit 3. Form of Warrants.

Exhibit 4. Certficate of Designations for the Preferred Stock.

SIGNATURES

After reasonable inquiry and to the best knowledge and belief of each of the persons signing below, each person signing below certifies that the information set forth in this statement on Schedule 13D is true, complete and correct.

After reasonable inquiry and to the best knowledge and belief of each of the persons signing below each person signing below certifies that the information set forth in this statement on Schedule 13D is true complete and correct.

Dated: February 23, 2007

TUDOR INVESTMENT CORPORATION
By:	\s\ William T. Flaherty
	William T. Flaherty
	Managing Director
\s\ Paul Tudor Jones, II
Paul Tudor Jones, II
\s\ James J. Pallotta
James J. Pallotta
THE TUDOR BVI GLOBAL PORTFOLIO LTD.
By:	Tudor Investment Corporation, its trading advisor
By:	\s\ William T. Flaherty
	William T. Flaherty
	Managing Director
TUDOR PROPRIETARY TRADING, L.L.C.
By:	\s\ William T. Flaherty
	William T. Flaherty
	Managing Director
THE RAPTOR GLOBAL PORTFOLIO LTD.
By:	Tudor Investment Corporation, its investment adviser
By:	\s\ William T. Flaherty
	William T. Flaherty
	Managing Director
THE ALTAR ROCK FUND L.P.
By:	\s\ William T. Flaherty
	William T. Flaherty
	Managing Director

EX-1

EXHIBIT 1

UNI-PIXEL, INC.

SECURITIES PURCHASE AGREEMENT

This SECURITIES PURCHASE AGREEMENT (this “Agreement”) is dated as of February 13, 2007, and is by and among UNI-PIXEL, INC., a Delaware corporation, with its principal office at 8708 Technology Forest Place, Suite 100, The Woodlands, Texas 77381 (the “Company”), and each investor listed in Schedule 1 hereto (each such investor individually, a “Purchaser” and, collectively, the “Purchasers”).

WHEREAS the Company desires to issue and sell to the Purchasers, and the Purchasers desire to purchase from the Company, in aggregate, (a) 3,200,000 authorized but unissued shares of the Company’s Series B Preferred Stock, par value $0.001 per share (the “Series B Preferred Stock”), and (b) Warrants (as defined below) to purchase, in aggregate, up to 6,839,279 shares of the Company’s common stock, par value $0.001 (the “Common Stock”), for an aggregate purchase price of $12,000,000, all upon the terms and subject to the conditions set forth in this Agreement; and

WHEREAS, at the Closing (as defined below), the Company and the Purchasers shall enter into that certain Investors’ Rights Agreement, dated as of the Closing, in the form attached hereto as Exhibit A (the “Investors’ Rights Agreement”).

NOW THEREFORE, in consideration of the mutual agreements, representations, warranties and covenants herein contained, the parties hereto agree as follows:

1.Definitions. As used in this Agreement, the following terms shall have the following respective meanings:

“Affiliate” of any Person means any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person, as such terms are used and construed under Rule 144 (as defined below), and with respect to Tudor (as defined below), in addition to the foregoing, the term “Affiliate” shall also include the Related Entities.

“Board” means the Board of Directors of the Company.

“Bridge Loans” means the Company’s 12% Senior Secured Convertible Debentures and 10% Senior Unsecured Convertible Promissory Note.

“Business Day” means any day except Saturday, Sunday and any day which is a federal legal holiday or a day on which banking institutions in the State of New York or Texas are authorized or required by law or other governmental action to close.

“Certificate of Designations” means the Certificate of Designations of the Series B Preferred Stock adopted by the Board and filed on or before the Closing (as defined below) by the Company with the Secretary of State of the State of Delaware in accordance with Delaware law, establishing the rights, preferences and privileges of the Series B Preferred Stock, in the form attached hereto as Exhibit B.

“Conversion Shares” means the shares of Common Stock issuable upon conversion of the Shares pursuant to the terms of the Certificate of Designations.

“Disclosure Schedule” has the meaning set forth in Section 3.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and all of the rules and regulations promulgated thereunder.

“Financial Statements” has the meaning set forth in Section 3.7.

“Financial Statement Date” means the date of the most recent audited financial statements of the Company, which date is December 31, 2005.

“Intellectual Property” means all rights and interests in and to all inventions, invention disclosures, patents, patent applications, trademarks, trademark applications, service marks, tradenames, copyrights, confidential or proprietary information, trade secrets, licenses, domain names, mask works, information and proprietary rights and processes as are material to the conduct of the business of the Company and the Subsidiaries, taken as a whole, whether now conducted or proposed to be conducted.

“Knowledge”(whether or not capitalized) including the phrase “to the Company’s knowledge”includes (a) actual knowledge of the Person, including the actual knowledge of any of the officers or directors of the Company or any of the Subsidiaries, and (b) that knowledge which a prudent businessperson could have obtained in the management of his business after making due inquiry, and after exercising due diligence, with respect thereto.

“Material Adverse Effect” means any event, occurrence or development that has had, or that could reasonably be expected to have, individually or in the aggregate with other events, occurrences or developments, a material adverse effect on the assets, liabilities (contingent or otherwise), business, affairs, operations, prospects or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole; provided, however, that any change resulting from (a) general economic conditions or industry conditions that do not disproportionately affect the Company or its Subsidiaries, (b) the announcement of the transactions contemplated by this Agreement and the performance by the parties of their obligations under this Agreement, (c) any change in law, or (d) any action permitted by this Agreement, shall not constitute a Material Adverse Effect.

“Person” (whether or not capitalized) means an individual, entity, partnership, limited liability company, corporation, association, trust, joint venture, unincorporated organization, and any government, governmental department or agency or political subdivision thereof.

“Related Entities” includes, with respect to Tudor, any entities for which any of the Tudor Entities or its Affiliates serve as a general partner and/or investment advisor or in a similar capacity, and all mutual funds or other pooled investment vehicles or entities under the control or management of any of the Tudor Entities or its Affiliates. For purposes of this Agreement, (a) “Tudor Entities” means each of the following: Tudor Investment Corporation, Tudor Group Holdings LLC, their respective Affiliates, and any Affiliate or Affiliated Group of Tudor Investment Corporation and/or Tudor Group Holdings LLC, and (b) with respect to the Tudor Entities, “Affiliated Group” has the meaning given to it in Section 1504 of the Internal Revenue Code of 1986, as amended, and in addition includes any analogous combined, consolidated, or unitary group, as defined under any applicable state, local or foreign income tax law.

“Rule 144” means Rule 144 promulgated under the Securities Act and any successor or substitute rule, law or provision.

“SEC” means the Securities and Exchange Commission.

“Securities Act” means the Securities Act of 1933, as amended, and all of the rules and regulations promulgated thereunder.

“Shares” means the shares of Series B Preferred Stock issued and sold by the Company to the Purchasers hereunder.

“Share Price” means $3.75 per Share.

“Subsidiaries” means the subsidiaries of the Company listed in Schedule 2-3.17 to the Disclosure Schedule.

“Transaction Documents” means, collectively, the Investors’ Rights Agreement, the Certificate of Designations and the Warrant, including all Schedules and Exhibits thereto and all certificates, opinions and other documents delivered in connection therewith.

“Tudor” means, collectively, The Raptor Global Portfolio Ltd., The Tudor BVI Global Portfolio Ltd., Tudor Proprietary Trading, L.L.C., and The Altar Rock Fund L.P.

“Warrants” means the warrants to purchase up to in aggregate 6,839,279 shares of Common Stock for a purchase price of $1.24 per share, dated as of the Closing Date, issued by the Company to the Purchasers pursuant hereto, in substantially the form attached hereto as Exhibit C.

“Warrant Amendments” means, collectively, the amendments to certain outstanding warrants to purchase shares of Common Stock of the Company in substantially the forms attached hereto as Exhibit D.

“Warrant Shares” means the shares of Common Stock issued or issuable upon the exercise of the Warrants.

2.Purchase and Sale of Shares and Warrants.

2.1Filing of Certificate of Designations. The Company shall adopt and file with the Secretary of State of the State of Delaware, on or before the Closing, the Certificate of Designations.

2.2Purchase and Sale of Shares. Subject to and upon the terms and conditions set forth in this Agreement, the Company agrees to issue and sell to each Purchaser, and each Purchaser hereby agrees, severally and not jointly, to purchase from the Company, at the Closing, the number of Shares set forth opposite such Purchaser’s name in Schedule 1 hereto, at the Share Price.

2.3Issuance of Warrants. Subject to and upon the terms and conditions set forth in this Agreement, the Company agrees to issue to each Purchaser at the Closing, for no further cash consideration, a Warrant to purchase the number of Warrant Shares set forth opposite such Purchaser’s name in Schedule 1 hereto.

2.4Closing. The closing of the purchase and sale of the Shares and Warrants (the “Closing”) shall take place at 10:00 am (Eastern Time) at the offices of Boies, Schiller & Flexner LLP, 575 Lexington Avenue, New York, NY 10022, on February 13, 2007, the date hereof, or on such other date and at such time as may be agreed upon between the Purchasers, on the one hand, and the Company, on the other hand (the “Closing Date”). At the Closing, the Company shall deliver to each Purchaser (i) a single stock certificate (or more, if reasonably requested by the Purchaser), registered in the name of such Purchaser, representing the number of Shares purchased by such Purchaser as described in Section 2.2 hereof and (ii) a Warrant in the name of such Purchaser for the number of Warrant Shares as described in Section 2.3 hereof, against payment by or on behalf of such Purchaser of the aggregate purchase price, as set forth opposite such Purchaser’s name in Schedule 1 hereto, by wire transfer of immediately available funds to such account as the Company shall designate in writing.

3.Representations and Warranties of the Company. The Company hereby represents and warrants to each Purchaser, as of the date hereof and except as set forth on the disclosure schedule attached hereto as Schedule 2 (the “Disclosure Schedule”), as follows:

3.1Incorporation. Each of the Company and the Subsidiaries is a corporation or other entity duly organized, validly existing and in good standing under the laws of the State of Delaware (or such other applicable jurisdiction of incorporation or formation as is indicated in Schedule 2-3.1 to the Disclosure Schedule), and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or the character of the property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, would not result in a Material Adverse Effect. Each of the Company and the Subsidiaries has all requisite corporate power and authority to carry on its business as now conducted and to carry out the transactions contemplated hereby. Neither the Company nor any of the Subsidiaries is in violation of any of the provisions of its Certificate of Incorporation or By-laws (or other charter or governing document).

3.2Capitalization. After giving effect to the Closing, the authorized capital stock of the Company shall consist of:

(a)Common Stock. 100,000,000 shares of Common Stock, of which (i) 16,311,973 shares are duly issued and outstanding as of the Closing Date, (ii) 2,661,667 shares are reserved for issuance upon exercise of outstanding options as of the Closing Date, (iii) 6,282,635 shares are reserved for issuance upon conversion of the Corporation’s Series A Preferred Stock, par value $0.001 (the “Series A Preferred Stock”), (iv) 3,792,900 shares are reserved for issuance upon exercise of currently outstanding warrants to purchase shares of the Common Stock, and (v) 22,839,279 shares are reserved for issuance upon conversion of the Shares and the Warrant Shares.

(b)Preferred Stock. 10,000,000 shares of preferred stock, par value $0.001 per share (the “Preferred Stock”), of which (i) 4,500,000 shares are duly authorized and designated as Series A Preferred Stock as of the Closing Date, (ii) 3,200,000 shares have been designated as Series B Preferred Stock to be issued pursuant to this Agreement, and (iii) no other shares are outstanding or authorized and reserved for issuance as of the Closing Date. The rights, preferences and privileges of the Series B Preferred Stock are as stated in the Certificate of Designations and as otherwise provided by the Delaware General Corporation Law. The rights, preferences and privileges of the Series A Preferred Stock are as stated in the Certificate of Designations of the Series A Preferred Stock adopted by the Board and filed by the Company with the Secretary of State of the State of Delaware on December 9, 2004, in accordance with Delaware law, and as otherwise provided by the Delaware General Corporation Law.

(c)All shares of the Company’s issued and outstanding capital stock have been duly authorized, are validly issued and outstanding, and are fully paid and nonassessable.

(d)Except for (i) the conversion privileges of the Series B Preferred Stock to be issued pursuant to this Agreement, (ii) the Warrants and (iii) as set forth in Schedule 2-3.2(d) to the Disclosure Schedule, there are no existing options, warrants, calls, preemptive (or similar) rights, subscriptions or other rights, agreements, arrangements or commitments of any character obligating the Company to issue, transfer or sell, or cause to be issued, transferred or sold, any shares of the capital stock of the Company or other equity interests in the Company or any securities or instruments convertible into or exchangeable or exercisable for such shares of capital stock or other equity interests, and there are no outstanding rights, agreements, arrangements or commitments of any character obligating the Company to repurchase, redeem or otherwise acquire any shares of its capital stock or other equity interests. The issuance and sale of the Shares and the Warrants and the issuance of Conversion Shares and Warrant Shares pursuant to the terms of the Series B Preferred Stock and the Warrants, respectively, will not obligate the Company to issue or sell, pursuant to any preemptive right or otherwise, shares of Common Stock or other securities to any Person (other than pursuant to the terms of the Series B Preferred Stock and the Warrants) and, except as set forth in Schedule 2-3.2(d), will not result in a right of any holder of capital stock or other securities of the Company to adjust the exercise, conversion, exchange or reset price under such securities.

3.3Registration Rights. Except as set forth in Schedule 2-3.3 to the Disclosure Schedule and in the Investors’ Rights Agreement, the Company has not granted or agreed to grant to any Person any right (including shelf, “piggy-back” and demand registration rights) to have any capital stock or other securities of the Company registered with the SEC or any other government authority.

3.4Authorization. All corporate action on the part of the Company, its officers and its directors necessary for the authorization, execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the transactions contemplated herein and therein, has been taken. When executed and delivered by the Company, each of this Agreement and the Transaction Documents shall constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally and by general equitable principles. The Company has all requisite corporate power and authority to enter into this Agreement and the Transaction Documents and to carry out and perform its obligations under their respective terms.

3.5Valid Issuance of the Shares. The Shares, the Conversion Shares, the Warrants and the Warrant Shares have been duly authorized, and the Shares, the Conversion Shares and the Warrant Shares, upon issuance pursuant to the terms hereof, of the Series B Preferred Stock and of the Warrants, respectively, will be validly issued, fully paid and nonassessable and not subject to any encumbrances, preemptive rights or any other similar contractual rights of the stockholders of the Company or any other Person (other than pursuant to the Transaction Documents). Assuming the accuracy of the representations of the Purchasers in Section 4 hereof, and subject to the filings described in Section 3.8 hereof, the Shares, Conversion Shares, Warrants, and Warrant Shares will be issued in compliance with all applicable federal and state securities laws. The Company has reserved from its duly authorized capital stock the number of shares of Common Stock issuable upon conversion in full of the Shares and exercise in full of the Warrants.

3.6SEC Documents. The Company has furnished to the Purchasers true and complete copies of the Company’s Annual Report on Form 10-KSB for the year ended December 31, 2005, the Company’s quarterly Reports on Form 10-QSB for the quarterly periods ended March 31, 2006, June 30, 2006, and September 30, 2006 (the “SEC Documents”). As of their respective filing dates, each of the SEC Documents complied in all material respects with the requirements of the Exchange Act, and none of the SEC Documents contained any untrue statement of a material fact or omitted to state material fact required to be stated therein or necessary in order to make the statement made therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Documents comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto in effect at the time of filing. All material agreements to which the Company is a party or to which the property or assets of the Company are subject are included as part of or specifically identified in the SEC Documents to the extent required by the rules and regulations of the SEC as in effect at the time of filing. The Company has prepared and filed, on a timely basis, with the SEC all filings and reports required by the Securities Act and the Exchange Act.

3.7Financial Statements. Except as set forth in Schedule 2-3.7 to the Disclosure Schedule, the financial statements and supporting schedules included in the SEC Documents and in any of the Company’s registration statements filed with the SEC or other of the Company’s reports filed with the SEC pursuant to Section 13 of the Exchange Act (collectively, the “Financial Statements”), are complete and correct in all material respects and present fairly the consolidated financial position of the Company and its Subsidiaries as of the dates specified and the consolidated results of their operations and cash flows for the periods specified, in each case, in conformity with generally accepted accounting principles and applied on a consistent basis during the periods involved, except as indicated therein or in the notes thereto.

3.8Consents. Except for (a) the filing and effectiveness of any registration statement required to be filed by the Company under the Securities Act pursuant to the terms of the Investors’ Rights Agreement and (b) a Form D filing and any required state “blue sky” law filings in connection with the transactions contemplated hereunder or under the Transaction Documents, all consents, approvals, orders and authorizations required on the part of the Company in connection with the execution or delivery of, or the performance of the obligations under, this Agreement and the Transaction Documents, and the consummation of the transactions contemplated herein and therein, have been obtained and will be effective as of the date hereof. Except as set forth in Schedule 2-3.8 to the Disclosure Schedule, the execution and delivery by the Company of this Agreement and the Transaction Documents, the consummation of the transactions contemplated herein and therein, and the issuance of the Shares, the Conversion Shares, the Warrants and the Warrant Shares, do not require the consent or approval of the stockholders of, or any lender to, the Company, or any other Person.

3.9No Conflict; Compliance with Laws.

(a)The execution, delivery and performance by the Company of this Agreement and the Transaction Documents, and the consummation of the transactions contemplated hereby and thereby, including the issuance of the Shares, the Conversion Shares, the Warrants and the Warrant Shares, do not and will not (i) conflict with or violate any provision of the Certificate of Incorporation (or other charter documents) or By-laws of the Company or any of the Subsidiaries, (ii) breach, conflict with or result in any violation of or default (or an event that with notice or lapse of time or both would become a default) under, or give rise to a right of termination, amendment, acceleration or cancellation (with or without notice or lapse of time, or both) of any obligation, contract, commitment, lease, agreement, mortgage, note, bond, indenture or other instrument or obligation to which the Company or any of the Subsidiaries is a party or by which they or any of their properties or assets are bound, except such as does not constitute a Material Adverse Effect, or (iii) result in a violation of any statute, law, rule, regulation, order, ordinance or restriction applicable to the Company, the Subsidiaries or any of their properties or assets, or any judgment, writ, injunction or decree of any court, judicial or quasi-judicial tribunal applicable to the Company, the Subsidiaries or any of their properties or assets, except such as does not constitute a Material Adverse Effect.

(b)None of the Company and the Subsidiaries (i) is in default under or in violation of (and no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any of the Subsidiaries), nor has the Company or any of the Subsidiaries received written notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties or assets is bound (whether or not such default or violation has been waived) or (ii) is in violation of any statute, rule or regulation of any governmental authority, including, without limitation, all foreign, federal, state and local laws relating to taxes, environmental protection, occupational health and safety, product quality and safety, communications and employment and labor matters, except in each case such as does not constitute a Material Adverse Effect.

3.10Brokers or Finders. Neither the Company nor any of the Subsidiaries has dealt with any broker or finder in connection with the transactions contemplated by this Agreement or the Transaction Documents, and except as set forth in Schedule 2-3.10 to the Disclosure Schedule, none of the Company and the Subsidiaries has incurred, or shall incur, directly or indirectly, any liability for any brokerage or finders’ fees or agents’ commissions or any similar charges in connection with this Agreement or the Transaction Documents, or any transaction contemplated hereby or thereby.

3.11Absence of Litigation. Except as set forth in Schedule 2-3.11 to the Disclosure Schedule, there are no pending or, to the Company’s knowledge, threatened actions, suits, claims, proceedings or investigations against or involving the Company or any of the Subsidiaries, which if adversely decided, would cause a Material Adverse Effect.

3.12No Undisclosed Liabilities; Indebtedness. Except as set forth in Schedule 2-3.12, since the Financial Statement Date, the Company and the Subsidiaries have incurred no liabilities or obligations, whether known or unknown, asserted or unasserted, fixed or contingent, accrued or unaccrued, matured or unmatured, liquidated or unliquidated, or otherwise, other than liabilities and obligations that arose in the ordinary course of business and do not constitute a Material Adverse Effect. Except for indebtedness reflected in the Company’s Financial Statements and as set forth in Schedule 2-3.12 to the Disclosure Schedule, the Company has no indebtedness outstanding, fixed or contingent, as of the date hereof. The Company is not in default with respect to any outstanding indebtedness or any instrument relating thereto.

3.13Contracts. Except as set forth in Schedule 2-3.13, none of the Company and the Subsidiaries are a party to any written or oral executory contract or commitment not made in the ordinary course of business and, whether or not made in the ordinary course of business, none of the Company and the Subsidiaries are a party to any written or oral executory (i) contract or commitment with any labor union, (ii) contract or commitment for the future purchase of fixed assets, materials, supplies, or equipment involving an amount in excess of $25,000, (iii) contract of commitment for the employment of any executive officer or any contract with any other individual for employment, consulting or other services involving an amount in excess of $75,000 per year, (iv) bonus, pension, profit-sharing, retirement, stock purchase, stock option, or extraordinary hospitalization, medical insurance or similar plan, contract or understanding in effect with respect to employees or any of them or the employees of others, (v) agreements, indentures or commitments relating to the borrowing of money or to the mortgaging, pledging or otherwise placing of a lien on any assets of the Company or a Subsidiary, (vi) guaranty of any obligation for borrowed money or otherwise, (vii) lease or agreement under which the Company or a Subsidiary is the lessee of any material property, real or personal, or is the lessor of or permits any third party to hold or operate, any material property, real or personal, owned or controlled by the Company or a Subsidiary, (viii) agreement or other commitment for capital expenditures in excess of $25,000 in the aggregate, (ix) contract or agreement under which the Company or a Subsidiary is obligated to pay any broker’s fees, finder’s fees or any such similar fees to any third party, (x) contract, agreement or commitment under which the Company or a Subsidiary has issued, or may become obligated to issue, any shares of capital stock of the Company or a Subsidiary, or any warrants, options, convertible securities or other commitments pursuant to which the Company or a Subsidiary is or may become obligated to issue any shares of its capital stock, or (xi) any other contract, agreement, arrangement or understanding which is material to the business of the Company and the Subsidiaries, taken as a whole (collectively (i) through (xi), “Material Contracts”). The Company has furnished to counsel for the Purchasers true and correct copies of the Material Contracts. All Material Contracts are legal, valid, binding and in full force and effect and are enforceable by the Company and the relevant Subsidiaries in accordance with their respective terms, except as such may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally and by general equitable principles.

3.14Title to Assets. Each of the Company and the Subsidiaries has good and marketable title to all real and personal property owned by it that is material to the business of the Company and the Subsidiaries, in each case, free and clear of all liens and encumbrances, except those, if any, incurred in the ordinary course of business consistent with past practice.

3.15Labor Relations. No labor or employment dispute exists or, to the knowledge of the Company, is imminent or threatened, with respect to any of the employees or consultants of the Company or a Subsidiary that constitutes or will constitute a Material Adverse Effect.

3.16Intellectual Property.

(a) The Company or a Subsidiary is the sole and exclusive owner of, or has the exclusive right to use, all Intellectual Property used or contemplated for use in the conduct of the Company’s business, including without limitation, the Intellectual Property identified in Schedule 2-3.16(a)(1). All Intellectual Property identified in Schedule 2-3.16(a)(1) was conceived, developed, reduced to practice or otherwise made by or for the Company or a Subsidiary by the current or former employees, consultants or independent contractors of the Company or a Subsidiary, or its predecessors-in-interest (each of whom has validly assigned or is obligated to assign all of his or her right, title and interest therein in writing to the Company or a Subsidiary) or was purchased and is owned or licensed by the Company or a Subsidiary, or its predecessors-in-interest, free and clear of claims and rights of any other Person. Except as set forth in Schedule 2-3.16(a)(2) to the Disclosure Schedule, there are no outstanding options, licenses, agreements, claims, encumbrances or shared ownership of interests of any kind relating to any Intellectual Property owned, licensed, conceived, developed, reduced to practice or otherwise made by or for the Company or its Subsidiaries, including without limitation the Intellectual Property identified in Schedule 2-3.16(a)(1). Each of the Company and the Subsidiaries has taken all commercially reasonable steps to establish and preserve its ownership, and all rights in, any Intellectual Property owned, licensed, conceived, developed, reduced to practice or otherwise made by or for the Company or its Subsidiaries, including without limitation the Intellectual Property listed in Schedule 2-3.16(a)(1). All necessary registration, maintenance and renewal fees for the Intellectual Property listed in Schedule 2-3.16(a)(1) are currently satisfied. All assignments, security agreements, certifications or other relevant documents and/or agreements that may affect any rights or interests of the Intellectual Property identified in Schedule 2-3.16(a)(1) have been properly filed with the relevant patent, copyright, trademark or other authority in the United States or relevant foreign jurisdiction.

(b)To the Company’s knowledge, there have been no claims made against the Company or any of the Subsidiaries asserting the invalidity, abuse, misuse, or unenforceability of any of the Company’s Intellectual Property or interference of the Company’s Intellectual Property with the rights of others and, to the Company’s knowledge, there are no reasonable grounds for any such claims. To the Company’s knowledge, no Person affiliated with the Company or the Subsidiaries has wrongfully acquired, exploited, employed, disclosed, converted, misappropriated or used any trade secrets or any confidential information or documentation proprietary to any former employer or any other person, and no person affiliated with the Company or the Subsidiaries has violated any confidential relationship which such person may have had with any third party. To the Company’s knowledge, there have been no claims made against the Company or its Subsidiaries, or against any activity, product, service or offering of the Company or its Subsidiaries, for any infringement, misuse, misappropriation, conversion or violation of any Intellectual Property rights of any third party, and, to the Company’s knowledge, there are no reasonable grounds for any such claims. To the Company’s knowledge, none of its planned activities, products, services or offerings will infringe, misuse, misappropriate, convert or in any way violate any Intellectual Property rights of any third party, and, to the Company’s knowledge, there would be no reasonable grounds for any such claim.

(c)Except as set forth in Schedule 2-3.16(c), to the Company’s knowledge, no third party has infringed, misused, misappropriated, converted or violated any of the Company’s Intellectual Property.

(d)Except as set forth in Schedule 2-3.16(d) to the Disclosure Schedule, no royalties, honorariums or fees are or will be payable by the Company or any of the Subsidiaries to other Persons by reason of the ownership or use by the Company (or by reason of any other relationship with other Persons, contractual or otherwise) of the Intellectual Property or by reason of the conduct of its normal business activities or marketing or sale of any of its existing or planned products, services or activities.

3.17Subsidiaries; Joint Ventures. Except for the Subsidiaries listed in Schedule 2-3.17 to the Disclosure Schedule, the Company has no subsidiaries and (i) does not hold equity interests, directly or indirectly, in any other Person or have any obligations to acquire equity interests in any other Person, and (ii) is not a participant in any joint venture, partnership, or similar arrangement material to the business of the Company and the Subsidiaries.

3.18Taxes. The Company and each of the Subsidiaries has filed (or has had filed on its behalf), will timely file or will cause to be timely filed, or has timely filed for an extension of the time to file, all material Tax Returns (as defined below) required by applicable law to be filed by it or them prior to or as of the date hereof, and such Tax Returns are, or will be at the time of filing, true, correct and complete in all material respects. Each of the Company and the Subsidiaries has paid (or has had paid on its behalf) or, where payment is not yet due, has established (or has had established on its behalf and for its sole benefit and recourse) or will establish or cause to be established in accordance with United States generally accepted accounting principles on or before the date hereof an adequate accrual for the payment of, all material Taxes (as defined below) due with respect to any period ending prior to or as of the date hereof. “Taxes” shall mean any and all taxes, charges, fees, levies or other assessments, including income, gross receipts, excise, real or personal property, sales, withholding, social security, retirement, unemployment, occupation, use, goods and services, license, value added, capital, net worth, payroll, profits, franchise, transfer and recording taxes, fees and charges, and any other taxes, assessment or similar charges imposed by the Internal Revenue Service or any taxing authority (whether state, county, local or foreign) (each, a “Taxing Authority”), including any interest, fines, penalties or additional amounts attributable to or imposed upon any such taxes or other assessments. “Tax Return” shall mean any report, return, document, declaration or other information or filing required to be supplied to any Taxing Authority, including information returns, any documents with respect to accompanying payments of estimated Taxes, or with respect to or accompanying requests for extensions of time in which to file any such return, report, document, declaration or other information. There are no claims or assessments pending against the Company or any of the Subsidiaries for any material alleged deficiency in any Tax, and neither the Company nor any of the Subsidiaries has been notified in writing of any material proposed Tax claims or assessments against the Company or any of the Subsidiaries. No Tax Return of the Company or any of the Subsidiaries is or has been the subject of an examination by a Taxing Authority. Each of the Company and the Subsidiaries has withheld from each payment made to any of its past or present employees, officers and directors, and any other person, the amount of all material Taxes and other deductions required to be withheld therefrom and paid the same to the proper Taxing Authority within the time required by law.

3.19Pensions and Benefits.

(a)None of (i) any current or former directors, officers, employees or consultants of the Company has any present or future right to benefits and which are contributed to, sponsored by or maintained by the Company or any of the Subsidiaries, or (ii) the Company or any of the Subsidiaries has any present or future liability under any “employee benefit plan” within the meaning of Section 3(3) of the United States Employee Retirement Income Security Act of 1974 (“ERISA”), including without limitation, multiemployer plans within the meaning of Section 3(37) of ERISA, and all retirement, profit sharing, stock option, stock bonus, stock purchase, severance, fringe benefit, deferred compensation, and other employee benefit programs, plans, or arrangements, whether or not subject to ERISA.

(b)No stock options, stock appreciation rights or other equity-based awards issued or granted by the Company are subject to the requirements of Section 409A of the Code.   Each “nonqualified deferred compensation plan” (as such term is defined under Section 409A(d)(1) of the Code and the guidance thereunder) under which the Company  makes, is obligated to make or promises to make, payments (each, a “409A Plan”) complies in all material respects, in both form and operation, with the requirements of Section 409A of the Code and the guidance thereunder.  No payment to be made under any 409A Plan is, or to the knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code.

3.20Private Placement; Communications with Purchasers. Neither the Company nor any person acting on the Company’s behalf has sold or offered to sell or solicited any offer to buy the Shares, Warrants, Warrant Shares or Conversion Shares by means of any form of general solicitation or advertising. None of the Company, its Affiliates and any person acting on the Company’s behalf has, directly or indirectly, at any time within the past six (6) months, made any offer or sale of any security or solicitation of any offer to buy any security under circumstances that would (i) eliminate the availability of the exemption from registration under Regulation D, or other exemption, under the Securities Act in connection with the offer, sale or issuance of the Shares, Conversion Shares, Warrants or Warrant Shares as contemplated hereby or by the terms of the Transaction Documents or (ii) cause the offering or issuance of the Shares, Conversion Shares, Warrants or Warrant Shares pursuant to this Agreement or any of the Transaction Documents to be integrated with prior offerings by the Company for purposes of any applicable law, regulation or stockholder approval provisions in a manner that would eliminate the availability of the exemption described in the immediately preceding clause (i) or require any stockholder approval, except as has been obtained pursuant to the Exchange Act.

3.21Regulatory Matters. None of the Company and the Subsidiaries is, or is an Affiliate of, or following the receipt of the proceeds of this offering will be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. None of the Company and the Subsidiaries is a United States real property holding corporation within the meaning of the Foreign Investment in Real Property Tax Act of 1980.

3.22Material Changes. Except as set forth in Schedule 2-3.22 to the Disclosure Schedule, since the Financial Statement Date, the Company and the Subsidiaries, taken as a whole, have conducted their business only in the ordinary course, consistent with past practice, and since such date there has not occurred a Material Adverse Effect. Since the Financial Statement Date and except as disclosed in Schedule 2-3.22 or pursuant hereto or any Transaction Document, there has not occurred: (i) any amendment or change in the charter documents or By-laws of the Company or the Subsidiaries; (ii) any (A) incurrence, assumption or guarantee by the Company or the Subsidiaries of any debt for borrowed money other than (x) equipment leases made in the ordinary course of business, consistent with past practice and (y) any such incurrence, assumption or guarantee with respect to an amount of $25,000 or more; (B) issuance or sale of any securities convertible into or exchangeable for securities of the Company or any Subsidiary other than to directors, employees and consultants pursuant to existing equity compensation or stock purchase plans of the Company and its Subsidiaries; (C) issuance or sale of options or other rights to acquire from the Company or any of the Subsidiaries, directly or indirectly, securities of the Company or any Subsidiary or any securities convertible into or exchangeable for any such securities, other than options issued to directors, employees and consultants in the ordinary course of business, consistent with past practice; (D) issuance or sale of any stock, bond or other corporate security other than to directors, employees and consultants pursuant to existing equity compensation or stock purchase plans of the Company and its Subsidiaries; (E) declaration or making of any payment or distribution to stockholders or purchase or redemption of any share of its capital stock or other security other than to or from directors, officers and employees of the Company or the Subsidiaries as compensation for or in connection with services rendered to the Company or the Subsidiaries (as applicable) or for reimbursement of expenses incurred on behalf of the Company or the Subsidiaries (as applicable); (F) sale, assignment or transfer of any of its intangible assets except in the ordinary course of business, consistent with past practice, or cancellation of any debt or claim except in the ordinary course of business, consistent with past practice; (G) waiver of any right of substantial value whether or not in the ordinary course of business; (H) material change in officer compensation, except in the ordinary course of business and consistent with past practice; or (I) other commitment (contingent or otherwise) to do any of the foregoing; (iii) any creation, sufferance or assumption by the Company or any of the Subsidiaries of any lien on any asset or any making of any loan, advance or capital contribution to or investment in any Person, in an aggregate amount which exceeds $25,000 outstanding at any time; (iv) any entry into, amendment of, relinquishment, termination or non-renewal by the Company or the Subsidiaries of any Material Contract, other than in the ordinary course of business, consistent with past practice; or (v) any transfer or grant of a right with respect to the Intellectual Property owned or licensed by the Company or the Subsidiaries, except as among the Company and the Subsidiaries.

3.23Regulatory Permits. The Company and the Subsidiaries possess all certificates, approvals, authorizations, licenses, permits and other rights issued by the appropriate federal, state, local or foreign regulatory authorities necessary to conduct their businesses, now conducted or proposed to be conducted, except where the failure to possess such permits does not constitute a Material Adverse Effect (the “Material Permits”), and the Company has not received any written notice of proceedings relating to, or any basis for the denial, revocation or modification of any Material Permits. All such Material Permits are in full force and effect and are not the subject of any pending or, to the knowledge of the Company, threatened challenge or other attack by appeal or direct proceeding or otherwise.

3.24Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary for the business in which the Company and the Subsidiaries are engaged. The Company has no reason to believe that it will not be able to renew existing insurance coverage for itself and the Subsidiaries as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary or appropriate to continue business.

3.25Disclosure. All disclosure provided to the Purchasers regarding the Company and the Subsidiaries, their business and the transactions contemplated hereby, including the Schedules to this Agreement furnished by or on behalf of the Company, are true and correct in all material respects. The Company acknowledges and agrees that no Purchaser makes or has made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 4 hereof.

3.26Investigation. It shall be no defense to an action for breach of this Agreement that the Purchasers or their agents have (or have not) made investigations into the affairs of the Company and the Subsidiaries or that the Company did not or could not have known of the misrepresentation or breach of warranty (unless expressly qualified by knowledge). Damages for breach of a representation or warranty or other provision of this Agreement shall not be diminished by any alleged tax savings as a result thereof.

3.27Affiliate Transactions.

(a)Other than (i) standard employee benefits generally made available to all employees, (ii) standard director and officer indemnification agreements approved by the Board, (iii) agreements contemplated in Section 3.28 below, and (iv) as set forth in Schedule 2-3.27(a) to the Disclosure Schedule, there are no agreements, understandings or proposed transactions between the Company and any of its officers, directors, consultants, employees, shareholders or Affiliates.

(b)Except as set forth in Schedule 2-3.27(b) to the Disclosure Schedule, the Company is not indebted, directly or indirectly, for deferred salary or other compensation, money borrowed or otherwise, to any of the directors, officers, employees or shareholders of the Company or a Subsidiary or to their respective spouses or children or to any Affiliate of any of the foregoing, other than in connection with expenses or advances of expenses incurred in the ordinary course of business or employee relocation expenses and for other customary employee benefits made generally available to all employees. Except as set forth in Schedule 2-3.27(b) to the Disclosure Schedule, none of the Company’s directors, officers, employees, shareholders or any members of their immediate families, or any Affiliate of the foregoing (i) is, directly or indirectly, indebted to the Company or a Subsidiary, (ii) to the Company’s knowledge, has any direct or indirect ownership interest in any firm or corporation with which the Company or a Subsidiary has any business relationship or dealings, or any firm or corporation which competes with the Company or a Subsidiary (except ownership interests not exceeding two percent (2%) of the outstanding capital stock of publicly traded companies), or (iii) has any material commercial, industrial, banking, consulting, legal, accounting, charitable or familial relationship with any of the Company’s customers, suppliers, service providers, joint venture partners, licensees and competitors.

3.28Confidential Information and Invention Assignment Agreements. Except as set forth in Schedule 2-3.28 to the Disclosure Schedule, each current and former director, officer, employee, and, to the extent reasonably deemed necessary to protect the Company’s interests, consultant of the Company or a Subsidiary has executed an agreement with the Company or a Subsidiary regarding confidentiality and proprietary information substantially in the form or forms delivered to the counsel for the Purchasers (the “Confidential Information Agreements”). No current or former director, officer, employee, or consultant has excluded works or inventions from his or her assignment of inventions pursuant to such employee’s or consultant’s Confidential Information Agreement. The Company is not aware that any director, officer, employee, or consultant is in violation thereof. All employees of the Company and its Subsidiaries actively and directly involved in any research and development activities are required to and have executed employment agreements that obligate them to assign to the Company and its Subsidiaries all rights in any Intellectual Property conceived, developed, reduced to practice or in any way made in the course of their employment or work and to assist and fully cooperate in all activities, and execute any documents, necessary to secure, preserve and perfect the Company’s rights and interests in any such Intellectual Property. All employees, and, to the extent reasonably deemed necessary to protect the Company’s interests, consultants and advisors, are and have been required to execute a confidentiality agreement upon the commencement of an employment or consulting relationship, which agreement provides that all trade secrets and inventions conceived by the individual and all confidential information developed or made known to the individual during the term of his or her relationship with the Company or its subsidiaries shall be the exclusive property of the Company or its Subsidiaries and shall be kept confidential and not disclosed to third parties, except in specified circumstances.

3.29Nondisclosure. Except as set forth in Schedule 2-3.29 or pursuant to a binding non-disclosure agreement, the Company has not disclosed to any third party any Company trade secret or other confidential or proprietary information.

3.30Collaboration. Except as set forth in Schedule 2-3.30, the Company has not funded any research or development efforts of any third party or engaged in any joint research or development efforts with any third party.

3.31Government Funding. Except for the agreements set forth in Schedule 2-3.31, the Company is not a party to any agreement that provided or provides government funding for any Company research, development or marketing efforts, joint or otherwise. The Company has complied with all provisions of the agreements set forth in Schedule 2-3.31 necessary to preserve its rights in any of the Company’s Intellectual Property. Except for the agreements set forth in Schedule 2-3.31, the Company is not a party to any agreement with any government that (a) provides for any governmental ownership interest, contingent or otherwise, in any Company Intellectual Property, (b) that imposes on the Company any requirement to license, contingent or otherwise, any of its Intellectual Property, or (c) that imposes any governmental requirement, restriction or encumbrance, contingent or otherwise, on the use of the Company’s Intellectual Property or the conduct of the business of the Company.

4.Representations and Warranties of the Purchasers. Each Purchaser represents and warrants, severally (as to itself) and not jointly, to the Company as follows:

4.1Authorization. All action on the part of such Purchaser and, if applicable, its officers, directors, managers, members, shareholders and/or partners necessary for the authorization, execution, delivery and performance of this Agreement and the Investors’ Rights Agreement, and the consummation of the transactions contemplated herein and therein, has been taken. When executed and delivered, each of this Agreement and the Investors’ Rights Agreement will constitute the legal, valid and binding obligation of such Purchaser, enforceable against such Purchaser in accordance with its terms, except as such may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally and by general equitable principles. Such Purchaser has all requisite power and authority to enter into each of this Agreement and the Investors’ Rights Agreement, and to carry out and perform its obligations under the terms hereof and thereof.

4.2Purchase Entirely for Own Account. Such Purchaser is acquiring the Shares and the Warrants for its own account for investment and not for resale or with a view to distribution thereof in violation of the Securities Act.

4.3Investor Status; Etc. Such Purchaser certifies and represents to the Company that it is an institutional “Accredited Investor” as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act and was not organized for the purpose of acquiring any of the Shares, Conversion Shares, Warrants or Warrant Shares. Such Purchaser’s financial condition is such that it is able to bear the risk of holding the Shares and the Warrants, and any Conversion Shares and Warrant Shares, for an indefinite period of time and the risk of loss of its entire investment. Such Purchaser has sufficient knowledge and experience in making investments such as contemplated under this Agreement so as to be able to evaluate the risks and merits of its investment in the Company.

4.4Securities Not Registered. Such Purchaser understands that the Shares, Conversion Shares, Warrants and Warrant Shares have not been registered under the Securities Act, by reason of their issuance by the Company in transactions exempt from the registration requirements of the Securities Act, and that the Shares, Conversion Shares, Warrants and Warrant Shares must continue to be held by such Purchaser unless a subsequent disposition thereof is registered under the Securities Act, including pursuant to a registration statement under the Investors’ Rights Agreement, or is exempt from such registration. Such Purchaser understands that the exemptions from registration afforded by Rule 144 promulgated under the Securities Act (the provisions of which are known to it) depend on the satisfaction of various conditions, and that, if applicable, Rule 144 may afford the basis for sales only in limited amounts.

4.5No Conflict. The execution and delivery of this Agreement and the Investors’ Rights Agreement by such Purchaser, and the consummation of the transactions contemplated hereby and thereby, do not and will not conflict with or result in any violation of (i) the organizational documents of such Purchaser or (ii) any judgment, order, statute, law, ordinance, rule or regulations, applicable to such Purchaser.

4.6Brokers. Such Purchaser has not retained, utilized or been represented by any broker or finder in connection with the transactions contemplated by this Agreement or the Transaction Documents, and such Purchaser has not incurred, and shall not incur, directly or indirectly, any liability for any brokerage or finders’ fees or agents’ commissions or any similar charges in connection with this Agreement or the Transaction Documents, or any transaction contemplated hereby or thereby.

4.7Consents. All consents, approvals, orders and authorizations required on the part of such Purchaser in connection with such Purchaser’s execution, delivery or performance of this Agreement and the Investors’ Rights Agreement and the consummation of the transactions contemplated herein and therein have been obtained and are effective as of the date hereof.

4.8Regulatory Permits. Such Purchaser possess all certificates, approvals, authorizations and permits issued by the appropriate federal, state, local or foreign regulatory authorities necessary for Purchaser to enter into this Agreement and the Investors’ Rights Agreement and the consummate the transactions contemplated herein and therein.

4.9Disclosure of Information. Such Purchaser believes it has received adequate information for it to decide whether or not to purchase the Shares and the Warrants. Such Purchaser further represents that it has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Shares and the Warrants and the business, properties, prospects and financial condition of the Company. The foregoing representation is made by such Purchaser on the basis of and in reliance upon the representations and warranties of the Company in Section 3 of this Agreement being true and correct, and shall not operate to limit or otherwise modify such representations and warranties or the right of such Purchaser to rely thereon. Such Purchaser’s decision to invest is based exclusively on the Company’s representations in this Agreement and the results of such Purchaser’s independent investigation. Such Purchaser acknowledges that the Company and its agents have not provided any legal or tax advice.

5.Conditions Precedent.

5.1.Conditions to the Several Obligations of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares and Warrants to be purchased by it is subject to the satisfaction (or waiver by such Purchaser) of the following conditions precedent:

(a)The representations and warranties of the Company contained herein shall be true and correct on and as of the date hereof, the Closing Date. The Company shall have performed or complied with all obligations and conditions herein required to be performed or complied with by the Company on or prior to the Closing.

(b)No proceeding challenging, or seeking to prohibit, alter, prevent or materially delay, this Agreement or the Transaction Documents, or the transactions contemplated hereby or thereby, shall have been instituted before any court, arbitrator or governmental body, agency or official or shall be pending against or involving the Company.

(c)This Agreement and the Transaction Documents, and the transactions contemplated hereby and thereby, shall not be prohibited by any law, rule, governmental order or regulation. All necessary consents, approvals, licenses, permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of or with any other Person with respect to any of the transactions contemplated hereby and thereby shall have been duly obtained or made and shall be in full force and effect.

(d)All instruments and corporate proceedings of the Company in connection with the transactions contemplated by this Agreement and the Transaction Documents shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which any Purchaser may have reasonably requested in connection with such transactions.

(e)Such Purchaser shall have received from Jones, Walker, Waechter, Poitevent, Carrère & Denègre, L.L.P., outside counsel to the Company, an opinion addressed to such Purchaser, dated the Closing Date and substantially in the form of Exhibit E hereto.

(f)The Investors’ Rights Agreement shall have been executed and delivered to such Purchaser by the Company.

(g)The Company shall have adopted and filed with the Secretary of State of the State of Delaware in accordance with Delaware General Corporation Law on or before the Closing the Certificate of Designations, which shall continue in full force and effect on and as of the Closing Date.

(h)Each of the Warrant Amendments shall have been executed and delivered to such Purchaser by the Company.

(i)Such Purchaser shall have received evidence satisfactory to it that the lenders under the Bridge Loans have waived their right to convert such Bridge Loans into Common Stock or any other capital stock of the Company.

(j)The Company shall have delivered, in form and substance satisfactory to such Purchaser, a certificate dated as of the Closing Date and signed by the secretary or another appropriate executive officer of the Company, certifying (i) that attached copies of the Certificate of Incorporation (including the Certificate of Designations), By-laws and resolutions of the Board approving this Agreement, the Transaction Documents and the transactions contemplated hereby and thereby, are all true, complete and correct and remain in full force and effect as of the date hereof, and (ii) as to the incumbency and specimen signature of each officer of the Company executing this Agreement, the Transaction Documents and any other document delivered in connection herewith on behalf of the Company.

(k)The Company shall deliver to such Purchaser a certificate in form and substance satisfactory to such Purchaser, dated the Closing Date and signed by the Company’s President, certifying that (i) the representations and warranties of the Company contained in Section 3 hereof are true and correct in all respects on the Closing Date and (ii) the Company has performed and complied with all of the agreements and conditions set forth or contemplated herein that are required to be performed or complied with by the Company on or before the Closing.

5.2.Conditions to the Obligation of the Company to Consummate the Closing. The obligation of the Company to consummate the Closing and to issue and sell the Shares to each Purchaser at the Closing is subject to the satisfaction (or waiver by the Company) of the following conditions precedent:

(a)The representations and warranties of the Purchasers contained herein shall be true and correct in all respects on and as of the date hereof and the Closing Date.

(b)The Investors’ Rights Agreement shall have been executed and delivered by the Purchasers.

(c)The Purchasers shall have performed all obligations and conditions herein required to be performed or complied with by the Purchasers on or prior to the Closing.

(d)No proceeding challenging, or seeking to prohibit, alter, prevent or materially delay, this Agreement or the Transaction Documents, or the transactions contemplated hereby or thereby, shall have been instituted before any court, arbitrator or governmental body, agency or official or shall be pending against or involving such Purchaser.

(e)This Agreement and the Transaction Documents, and the transactions contemplated hereby and thereby, shall not be prohibited by any law, rule, governmental order or regulation. All necessary consents, approvals, licenses, permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of or with any other Person with respect to any of the transactions contemplated hereby and thereby shall have been duly obtained or made and shall be in full force and effect.

6. Certain Covenants and Agreements.

6.1.Transfer of Securities. Each Purchaser agrees, severally (as to itself only) and not jointly, that it shall not sell, assign, pledge, transfer or otherwise dispose of or encumber any of the Shares, Conversion Shares, Warrants or Warrant Shares, except (i) pursuant to an effective registration statement under the Securities Act, including such as required under the Investors’ Rights Agreement, or (ii) pursuant to an available exemption from registration under the Securities Act (including sales permitted pursuant to Rule 144) and applicable state securities laws. Any transfer or purported transfer of the Shares in violation of this Section 6.1 shall be void. The Company shall not be required to register any transfer of the Shares in violation of this Section 6.1. The Company may, and may instruct any transfer agent for the Company, to place such stop transfer orders as may be required on the transfer books of the Company in order to ensure compliance with the provisions of this Section 6.1.

6.2.Legends.

(a)To the extent applicable, each certificate or other document evidencing the Shares, the Conversion Shares and the Warrant Shares shall be endorsed with the legend set forth below and any other legends that may be required by applicable state “blue sky” laws, and each Purchaser covenants that, except to the extent such restrictions are waived by the Company, it shall not transfer the shares represented by any such certificate without complying with the restrictions on transfer described in this Agreement and the legends endorsed on such certificate:

THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED OR SOLD IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, REGISTRATION UNDER SAID ACT.

(b)The legend set forth in Section 6.2(a) shall be removed from the certificates evidencing the Shares, the Conversion Shares and the Warrant Shares, (i) in connection with any sale of such Shares, Conversion Shares or Warrant Shares pursuant to Rule 144 or any effective registration statement, including such as required under the Investors’ Rights Agreement, or (ii) if such Shares, Conversion Shares or Warrant Shares are eligible for sale under Rule 144(k) (and the holder of such Shares, Conversion Shares or Warrant Shares has submitted a written request for removal of the legend indicating that the holder is in compliance with the applicable provisions of Rule 144(k)) or (iii) if such legend is not required under applicable requirements of the Securities Act (including interpretations and pronouncements issued by the Staff of the SEC) (and the holder of such Shares, Conversion Shares or Warrant Shares has submitted a written request for removal of the legend indicating that such legend is not required under applicable requirements of the Securities Act (including such interpretations and pronouncements)) and, if reasonably requested by the Company, the Company has received from Purchaser’s counsel an opinion, in such form as is reasonably satisfactory to Company’s counsel, that such legend is not so required. The Company shall cause its counsel to issue a legal opinion to the Company’s transfer agent, if required, promptly upon the occurrence of any of the events in clauses (i), (ii) or (iii) above to effect the removal of the legend on certificates evidencing the Shares, the Conversion Shares or the Warrant Shares and shall also cause its counsel to issue a “blanket” legal opinion to the Company’s transfer agent, if required, promptly after the effective date of any registration statement, including such as required under the Investors’ Rights Agreement, covering the resale of the Shares, any Conversion Shares or Warrant Shares to allow sales without restriction pursuant to such registration statement. The Company agrees that at such time as such legend is no longer required under this Section 6.2(b), it will, promptly following the delivery by a Purchaser to the Company or the Company’s transfer agent of a certificate representing the Shares, Conversion Shares or Warrant Shares issued with such legend, deliver or cause to be delivered to such Purchaser a certificate representing such Shares, Conversion Shares or Warrant Shares that is free from such legend; provided, however, that in the case of removal of the legend in connection with a sale pursuant to Rule 144, the holder of such Shares, Conversion Shares or Warrant Shares has submitted a written request for removal of the legend indicating that the holder has complied with the applicable provisions of Rule 144, including delivery of a broker’s representation letter and a copy of a Form 144 filed in connection with such sale. The Company may not make any notation on its records or give instructions to any transfer agent of the Company that enlarge the restrictions on transfer set forth in this Section.

6.3Publicity. Except to the extent required by applicable laws, rules, regulations or stock exchange requirements, the Company shall not, without the prior written consent of each of the Purchasers, disclose or publish the name of such Purchaser in any press release, public announcement, website or otherwise. Except to the extent required by applicable laws, rules, regulations or stock exchange requirements, each of the Purchasers and their Affiliates shall not, without the written consent of the Company, make any public announcement or issue any press release with respect to the transactions contemplated by this Agreement. The parties agree that the Company shall issue a press release promptly following (and in no event more than one Business Day after) the Closing and, on or before 9:30 a.m., New York time, on the first trading day following the Closing Date describing the terms of the transactions contemplated by this Agreement and the Transaction Documents, the contents of which press release shall have been approved by the Purchasers, and shall file such press release under cover of a Current Report on Form 8-K, attaching such press release and the material transaction documents (including, without limitation, this Agreement and the Investors’ Rights Agreement) as exhibit to such filing (including all attachments, the “8-K Filing”).

6.4Filing of Information. The Company covenants to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company pursuant to all applicable securities laws, including the Exchange Act. The Company further covenants that it will take such further action as any holder of Shares, Conversion Shares and Warrant Shares may reasonably request to satisfy the provisions of Rule 144 applicable to the issuer of securities relating to transactions for the sale of securities pursuant to Rule 144.

6.5Use of Proceeds. The Company intends that the proceeds from the sale of the Shares shall be used by the Company to (i) repay in full the Bridge Loans, and (ii) fund the Company’s general corporate and working capital requirements. The Company shall repay in full the Bridge Loans within three (3) Business Days of the Closing Date.

6.6Integration. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Shares in a manner that would require the registration under the Securities Act of the sale of the Shares or the issuance of the Warrants pursuant hereto.

6.7Reservation of Common Stock for Issuance; Listing of Shares. The Company agrees to reserve from its duly authorized capital stock the total number of shares of Common Stock issuable upon the conversion in full of the Conversion Shares and the Warrant Shares. The Company agrees that at any time, if and when its shares of Common Stock are listed on a national or international securities exchange or admitted for quotation on any national automated quotation system, it will use reasonable efforts to promptly list and qualify the Conversion Shares and Warrant Shares for trading on such exchange or quotation on such system.

6.8Required Approvals. As promptly as practicable after the date of this Agreement, the Company shall make, or cause to be made, all filings with any governmental or administrative agency or any other Person necessary to consummate the transactions contemplated hereby.

6.9Inspection Rights. Each Purchaser, or any officer, employee, agent or representative thereof, shall have the right to visit and inspect any of the properties of the Company or any of the Subsidiaries, to discuss the affairs, finances, accounts and operations of the Company or any of the Subsidiaries with their respective officers, directors, employees, agents or representatives, and to review and copy such information as is reasonably requested from time to time.

6.10No Commitment for Additional Financing. The Company acknowledges and agrees that no Purchaser has made any representation, undertaking, commitment or agreement to provide or assist the Company in obtaining any financing, investment or other assistance, other than the purchase of the Shares and the Warrants as set forth herein and subject to the conditions set forth herein. In addition, the Company acknowledges and agrees that (i) no statements, whether written or oral, made by any Purchaser or its representatives on or after the date of this Agreement shall create an obligation, commitment or agreement to provide or assist the Company in obtaining any financing or investment, (ii) the Company shall not rely on any such statement by any Purchaser or its representatives and (iii) an obligation, commitment or agreement to provide or assist the Company in obtaining any financing or investment may only be created by a written agreement of such Purchaser, setting forth the terms and conditions of such financing or investment and stating that the parties intend for such writing to be a binding obligation or agreement. Each Purchaser shall have the right, in it sole and absolute discretion, to refuse or decline to participate in any other financing of or investment in the Company, and shall have no obligation to assist or cooperate with the Company in obtaining any financing, investment or other assistance.

6.11CEO Search. The Company shall commence, promptly after the Closing, a search for a new Chief Executive Officer to be appointed as soon as reasonably practicable, with the approval of the Board, including at least one Series B Director (as defined in the Certificate of Designations), if any are on the Board at such time.

6.12Series A Preferred. The Company shall send, not later than three (3) Business Days after the Closing Date, a notice to all holders of record of shares of Series A Preferred Stock relating to the adjustment of the conversion price for the Series A Preferred Stock that complies with Section 5(j) of the Certificate of Designations of the Series A Preferred Stock.

7.Indemnification.

7.1The Company agrees to indemnify, defend and hold harmless each Purchaser and its Affiliates and their respective officers, directors, agents, employees, subsidiaries, partners, members and controlling persons (collectively, the “Purchaser Indemnitees”) to the fullest extent permitted by law from and against any and all claims, losses, liabilities, damages, deficiencies, judgments, assessments, fines, settlements, costs or expenses (including administrative, judicial or regulatory proceedings, interest, penalties, costs of investigation and reasonable fees, disbursements and other charges of counsel) (collectively, “Losses”) based upon, arising out of or otherwise in respect of any breach by the Company of any representation, warranty, covenant or agreement of the Company contained in this Agreement or in the Transaction Documents, or for any Losses claimed by any broker or placement agent retained by the Company in connection with the transactions contemplated hereby or thereby.

7.2As promptly as possible after receipt by a Purchaser Indemnitee under this Section 7 of notice of the threat, assertion or commencement of any claim, action or proceeding, such Purchaser Indemnitee will, if a claim for indemnification in respect thereof is to be made under this Section 7, notify the Company in writing of the commencement thereof and the Company shall have the right to participate in and, to the extent the Company desires, to assume at its expense the defense thereof with counsel mutually satisfactory to the parties; provided, however, that the failure to notify the Company promptly of the threat, assertion or commencement of any such claim, action or proceeding shall not relieve the Company of any liability to the Purchaser Indemnitee under this Section 7 except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have proximately and materially adversely prejudiced the Company.

7.3If any Purchaser Indemnitee shall have reasonably concluded that there may be one or more legal defenses available to such Purchaser Indemnitee which are different from or additional to those available to the Company, or that such claim or litigation involves or could have an effect upon matters beyond the scope of the indemnity agreement provided in this Section 7, the Company shall not have the right to assume the defense of such action on behalf of such Purchaser Indemnitee, and the Company shall reimburse such Purchaser Indemnitee for the fees and expenses of one separate counsel, for all Purchaser Indemnitees, which are reasonably related to the matters covered by the indemnity agreement provided in this Section 7. Subject to the foregoing, a Purchaser Indemnitee shall have the right to employ separate counsel in any such action and to participate in the defense thereof but the fees and expenses of such counsel shall not be at the expense of the Company. The Company shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld. The Company shall not, without the prior written consent of the relevant Purchaser Indemnitee, effect any settlement of any pending proceeding in respect of which such Purchaser Indemnitee is a party, unless such settlement includes an unconditional release of such Purchaser Indemnitee party from all liability on claims that are the subject matter of such proceeding.

7.4.Time Limit for Certain Claims.

(a)The representations and warranties of the Company under Section 3 of this Agreement, regardless of any investigation made by the Purchasers or their independent accounts or legal representatives, or any certificate, document or other instrument delivered in connection herewith, shall survive for eighteen (18) months after the Closing, except for (i) the representations and warranties in Section 3.18 hereof (“Taxes”), which shall survive until the last date liability connected with the Company’s previous tax positions may be asserted by federal or state authorities, and (ii) the representations and warranties in Sections 3.1, 3.4 and 3.5 hereof, which shall survive indefinitely. The Company will not be liable for any Losses hereunder arising out of a breach of representation or warranty unless a written claim for indemnification is given by the relevant Purchaser Indemnitee to the Company on or prior to the expiration of such applicable time limits.

(b)Maximum Amount. The Company shall not be liable hereunder for any Losses incurred by any Purchaser on the value of its Shares and Warrant Shares as a result of a breach of representation or warranty hereunder in excess of purchase price hereunder actually paid by such Purchaser for such Shares and Warrant Shares.

7.5Applicability; Non-Exclusivity. Notwithstanding any term to the contrary in this Section 7, the indemnification and contribution provisions of the Investors’ Rights Agreement shall govern any claim made with respect to registration statements filed pursuant thereto or sales made thereunder. The parties hereby acknowledge and agree that in addition to remedies of the parties hereto in respect of any and all claims relating to any breach or purported breach of any representation, warranty, covenant or agreement that is contained in this Agreement pursuant to the indemnification provisions of this Section 7, all parties shall always retain the right to pursue and obtain injunctive relief in addition to any other rights or remedies hereunder.

8.Miscellaneous Provisions.

8.1Rights Cumulative. Each and all of the various rights, powers and remedies of the parties shall be considered to be cumulative with and in addition to any other rights, powers and remedies which such parties may have at law or in equity in the event of the breach of any of the terms of this Agreement. The exercise or partial exercise of any right, power or remedy shall neither constitute the exclusive election thereof nor the waiver of any other right, power or remedy available to such party.

8.2Pronouns. All pronouns or any variation thereof shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person, persons, entity or entities may require.

8.3Notices.

(a)Any notices, reports or other correspondence (hereinafter collectively referred to as “correspondence”) required or permitted to be given hereunder shall be given in writing and shall be deemed given if sent by certified or registered mail (return receipt requested), overnight courier or telecopy (with confirmation of receipt), or delivered by hand to the party to whom such correspondence is required or permitted to be given hereunder. An electronic communication (“Electronic Notice”) shall be deemed written notice for purposes of this Section 8.3 if sent with return receipt requested to the electronic mail address specified by the receiving party either in this Section 8.3 or on Schedule 1 hereto. Electronic Notice shall be deemed received at the time the party sending Electronic Notice receives verification of receipt by the receiving party.

(b)All correspondence to the Company shall be addressed as follows:

Uni-Pixel, Inc.

8708 Technology Forest Place

Suite 100

The Woodlands, Texas 77381

Attention: James Tassone, President

Facsimile: (281) 825-4599

Email: jtassone@unipixel.com

with copies to:

Jones, Walker, Waechter, Poitevent, Carrère & Denègre, L.L.P.

Four United Plaza

8555 United Plaza Boulevard

Baton Rouge, LA 70809

Attention: Scott D. Chenevert, Esq.

Facsimile: (225) 248-2010

Email: schenevert@joneswalker.com

(c)All correspondence to the Purchasers shall be addressed pursuant to the contact information set forth in Schedule 1 attached hereto.

(d)Any entity may change the address to which correspondence to it is to be addressed by notification as provided for herein.

8.4Captions. The captions and paragraph headings of this Agreement are solely for the convenience of reference and shall not affect its interpretation.

8.5Expenses. Each party shall pay all costs and expenses that it incurs with respect to the negotiation, execution, delivery and performance of this Agreement and the Transaction Documents; provided, however, that the Company shall, at the Closing, reimburse the reasonable fees and expenses of Boies, Schiller & Flexner LLP, counsel to the Purchasers, not to exceed $62,500.

8.6Severability. Should any part or provision of this Agreement be held unenforceable or in conflict with the applicable laws or regulations of any jurisdiction, the invalid or unenforceable part or provisions shall be replaced with a provision which accomplishes, to the extent possible, the original business purpose of such part or provision in a valid and enforceable manner, and the remainder of this Agreement shall remain binding upon the parties hereto.

8.7Governing Law. This Agreement shall be governed by and construed in accordance with the internal and substantive laws of the State of Delaware and without regard to any conflicts of laws concepts which would apply the substantive law of some other jurisdiction. The Company agrees that any action for the breach of this Agreement prosecuted against it in the courts of the State of New York.

8.8Waiver. No waiver or delay in exercising of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or be construed as, a further or continuing waiver of any such term, provision or condition or as a waiver of any other term, provision or condition of this Agreement.

8.9Assignment. The rights and obligations of any party hereto shall inure to the benefit of and shall be binding upon the authorized successors, legal representatives, and permitted assigns of such party. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Purchasers. Subject to the provisions of Section 6 hereof, each Purchaser may assign or transfer any or all of its rights under this Agreement to any Person to which it may sell, assign, transfer or otherwise dispose of any of its Shares, Conversion Shares, Warrants or Warrant Shares; provided, however, that such assignee or transferee agrees in writing to be bound, with respect to the transferred Shares, Conversion Shares, Warrants or Warrant Shares, by the provisions hereof and of the Transaction Documents that apply to such assigning or transferring Purchaser; whereupon such assignee or transferee shall be deemed to be a “Purchaser” for all purposes of this Agreement.

8.10Survival. The respective representations and warranties given by the parties hereto shall survive the Closing Date and the consummation of the transactions contemplated herein as provided in Section 7.4 of this Agreement. The respective covenants and agreements agreed to by a party hereto shall survive the Closing Date and the consummation of the transactions contemplated herein in accordance with their respective terms and conditions.

8.11Entire Agreement. This Agreement, the exhibits and schedules hereto, the Transaction Documents and the other documents delivered pursuant hereto constitutes the entire agreement between the parties hereto respecting the subject matter hereof and supersedes all prior agreements, negotiations, understandings, representations and statements respecting the subject matter hereof, whether written or oral.

8.12Amendments. Any amendment, supplement or modification of or to any provision of this Agreement, any waiver of any provisions of this Agreement shall be effective only if made or given in writing and signed by the Company and the Purchasers.

8.13No Third Party Rights. This Agreement is intended solely for the benefit of the parties hereto and is not intended to confer any benefits upon, or create any rights in favor of, any Person (including, without limitation, any stockholder or debt holder of the Company) other than the parties hereto; provided, however, that each of the Purchaser Indemnitees that are not Purchasers are entitled to all rights and benefits as third party beneficiaries of Section 7 of this Agreement.

8.14Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. The parties hereto confirm that any facsimile copy of another party’s executed counterpart of this Agreement (or its signature page thereof) will be deemed to be an executed original thereof.

[Signature Pages Follow]

IN WITNESS WHEREOF, the parties hereto have executed this Securities Purchase Agreement under seal as of the day and year first above written.

UNI-PIXEL, INC.
By:
	Name: Reed J. Killion
	Title: President

SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT

PURCHASERS:
TUDOR INVESTMENT CORP., as investor adviser to each Purchaser listed on Schedule 1 (other than Tudor Proprietary Trading, L.L.C.)
By:
	Name:
	Title:
TUDOR PROPRIETARY TRADING, L.L.C.
By:
	Name:
	Title:

SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT

EX-2

EXHIBIT 2

UNI-PIXEL, INC.

INVESTORS’ RIGHTS AGREEMENT

This INVESTORS’ RIGHTS AGREEMENT (this “Agreement”) is made as of February 13, 2007, by and among UNI-PIXEL, INC., a Delaware corporation, (the “Company”), and the investors listed in Schedule 1 hereto (each such investor individually, an “Investor” and, collectively, the “Investors”).

WHEREAS the Investors are parties to the Securities Purchase Agreement of even date herewith by and among the Company and the Investors (the “Securities Purchase Agreement”), and it is a condition to the closing of the sale of the Company’s Series B Preferred Stock, par value $0.001 per share (the “Series B Preferred Stock”), and Warrants (as defined below) to the Investors that the Company execute and deliver this Agreement with the Investors.

NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, the parties hereto hereby agree as follows:

1.Definitions. As used in this Agreement, the following terms shall have the respective meanings set forth below or elsewhere in this Agreement as described below:

“Affiliate” of any Person means any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person, as such terms are used and construed under Rule 144 (as defined below), and with respect to any Tudor Entity (as defined below), in addition to the foregoing, the term “Affiliate” shall also include the Related Entities.

“Board” means the Board of Directors of the Company.

“Business Day” means any day except Saturday, Sunday and any day which is a federal legal holiday or a day on which banking institutions in the State of New York or Texas are authorized or required by law or other governmental action to close.

“Certificate of Designations” means the Certificate of Designations of the Series B Preferred Stock filed by the Company with the Secretary of State of the State of Delaware establishing the rights, preferences and privileges of the Series B Preferred Stock.

“Closing Date” has the meaning set forth in the Securities Purchase Agreement.

“Common Stock” means the Company’s common stock, par value $0.001 per share, (including any securities into which or for which such shares may be exchanged, or converted, pursuant to any stock dividend, stock split, stock combination, recapitalization, reclassification, reorganization or other similar event).

“Conversion Shares” means the shares of Common Stock issuable upon conversion of the shares of Series B Preferred Stock, as set forth in the Certificate of Designations.

“Equity Securities” means (i) any Common Stock, preferred stock or other equity security of the Company, (ii) any security convertible into or exercisable or exchangeable for, with or without consideration, any Common Stock, preferred stock or other equity security of the Company (including any option to purchase such a convertible security), (iii) any security carrying any option, warrant or right to subscribe to or purchase any Common Stock, preferred stock or other equity security or (iv) any such option, warrant or right.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and all of the rules and regulations promulgated thereunder.

“Fully Diluted Common Stock” means the outstanding Common Stock and the shares of Common Stock issued or issuable upon conversion in full of the shares of Series B Preferred Stock and exercise in full of the Warrants, together with all other Equity Securities of the Company outstanding as of any applicable record or measure date, treated on an as-if-converted or as-if-exercised basis, as applicable.

“Holder” means any Investor who holds Registrable Securities (as defined below) and any holder of Registrable Securities to whom the registration rights conferred by this Agreement have been duly and validly transferred in accordance with Section 9 of this Agreement.

“Initial Public Offering” means the closing of the Company’s first public offering of the Company’s Common Stock registered under the Securities Act.

“Person” (whether or not capitalized) means an individual, partnership, limited liability company, corporation, association, trust, joint venture, unincorporated organization, and any government, governmental department or agency or political subdivision thereof.

“Prospectus” means the prospectus included in any Registration Statement (as defined below) (including, without limitation, a prospectus that includes any information previously omitted from a prospectus filed as part of an effective Registration Statement in reliance upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference in such Prospectus.

“Qualified Public Offering” means a bona fide public offering, pursuant to an effective registration statement under the Securities Act covering the offer and sale of Common Stock for the account of the Company, by a reputable investment bank on a firm commitment underwriting basis in which (x) the price per share of Common Stock is at least five times (5x) the then applicable Series B Preferred Conversion Price (as defined in the Certificate of Designations), and (y) the gross cash proceeds to the Company (before underwriting discounts, commissions and fees) are $75,000,000 or more (or such other amount as approved by the Board, including at least one Series B Director (as defined in the Certificate of Designations), if any are on the Board at such time), and following which offering the Common Stock is listed on the New York Stock Exchange or admitted to quotation on NASDAQ (or such other appropriate securities exchange as approved by the Board, including at least one Series B Director, if any are on the Board at such time).

Qualifying Holder means any Investor who (together with its Affiliates) holds Series B Preferred Stock and/or Warrants representing (on an as-if-converted and/or as-if-exercised basis, respectively) five percent (5%) or more of the Company’s Fully Diluted Common Stock.

The terms “register,” “registered” and “registration” shall refer to a registration effected by preparing and filing a Registration Statement (as defined below) in compliance with the Securities Act (as defined below) and the declaration or ordering of the effectiveness of such registration.

“Registrable Securities” means, at the relevant time of reference thereto, the Conversion Shares and the Warrants Shares (including any shares of capital stock that may be issued in respect thereof pursuant to a stock split, stock dividend, recombination, reclassification or the like); provided, however, that the term “Registrable Securities” shall not include any of the Conversion Shares or Warrant Shares that (a) are actually sold pursuant to a registration statement that has been declared effective under the Securities Act by the SEC, (b) may be sold at such time by the holder thereof pursuant to Rule 144(k) under the Securities Act, or (c) cease to be outstanding.

“Registration Statement” means any registration statements contemplated by this Agreement, including (in each case) the Prospectus, amendments and supplements to such registration statement or Prospectus, pre- and post-effective amendments thereto, all exhibits thereto, and all material incorporated by reference in such registration statement or Prospectus.

“Related Entities” includes, with respect to any Tudor Entity, any entities for which any of the Tudor Entities or any of its Affiliates serve as general partner and/or investment advisor or in a similar capacity, and all mutual funds or other pooled investment vehicles or entities under the control or management of any of the Tudor Entities or its Affiliates. For purposes of this Agreement (a) “Tudor Entities” means each of the following: Tudor Investment Corporation, Tudor Group Holdings, LLC, their respective Affiliates, and any Affiliate or Affiliated Group of Tudor Investment Corporation and/or Tudor Group Holdings LLC, and (b) with respect to the Tudor Entities, “Affiliated Group” has the meaning given to it in Section 1504 of the Internal Revenue Code of 1986, as amended, and in addition includes any analogous combined, consolidated or unitary group, as defined under any applicable state, local or foreign income tax law.

“Restricted Securities” means any Registrable Securities required to bear the legend set forth in Section 9(b) of this Agreement.

“Rule 144” means Rule 144 promulgated under the Securities Act and any successor or substitute rule, law or provision.

“SEC” means the Securities and Exchange Commission.

“Securities Act” means the Securities Act of 1933, as amended, and all of the rules and regulations promulgated thereunder.

“Shares” means the shares of Series B Preferred Stock issued and sold by the Company to the Investors pursuant to the Securities Purchase Agreement.

“Warrant Shares” means the shares of Common Stock issued or issuable upon the exercise of the Warrants.

“Warrants” means the warrants to purchase up to in aggregate 6,839,279 shares of Common Stock issued to the Investors pursuant to Section 2.3 of the Securities Purchase Agreement.

2.Demand Registration.

(a)Request for Registration. If the Company shall receive at any time after one hundred eighty (180) days following the effective date of the registration statement for the Initial Public Offering a written request from (x) the Tudor Entities (together with their Related Entities), provided at such time they collectively hold shares of Common Stock (on an as-if-converted to Common Stock basis in respect of the Shares and as-if-exercised basis in respect of the Warrants) representing in aggregate five percent (5%) or more of the Fully Diluted Common Stock or (y) Investors (together with the Investors’ Affiliates) holding shares of Common Stock (on an as-if-converted to Common Stock basis in respect of the Shares and as-if-exercised basis in respect of the Warrants) representing in aggregate twenty percent (20%) or more of the Fully Diluted Common Stock, that the Company effect any registration with respect to all or a part of the Registrable Securities held by requesting Investors, then the Company shall, subject to the conditions set forth in this Section 2, use its reasonable best efforts to:

(i)as soon as practicable, prepare and file with the SEC a Registration Statement on such form under the Securities Act then available to the Company for the purpose of registering under the Securities Act all or such portion of the Registrable Securities as are specified in such request (together with any shares of Common Stock desired to be included in such Registration Statement for the account of the Company and/or the account of holders of piggy-back registration rights with respect to the Company’s Common Stock, subject to any limitations that may be advised by the managing underwriter regarding the maximum size of the offering pursuant to Section 2(d)); and

(ii)cause such Registration Statement to be declared effective as soon as practicable but in no event later than (x) the date that is ninety (90) days following the receipt of such request, in the event that such Registration Statement is not reviewed by the SEC or (y) the date that is one hundred twenty (120) days following the receipt of such request in the event such review takes place (including filing with the SEC, within three (3) Business Days of the date that the Company is notified in writing by the SEC that such Registration Statement will not be reviewed or will not be subject to further review, a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities Act, which request shall request an effective date that is within three (3) Business Days of the date of such request), and to remain effective, subject to the provisions of Section 2(c), for not less than 180 days. The Company shall notify each requesting Investor in writing promptly (and in any event within three (3) Business Days) after such Registration Statement has been declared effective by the SEC.

(b)Limitations. The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 2:

(i)in any particular jurisdiction in which the Company would be required to execute a general consent to service of process, qualify to do business as a foreign corporation or become subject to taxation in such jurisdiction, in effecting such registration, qualification, or compliance, unless the Company is already subject to service, qualified to do business or subject to taxation in such jurisdiction and except as may be required by the Securities Act;

(ii)after the Company, in the case of Investors meeting the requirements of Section 2(a)(x) or Section 2(a)(y), respectively, has effected two (2) such registrations pursuant to this Section 2 (counting for these purposes only registrations which have been (A) declared or ordered effective and pursuant to which securities have been sold as contemplated in the Registration Statement or (B) withdrawn at the request of the requesting Investors other than as a result of a material adverse change to the Company);

(iii)during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a registration for the Company’s account that is subject to Section 3 hereof; provided, however, that the Company is actively employing in good faith its best efforts to cause such registration statement to become effective; or

(iv)if the requesting Investors propose to dispose of Registrable Securities that may be immediately registered on Form S-3 pursuant to Section 4 hereof for disposal in the manner requested.

(c)Deferral. Notwithstanding anything in this Section 2 to the contrary, if the Company shall furnish to the Investors a certificate signed by the President, Chief Executive Officer or Chief Financial Officer of the Company stating that the Board has made the good faith determination (i) that the filing of a Registration Statement pursuant to this Section 2 covering the Registrable Securities would require, under the Securities Act, premature disclosure in such Registration Statement (or the Prospectus relating thereto) of material, nonpublic information concerning the Company, its business or prospects or any proposed material transaction involving the Company, (ii) that such premature disclosure would be materially adverse to the Company, its business or prospects or any such proposed material transaction or otherwise would not be in the best interests of the Company and (iii) that it is therefore essential to defer the filing of such Registration Statement (and the Prospectus relating thereto), then the Company shall have the right to defer the filing of such Registration Statement (and the Prospectus relating thereto) for a period not greater than sixty (60) consecutive days; provided, however, that the Company shall not defer its obligation in this manner more than twice in any consecutive twelve (12) month period. The Company agrees that, as promptly as possible after the consummation, abandonment or public disclosure of the circumstances that caused the Company to defer the filing of such Registration Statement (and the Prospectus relating thereto) pursuant to this Section 2(c), the Company will as soon as practicable file such Registration Statement.

(d)Underwriting. If the requesting Investors intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2. In such event, the right of any requesting Investor to include all or any portion of its Registrable Securities in such registration pursuant to this Section 2 shall be conditioned upon such Investor’s participation in such underwriting and the inclusion of such Investor’s Registrable Securities to the extent provided herein. The Company shall (together with all Investors proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the requesting Investors, which underwriters are reasonably acceptable to the Company.

If the managing underwriter advises the requesting Investors in writing that, in its opinion, the number of shares requested by the Investors to be included in such registration, as well as any other shares requested by other shareholders to be included in such registration pursuant to any piggy-back registration rights or proposed to be included by the Company, is likely to affect materially and adversely the success of the offering, the timing, the method of distribution or the price that would be received for any shares of Common Stock offered in such offering, then, notwithstanding anything in this Section 2 or any other agreements of the Company with any other shareholders to the contrary, the Company shall be required to include in such registration the Registrable Securities requested to be included in such registration for the account of the requesting Investors, in priority to any other shareholders and the Company, and as among the requesting Investors pro rata based on the number of Registrable Securities held by them or on such other basis as they may agree among themselves.

If an Investor which has requested inclusion of Registrable Securities in such registration as provided above does not agree to the terms of any such underwriting, such Investor’s Registrable Securities may be excluded therefrom. Any Registrable Securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If Registrable Securities are so withdrawn from the registration, and if the number of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2(d), then the Company shall then offer to other shareholders who have retained rights to include securities in the registration the right to include additional shares in the registration in an aggregate amount equal to the number of shares so withdrawn.

3.“Piggyback” Registration.

(a)Company Registration. If at any time the Company proposes to register any of its Common Stock under the Securities Act for an underwritten offering, whether for its own account (other than in connection with the Initial Public Offering) or the account of others (but excluding any registrations to be effected on Forms S-4 or S-8 or other applicable successor forms), the Company shall, each such time, give to all Holders twenty (20) days’ prior written notice of its intent to do so, and such notice shall describe the proposed registration and shall offer such Holders the opportunity to include in such registration such number of Registrable Securities as each such Holder may request. Upon the written request of any Holder given to the Company within fifteen (15) days after the receipt of any such notice by the Company, the Company shall include in such Registration Statement the Registrable Securities of such Holder requested to be registered, subject to cut-back as provided in Section 3(b) below. The Holders of Registrable Securities shall be permitted to join in any demand for registration by any other shareholders of the Company pursuant to any registration rights that they may have (including in respect of an Initial Public Offering), and in such event the Registrable Securities held by such Holders shall be counted for purposes of determining whether the minimum number of shares entitled to demand registration shall have made such demand (to the extent required) and the Holders shall be entitled to the piggyback registration rights provided in this Section 3 in any registration effected by the Company pursuant to such demand.

(b)If the managing underwriter advises the Company in writing that, in its opinion, the number of shares requested by the Holders to be included in such registration is likely to affect materially and adversely the success of the offering, the timing, the method of distribution or the price that would be received for any shares of Common Stock offered in such offering, then, notwithstanding anything in this Section 3 to the contrary, the Company shall only be required to include in such registration, to the extent of the number of shares of Common Stock which the Company is so advised can be sold in such offering without such effect (the “Maximum Number”), a number of shares of Common Stock requested to be included in such registration: (i) if such registration is being made pursuant to the exercise of the demand registration rights of a shareholder of the Company, then those shares to be registered for the account of the demanding shareholder up to the Maximum Number, and if all such shares do not exceed the Maximum Number, then such other shares to be registered for the account of the Company, such Holders and such other stockholders of the Company exercising their piggy-back registration rights, in an amount up to the remaining balance of the Maximum Number, pro rata on the basis of the number of shares of Common Stock that each of them has requested or proposed to be included in such registration; and (ii) if such registration is being made for the Company’s own account, then those shares to be registered for the Company up to the Maximum Number, and if all such shares do not exceed the Maximum Number, then such other shares to be registered for the account of the Holders and such other stockholders of the Company exercising their piggy-back registration rights, in an amount up to the remaining balance of the Maximum Number, pro rata on the basis of the number of shares of Common Stock that each of them has requested or proposed to be included in such registration. Notwithstanding the foregoing, in no event shall the amount of securities of the selling Holders included in the offering be less than thirty percent (30%) of the total number of shares originally requested by the Holders to be included in such offering. For purposes of the preceding sentence concerning apportionment, for any selling shareholder that is a Holder of Registrable Securities and that is an investment fund, partnership or corporation, the affiliated investment funds, partners, retired partners and shareholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single selling Holder, and any pro rata reduction with respect to such selling Holder, shall be based upon the aggregate amount of Registrable Securities requested to be included in such registration by all such related entities and individuals.

(c)The Company shall not be required under this Section 3 or otherwise to include the Registrable Securities of any Holder in any such registration unless such Holder accepts and agrees to the terms of the underwriting, which shall be reasonable and customary, as agreed upon between the Company and the underwriters selected by the Company, and such Holder complies with its obligations under Section 8 hereof.

4.   Registration on Form S-3.

(a)Request for Form S-3 Registration. After the Initial Public Offering, the Company shall use its reasonable best efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. After the Company has qualified for the use of Form S-3, in addition to the rights contained in Sections 2 and 3 and subject to the conditions set forth in this Section 4, if the Company shall receive from a Holder or Holders of Registrable Securities a written request that the Company effect any registration on Form S-3 or any similar short form registration statement with respect to all or part of the Registrable Securities, the Company shall take all such action with respect to the registration of such Registrable Securities as required by Section 2(a)(i) and (ii), and upon the effectiveness of the registration statement, to maintain such effectiveness for offers and sales from time to time, on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, of the Registrable Securities requested to be included until all of the Registrable Securities registered thereunder shall have been sold in the matter contemplated therein.

(b)Limitations on Form S-3 Registration. The Company shall not be obligated to effect, or take any action to effect, any such registration pursuant to this Section 4 in any of the circumstances described in Section 2(b)(i) or (iii), and shall not be required to effect more than two registrations per year pursuant to Section 4(a).

(c)Deferral; Suspension. Notwithstanding anything in this Section 4 to the contrary, if the Company shall furnish to the Investors a certificate signed by the President, Chief Executive Officer or Chief Financial Officer of the Company stating that the Board has made the good faith determination (i) that upon the advice of counsel the continued use by the Investors of a Registration Statement pursuant to this Section 4 for purposes of effecting offers or sales of Registrable Securities pursuant thereto would require, under the Securities Act, premature disclosure in such Registration Statement (or the Prospectus relating thereto) of material, nonpublic information concerning the Company, its business or prospects or any proposed material transaction involving the Company and (ii) that such premature disclosure would be materially adverse to the Company, its business or prospects or any such proposed material transaction or otherwise would not be in the best interests of the Company, then the right of the Investors to use such Registration Statement (and the Prospectus relating thereto) for purposes of effecting offers or sales of Registrable Securities pursuant thereto and the filing of such Registration Statement pursuant to a request under this Section 4 may be suspended or deferred, as the case may be, for a period (the “Suspension Period”) not greater than sixty (60) consecutive days and with not more than two (2) Suspension Periods in any consecutive twelve (12) month period. During the Suspension Period, the Investors shall not offer or sell any Registrable Securities pursuant to or in reliance upon such Registration Statement (or the Prospectus relating thereto). The Company agrees that, as promptly as possible after the consummation, abandonment, public disclosure or other appropriate resolution of the event or transaction that caused the Company to suspend the use or delay the filing of such Registration Statement (and the Prospectus relating thereto) pursuant to this Section 4(c), the Company shall as promptly as possible lift any suspension or terminate any delay, as the case may be, provide the Investors with revised Prospectuses, if required, and notify the Investors of their ability to effect offers or sales of Registrable Securities pursuant to or in reliance upon such Registration Statement.

(d)Underwriting. If the Holders requesting registration under this Section 4 intend to distribute the Registrable Securities covered by their request by means of an underwriting, the provisions of Section 2(d) shall apply to such registration. Notwithstanding anything contained herein to the contrary, registrations effected pursuant to this Section 4 shall not be counted as requests for registration or registrations effected pursuant to Section 2.

5.Obligations of the Company. In connection with the Company’s registration obligations hereunder, the Company shall, as expeditiously as practicable:

(a)(i) Furnish to each Holder copies of all Registration Statements filed with the SEC prior to their being filed with the SEC, (ii) use commercially reasonable efforts to cause its officers and directors, counsel and certified public accountants to respond to such inquiries and provide such certification, opinions and review letters as shall be necessary, in the reasonable opinion of such Holder or its counsel, to conduct a reasonable investigation within the meaning of the Securities Act and customary for the registration and distribution pursuant thereto, and (iii) notify the Holders of any stop order issued or threatened by the SEC and use best efforts to prevent the entry of such stop order or to remove it if entered.

(b)Prepare and file with the SEC such amendments and supplements, including post-effective amendments, to each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the Securities Act and to keep the Registration Statement continuously effective as required herein, and prepare and file with the SEC such additional Registration Statements as necessary to register for resale under the Securities Act all of the Registrable Securities to include naming any permitted transferees of Registrable Securities as selling stockholders in such Registration Statement and otherwise as required pursuant to Sections 5(c) or (d) below; (ii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424; (iii) respond as promptly as practicable to any comments received from the SEC with respect to each Registration Statement or any amendment thereto and as promptly as practicable provide the Holders true and complete copies of all correspondence from and to the SEC relating to the Registration Statement (other than correspondence containing material nonpublic information); and (iv) comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by such Registration Statement as so amended or in such Prospectus as so supplemented.

(c)Notify the Holders and their counsel as promptly as practicable: (i) when the SEC notifies the Company whether there will be a “review” of a Registration Statement and whenever the SEC comments in writing on such Registration Statement and (ii) when a Registration Statement, or any post-effective amendment or supplement thereto, has become effective, and after the effectiveness thereof: (A) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (B) of the issuance by the SEC or any state securities commission of any stop order suspending the effectiveness of the Registration Statement covering any or all of the Registrable Securities or the initiation of any proceedings for that purpose; and (C) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose. Without limitation of any remedies to which the Investors may be entitled under this Agreement, if any of the events described in Section 5(c)(ii)(A), (B), and (C) occurs, the Company shall use best efforts to respond to and correct the event. Upon its receipt of written notification from the Company of the occurrence of any of the events described in Section 5(c)(ii)(A),(B) and (C), each Holder shall not offer or sell any of its Registrable Securities pursuant to the Prospectus until it has been advised in writing by the Company that it may resume sales, either under such Prospectus or pursuant to any amendment or supplement thereto delivered by the Company to such Holder.

(d)Notify the Holders and their counsel as promptly as practicable of the occurrence (but not the nature or details) of any event as a result of which the Prospectus included in or relating to a Registration Statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading; and, thereafter, the Company shall as promptly as practicable prepare (and, when completed, give notice to each Investor) a supplement or amendment to such Prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such Prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading; provided, however, that upon such notification by the Company, the Holders shall not offer or sell Registrable Securities pursuant to such Prospectus until the Company has notified the Investors that it has prepared a supplement or amendment to such Prospectus and delivered copies of such supplement or amendment to the Investors (it being understood and agreed by the Company that the foregoing proviso shall in no way diminish or otherwise impair the Company’s obligation to as promptly as practicable prepare a Prospectus amendment or supplement as above provided in this Section 5(d) and deliver copies of same as above provided in Section 5(h) hereof).

(e)Upon the occurrence of any event described in Section 5(d) hereof, as promptly as practicable, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading.

(f)Use reasonable best efforts to avoid the issuance of or, if issued, obtain the withdrawal of, (i) any order suspending the effectiveness of any Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, as promptly as possible.

(g)Furnish to the Holders and their counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, and all exhibits to the extent requested by such Holder or their counsel (including those previously furnished or incorporated by reference) as promptly as practicable after the filing of such documents with the SEC.

(h)As promptly as practicable furnish to each selling Holder, without charge, such number of copies of a Prospectus, including a preliminary Prospectus, in conformity with the requirements of the Securities Act, and such other documents (including, without limitation, Prospectus amendments and supplements) as each such selling Holder may reasonably request in order to facilitate the disposition of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto. The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto to the extent permitted by federal and state securities laws and regulations.

(i)Use reasonable best efforts to register and qualify (or obtain an exemption from such registration and qualification of) the Registrable Securities under such other securities or blue sky laws of the states of residence of each Holder and such other jurisdictions as each Holder shall reasonably request, to keep such registration or qualification (or exemption therefrom) effective during the periods each Registration Statement is effective, and do any and all other acts or things which may be reasonably necessary or advisable to enable each Holder to consummate the public sale or other disposition of Registrable Securities in such jurisdiction; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business, to file a general consent to service of process or become subject to taxation in any such states or jurisdictions where it is not then qualified or subject to process or taxation.

(j)Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by this Agreement, the Securities Purchase Agreement and applicable law, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as such Holders may request.

(k)Cooperate with any reasonable due diligence investigation undertaken by the Holders, any managing underwriter participating in any disposition pursuant to a Registration Statement, Holders’ counsel and any attorney, accountant or other agent retained by Holders or any managing underwriter, in connection with the sale of the Registrable Securities, including, without limitation, making available any documents and information; provided, however, that the Company will not deliver or make available to any Holder material, nonpublic information unless such Holder specifically requests and consents in advance in writing to receive such material, nonpublic information and, if requested by the Company, such Holder agrees in writing to treat such information as confidential and use its reasonable best efforts to maintain the confidentiality thereof.

(l)At the request of an Affiliate of a Holder, the Company shall amend any Registration Statement to include such Affiliate as a selling stockholder in such Registration Statement.

(m)Comply with all applicable rules and regulations of the SEC.

6.Expenses of Registration. The Company shall pay for all expenses (exclusive of underwriting discounts and commissions, if any) incurred in connection with a registration pursuant to this Agreement and compliance with Section 5 of this Agreement, including, without limitation, (i) all registration, filing and qualification fees and expenses (including without limitation those related to filings with the SEC, or any national securities exchange or automated quotation system upon which the Company’s securities are listed or admitted for quotation and in connection with applicable state securities or blue sky laws), (ii) all printing expenses, (iii) all messenger, telephone and delivery expenses incurred by the Company, (iv) all fees and disbursements of counsel for the Company and of one counsel for the Holders, such fees and disbursements of counsel for the Holders not to exceed $40,000, and (v) all fees and expenses of all other Persons retained by the Company in connection with the consummation of the transactions contemplated by this Agreement.

7.Indemnification. In the event that any Registrable Securities of the Investors are included in a Registration Statement pursuant to this Agreement:

(a)To the fullest extent permitted by law, the Company will indemnify and hold harmless each Investor and each officer, director, fiduciary, agent, investment advisor, employee, member (or other equity holder), general partner and limited partner (and Affiliates thereof) of such Investor, each broker, underwriter or other person acting on behalf of such Investor and each person, if any, who controls such Investor within the meaning of the Securities Act, against any losses, claims, damages or liabilities, or administrative, judicial, regulatory or civil proceedings, joint or several (the “Losses”) to which they may become subject under the Securities Act or otherwise, insofar as such Losses (or actions in respect thereof) arise out of or relate to any untrue or alleged untrue statement of any material fact contained in the Registration Statement, or arise out of or relate to the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or any violation by the Company of the Securities Act or state securities or blue sky laws applicable to the Company or the relevant registration and leading to action or inaction required of the Company in connection with such registration or qualification under such Securities Act or state securities or blue sky laws; and, subject to the provisions of Section 7(c) hereof, the Company will reimburse on demand, upon receipt of written evidence, such Investor, such broker or other person acting on behalf of such Investor or such officer, director, fiduciary, employee, member (or other equity holder), general partner, limited partner, affiliate or controlling person for any legal or other expenses reasonably incurred by any of them in connection with investigating or defending any such Losses (or actions in respect thereof); provided, however, that the indemnity agreement contained in this Section 7(a) or Section 7(e) shall not apply to amounts paid in settlement of, or pursuant to any judgment relating to, any such Losses if such settlement is effected, or consent to such judgment is entered, without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in any such case for any such Losses (or actions in respect thereof), to the extent that it arises out of or is based upon (i) an untrue statement of any material fact contained in the Registration Statement or omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, in reliance upon and in conformity with written information furnished by such Investor to the Company expressly for use in such Registration Statement, or (ii) the failure of the Investor to cease all offers and sales of Registrable Securities when required to do so pursuant to Sections 4(c), 5(c) and (d) hereof.

(b)To the fullest extent permitted by law, each Investor, severally (as to itself) and not jointly, will indemnify and hold harmless the Company, each of its directors, each of its officers who have signed the Registration Statement, each person, if any, who controls the Company within the meaning of the Securities Act, all other Investors and each broker, underwriter or other person acting on behalf of the Company or such other Investors, against any Losses to which any of them may become subject under the Securities Act or otherwise, insofar as and to the extent such Losses (or actions in respect thereto) arise out of or are based upon any untrue statement of any material fact contained in the Registration Statement, or arise out of or relate to the omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement in reliance upon and in conformity with written information furnished by such Investor to the Company expressly for use in such Registration Statement, or to the extent such Losses (or actions in respect thereof) arise out of or are based upon the failure of the Investor to cease all offers and sales of Registrable Securities when required to do so pursuant to Sections 4(c), 5(c) and (d); and, subject to the provisions of Section 7(d) hereof, such Investor will reimburse on demand, upon receipt of written evidence, any legal or other expenses reasonably incurred by the Company or any such director, officer, controlling person, or other Investor, or such broker, underwriter or other person acting on behalf of the Company or such Investor, in connection with investigating or defending any such Losses; provided, however, that the maximum aggregate amount of liability of such Investor under this Section 7 shall be limited to the proceeds (net of underwriting discounts and commissions, if any) actually received by such Investor from the sale of Registrable Securities covered by such Registration Statement; and providedfurther, however, that the indemnity agreement contained in this Section 7(b) or Section 7(e) shall not apply to amounts paid in settlement of, or pursuant to any judgment relating to, any such Losses if such settlement is effected, or consent to such judgment is entered, without the consent of such Investor against which the request for indemnity is being made (which consent shall not be unreasonably withheld).

(c)As promptly as practicable after receipt by an indemnified party under this Section 7 of notice of the threat, assertion or commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 7, notify the indemnifying party in writing of the commencement thereof and the indemnifying party shall have the right to participate in and, to the extent the indemnifying party desires, jointly with any other indemnifying party similarly noticed, to assume at its expense the defense thereof with counsel mutually satisfactory to the parties; provided, however, that, the failure to notify an indemnifying party promptly of the threat, assertion or commencement of any such action shall not relieve such indemnifying party of any liability to the indemnified party under this Section 7 except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have proximately and materially adversely prejudiced the indemnifying party.

(d)If any indemnified party shall have reasonably concluded that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to the indemnifying party, or that such claim or litigation involves or could have an effect upon matters beyond the scope of the indemnity agreement provided in this Section 7, the indemnifying party shall not have the right to assume the defense of such action on behalf of such indemnified party, and such indemnifying party shall reimburse such indemnified party and any person controlling such indemnified party for the fees and expenses of one counsel retained by the indemnified party which are reasonably related to the matters covered by the indemnity agreement provided in this Section 7. Subject to the foregoing, an indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof but the fees and expenses of such counsel shall not be at the expense of the indemnifying party.

(e)If the indemnification provided for in this Section 7 from the indemnifying party is applicable by its terms but unavailable to an indemnified party hereunder in respect of any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall, subject to the maximum aggregate liability of such indemnifying party hereunder, contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations. The relative faults of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 7(a), (b), (c) and (d), any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of fraudulent misrepresentation. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in this paragraph.

(f)The indemnity and contribution agreements contained in this Section are in addition to (not in lieu of) any liability that any indemnifying party may have to any indemnified party.

8Information by Holder. Each Holder shall, as a condition to the inclusion of any of its Registrable Securities in any registration hereunder, furnish to the Company such information regarding itself and the Registrable Securities held by it and the method or proposed method of disposition of such securities as the Company may reasonably request in writing as necessary to effect the registration, qualification, or compliance referred to in Sections 2, 3, 4 or 5 or as otherwise necessary to comply with the Securities Act and any applicable state securities laws.

9.Restrictions on Transfer.

(a)The holder of each certificate representing Registrable Securities by acceptance thereof agrees to comply in all respects with the provisions of this Section 9. Each Holder agrees not to make any sale, assignment, transfer, pledge or other disposition of all or any portion of the Restricted Securities, or any beneficial interest therein, except (i) pursuant to an effective registration statement under the Securities Act, including such as required hereunder, or (ii) pursuant to an available exemption from registration under the Securities Act (including sales permitted pursuant to Rule 144) and applicable state securities laws. Any transfer or purported transfer of the Restricted Securities in violation of this Section 9 shall be void. The Company shall not be required to register any transfer of the Restricted Securities in violation of this Section 9. The Company may, and may instruct any transfer agent for the Company, to place such stop transfer orders as may be required on the transfer books of the Company in order to ensure compliance with the provisions of this Section 9.

(b)Each certificate representing Registrable Securities shall (unless otherwise permitted by the provisions of this Agreement) be stamped or otherwise imprinted with a legend substantially similar to the following (in addition to any legend required under applicable state securities laws):

THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED OR SOLD IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, REGISTRATION UNDER SAID ACT.

(c)The legend set forth in Section 9(b) shall be removed from the certificates evidencing the Restricted Securities, (i) in connection with any sale of such Restricted Securities pursuant to Rule 144 or any effective registration statement, including such as required hereunder, or (ii) if such Restricted Securities are eligible for sale under Rule 144(k) (and the holder of such Restricted Securities has submitted a written request for removal of the legend certifying that the holder is in compliance with the applicable provisions of Rule 144(k)) or (iii) if such legend is not required under applicable requirements of the Securities Act (including interpretations and pronouncements issued by the Staff of the SEC) (and the holder of such Restricted Securities has submitted a written request for removal of the legend certifying that such legend is not required under applicable requirements of the Securities Act (including such interpretations and pronouncements)) and, if reasonably requested by the Company, the Company has received from the Holder’s counsel an opinion, in such form as is reasonably satisfactory to Company’s counsel, that such legend is not so required. The Company shall cause its counsel to issue a legal opinion to the Company’s transfer agent, if required, promptly upon the occurrence of any of the events in clauses (i), (ii) or (iii) above to effect the removal of the legend on certificates evidencing the Restricted Securities and shall also cause its counsel to issue a “blanket” legal opinion to the Company’s transfer agent, if required, promptly after the effective date of any registration statement, including such as required hereunder, covering the resale of the Restricted Securities to allow sales without restriction pursuant to such registration statement. The Company agrees that at such time as such legend is no longer required under this Section 9, it will, promptly following the delivery by a Holder to the Company or the Company’s transfer agent of a certificate representing the Restricted Securities issued with such legend, deliver or cause to be delivered to or as directed by such Holder a certificate representing such Restricted Securities that is free from such legend; provided, however, that in the case of removal of the legend in connection with a sale pursuant to Rule 144, the holder of such Restricted Securities has submitted a written request for removal of the legend indicating that the holder has complied with the applicable provisions of Rule 144, including delivery of a broker’s representation letter and a copy of a Form 144 filed in connection with such sale. The Company may not make any notation on its records or give instructions to any transfer agent of the Company that enlarge the restrictions on transfer set forth in this Section.

10.Reports Under the Exchange Act. With a view to making available to the Holders the benefits of Rule 144 and any other rule or regulation of the SEC that may at any time permit the Holders to sell the Registrable Securities to the public without registration, the Company agrees to use best efforts to: (i) make and keep public information available, as those terms are understood and defined in Rule 144; (ii) file with the SEC in a timely manner all reports and other documents required to be filed by an issuer of securities registered under the Securities Act or the Exchange Act; (iii) as long as any Holder owns any Restricted Securities, to furnish in writing upon such Holder’s request a written statement by the Company that it has complied with the reporting requirements of Rule 144 and of the Securities Act and the Exchange Act, and to furnish to such Holder a copy of the most recent annual and quarterly reports of the Company, and such other reports and documents so filed by the Company as may be reasonably requested in availing such Holder of any rule or regulation of the SEC permitting the selling of any such Restricted Securities without registration; and (iv) undertake any additional actions reasonably necessary to maintain the availability of a registration statement, including on any successor or substitute forms, and the use of Rule 144.

11.Limitations on Subsequent Registration Rights. From and after the date of this Agreement, the Company shall not, without the prior written consent of the Holders of a majority of the then outstanding Registrable Securities, enter into any agreement with any holder or prospective holder of any securities of the Company giving such holder or prospective holder any registration rights the term of which are senior to the registration rights granted to the Holders hereunder.

12.Information Covenants of the Company. If at any time the Company shall cease to be a reporting company under the Exchange Act, the Company shall furnish the following reports to each Qualifying Holder:

(a)As soon as practicable after the end of each fiscal year of the Company, and in any event within ninety (90) days after the end of each fiscal year of the Company, a consolidated balance sheet of the Company and its subsidiaries, if any, as at the end of such fiscal year, and consolidated statements of income and cash flows of the Company and its subsidiaries, if any, for such fiscal year, prepared in accordance with U.S. generally accepted accounting principles (“GAAP”), applied on a consistent basis during the periods involved, except as indicated therein or in the notes thereto, audited by nationally recognized independent accounting firm experienced with rapidly growing companies selected by the Company.

(b)As soon as practicable after the end of each of the first three (3) quarterly accounting periods in each fiscal year of the Company, and in any event within forty five (45) days after the end of each such quarterly accounting period, (i) an unaudited consolidated balance sheet of the Company and its subsidiaries, if any, as at the end of such quarterly accounting period, and unaudited consolidated statements of income and cash flows of the Company and its subsidiaries, if any, for such fiscal period, prepared in accordance with GAAP, applied on a consistent basis during the periods involved, subject to normal year-end audit adjustments, together with an appropriately detailed and informative discussion and review by management of the financial results and performance of the Company and material developments in its business during such fiscal period, and (ii) a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the number of common shares issuable upon conversion or exercise of any outstanding securities convertible or exercisable for common shares and the exchange ratio or exercise price applicable thereto, all in sufficient detail as to permit the Investor to calculate its percentage equity ownership in the Company.

(c)As soon as practicable after the end of each month, and in any event within thirty (30) days after the end of each month, an unaudited consolidated balance sheet of the Company and its subsidiaries, if any, as at the end of such month, and unaudited consolidated statements of income and cash flows of the Company and its subsidiaries, if any, for such month, prepared in accordance with GAAP, applied on a consistent basis during the period involved, subject to normal year-end audit adjustments.

(d)At least thirty (30) days prior to the beginning of each fiscal year, an annual budget and operating plans of the Company for such fiscal year (and as soon as available, any subsequent revisions thereto), such annual budget and operating plans (including an subsequent revisions thereto) to be approved by the Board.

13.“Market Stand-Off” Agreement. Each of the Investors hereby agrees that it will not, without the prior written consent of the managing underwriter, during the period commencing on the date of the final prospectus relating to the Company’s Initial Public Offering and ending on the date specified by the Company and the managing underwriter (such period not to exceed one hundred eighty (l80) days) (i) lend, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock held immediately prior to the effectiveness of the Registration Statement for such offering, or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise. The foregoing provisions of this Section 13 shall only be applicable to the Investors if all officers, directors and greater than one percent (1%) shareholders of the Company enter into similar agreements. The underwriters in connection with the Company’s Initial Public Offering are intended third-party beneficiaries of this Section 13 and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto. Each of the Investors further agrees to execute such agreements as may be reasonably requested by the underwriters in the Company’s Initial Public Offering that are consistent with this Section 13 or that are necessary to give further effect thereto. Any discretionary waiver or termination of the restrictions of any or all of such agreements by the Company or the underwriters shall apply to all of the parties subject thereto, including the Investors, pro rata based on the number of shares subject to such restrictions.

14.Qualifying Holders’ Participation Rights in Subsequent Financings.

(a)Subject to applicable securities laws, following the Closing and prior to the Qualified Public Offering, the Company shall not, and shall not agree to, issue, sell or exchange any Equity Securities in a financing transaction (any transaction other than the excluded transactions described in subsection (c) below being deemed to be a financing transaction) (a “Financing”), unless the Company shall have first complied with this Section 14. The Company shall deliver to each Qualifying Holder a written notice (the “Offer”) of any proposed or intended Financing and offer to each Qualifying Holder the opportunity, but not the obligation, to participate in its pro rata share of the Financing determined, in aggregate, by multiplying the total amount of the Financing by a fraction, the numerator of which is (i) the number of shares of Fully Diluted Common Stock held by such Qualifying Holder as of the date immediately prior to the issuance of such Equity Securities (such date being the “Measuring Date”), and the denominator of which is (ii) the total number of shares of Fully Diluted Common Stock outstanding as of the Measuring Date. The Offer shall describe the terms, including price and amount, of the Financing and include a reasonably detailed calculation of each Qualifying Holder’s participation right in accordance with the foregoing. Each Qualifying Holder shall provide written notice to the Company within ten (10)Business Days from the giving of the Offer (the “Election Period”) of the amount, if any, of the Financing as to which they intend to exercise their participation right as provided above and to indicate whether such Qualifying Holder desires to exercise its over-allotment option as provided in subsection (b) below.

(b)In the event any of the Qualifying Holders, or any other securityholder of the Company with similar participation rights, decline or fail within the required periods to exercise fully their respective participation rights, the Company shall provide a further written notice to fully exercising Qualifying Holders of the amount of such Financing not subscribed for pursuant to such rights. The fully exercising Qualifying Holders shall have the right, exercisable by written notice to the Company within five (5) Business Days from the giving of such further notice by the Company (the “Over-Allotment Period”), to subscribe for a pro rata share of the unsubscribed portion of the Financing on the basis of the number of shares of Fully Diluted Common Stock held by fully exercising Qualifying Holders and other fully exercising security-holders of the Company. The closing of the Qualified Holder’s participation, and additional participation, if any, shall occur at the time contemplated in the Offer, but in any case, not any earlier than ten (10) days after the later of the Election Period and the Over-Allotment Period, if any, at which time the Qualified Holder shall receive certificates for such Qualifying Holder’s Equity Securities against payment therefor in immediately available funds. The Company shall have ninety (90)days from the end of the Over-Allotment Period, if any, to complete the unsubscribed portion of the Financing on terms not more materially advantageous to purchasers in the Financing than those described in the Offer. The Company shall comply anew with the requirements, as to an Offer and otherwise, of this Section 14 as to any Financing not completed within such period.

(c)The foregoing right of first offer shall not apply to any of the following:

(i)the conversion of the Series A Preferred Stock or Series B Preferred Stock;

(ii)the exercise of Warrants;

(iii)shares of Common Stock (or options thereon) (subject to adjustment for any stock splits, reverse stock splits, combinations or similar events affecting the Common Stock after the date of this Agreement) issued after the Closing Date to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary thereof pursuant to stock purchase or stock option plans or other compensatory arrangements (collectively, “Plans”); provided, however, that any such issuances are approved in accordance with the Certificate of Designations;

(iv)Equity Securities issued pursuant to any rights or agreements, options, warrants or convertible securities that are outstanding as of the date of this Agreement or that are issued or granted thereafter; provided, however, that the transaction pursuant to which such rights or agreements, options, warrants or convertible securities are issued or granted after the Date of this Agreement was conducted in compliance with this Section 14;

(v)any Equity Securities issued or issuable in connection with any stock split, stock dividend or recapitalization by the Company for which adjustment is made pursuant to Section 5 of the Certificate of Designations;

(vi)any Equity Securities that are issued by the Company in a Qualified Public Offering;

(vii)any Equity Securities issued in connection with bona fide acquisitions, mergers or other strategic transactions approved by the Board; and

(viii)any Equity Securities issued to any Person as a component of any business relationship with such Person, the terms of which business relationship and transaction are approved by the Board, primarily for (x) joint venture, technology licensing or development activities purposes, (y) purposes of distribution, supply or manufacture of the Company’s products or services or (z) any purposes other than raising capital.

15.Entire Agreement. This Agreement, the Securities Purchase Agreement, the Certificate of Designations and the Warrants constitute and contain the entire agreement and understanding of the parties with respect to the subject matter hereof and supersede any and all prior negotiations, correspondence, agreements or understandings with respect to the subject matter hereof.

16.Transfer of Rights. Subject to Section 9, each Investor may assign or transfer any or all of its rights under this Agreement to any Person, provided such assignee or transferee agrees in writing to be bound by the provisions hereof. Upon any such, and each successive, assignment or transfer to any permitted assignee or transferee in accordance with the terms of this Section 16, such permitted assignee or transferee shall be deemed to be an “Investor” for all purposes of this Agreement.

17.Inspection Rights. Each Qualifying Holder, or any officer, employee, agent or representative thereof, shall have the right to visit and inspect any of the properties of the Company and its subsidiaries to discuss the affairs, finances, accounts and operations of the Company and its subsidiaries with their respective officers, directors, employees, agents or representatives, and to review and copy such information as reasonably requested from time to time.

18.Miscellaneous.

(a)This Agreement, and any right, term or provision contained herein, may not be amended, modified or terminated, and no right, term or provision may be waived, except with the written consent of (i) the holders of a majority of the Series B Preferred Stock and (ii) the Company; provided, however, that any amendment or modification that is materially and disproportionately adverse to any particular Investor (as compared to all Investors as a group) shall require the consent of such Investor.

(b)This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware, without giving effect to conflicts of laws principles thereof. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement shall be adjudicated in the Supreme Court of the State of New York, New York County, or the United States District Court for the Southern District of New York and each party expressly consents to the jurisdiction of such courts in any such adjudication and expressly waives any objection to venue laid therein.

(c)This Agreement shall be binding upon the parties hereto and their respective heirs, personal representatives, successors and permitted assigns and transferees, provided that, with respect to any transfer of rights by any Investor, the terms and conditions of Section 16 are satisfied.

(d)Any notices to be given pursuant to this Agreement shall be in writing and shall be given by certified or registered mail, return receipt request. Notices shall be deemed given when personally delivered or when mailed to the addresses of the respective parties as set forth on Exhibit A, Schedule 1 and Schedule 2 hereto, as applicable, or to such changed address of which any party may notify the others pursuant hereto, except that a notice of change of address shall be deemed given when received. An electronic communication (“Electronic Notice”) shall be deemed written notice for purposes of this Section 18(d) if sent with return receipt requested to the electronic mail address specified by the receiving party on Exhibit A, Schedule 1 and Schedule 2 hereto, as applicable. Electronic Notice shall be deemed received at the time the party sending Electronic Notice receives verification of receipt by the receiving party.

(e)The parties acknowledge and agree that in the event of any breach of this Agreement, remedies at law will be inadequate, and each of the parties hereto shall be entitled to specific performance of the obligations of the other parties hereto and to such appropriate injunctive relief as may be granted by a court of competent jurisdiction. All remedies, either under this Agreement or by law or otherwise afforded to any of the parties, shall be cumulative and not alternative.

(f)This Agreement may be executed in a number of counterparts. All such counterparts together shall constitute one Agreement and shall be binding on all the parties hereto notwithstanding that all such parties have not signed the same counterpart. The parties hereto confirm that any facsimile copy of another party’s executed counterpart of this Agreement (or its signature page thereof) will be deemed to be an executed original thereof.

(g)Except as contemplated in Section 7, Section 14, and Section 16 hereof, this Agreement is intended solely for the benefit of the parties hereto and is not intended to confer any benefits upon, or create any rights in favor of, any Person (including, without limitation, any stockholder or debt holder of the Company) other than the parties hereto.

(h)If any provision of this Agreement is invalid, illegal or unenforceable, such provision shall be ineffective to the extent, but only to the extent of, such invalidity, illegality or unenforceability, without invalidating the remainder of such provision or the remaining provisions of this Agreement, unless such a construction would be unreasonable.

[Signature Pages Follow]

IN WITNESS WHEREOF, the parties hereto have executed this Investors’ Rights Agreement as of the date and year first above written.

THE COMPANY:

UNI-PIXEL, INC.

By:_____________________________

Name: Reed J. Killion

Title: President

INVESTORS:
TUDOR INVESTMENT CORP., as investment adviser to each Investor listed on Schedule 1 (other than Tudor Proprietary Trading, L. L. C.)
By:
	Name:
	Title:
TUDOR PROPRIETARY TRADING, L.L.C.
By:
	Name:
	Title:

EX-3

  
    
      Exhibit 3 Certificate of Designations for the Preferred Stock






  
    

EX-4

EXHIBIT 4

CERTIFICATE OF DESIGNATIONS OF THE

SERIES B PREFERRED STOCK

(Par Value $0.001 Per Share)

of

UNI-PIXEL, INC.

_____________________________________________

Pursuant to Section 151(g) of the

General Corporation Law of the State of Delaware

____________________________________________

The undersigned does hereby certify that the following resolutions were duly adopted by the Board of Directors (the “Board of Directors”) of Uni-Pixel, Inc., a Delaware corporation (the “Corporation”), in accordance with the provisions of Section 151 of the Delaware General Corporation Law:

WHEREAS, the Certificate of Incorporation, as amended, of the Corporation (the “Charter”), authorizes a total of 110,000,000 shares of capital stock, consisting of (i) 100,000,000 shares of common stock, par value $0.001 per share (the “Common Stock”), issuable from time to time; and (ii) 10,000,000 shares of preferred stock, par value $0.001 per share (the “Preferred Stock”), issuable from time to time in one or more series, 4,500,000 shares of which have been designated and authorized as Series A Preferred Stock (the “Series A Preferred”), and no other shares of which have been issued, as of the date hereof; and

WHEREAS, the Board of Directors wishes to designate a new series of Preferred Stock.

NOW THEREFORE, BE IT

RESOLVED, that pursuant to the authority conferred to the Board of Directors by the Charter, the Series B Preferred (as defined in Exhibit A attached hereto) be, and it hereby is, established, created and approved, and that the designations and number of shares thereof and the voting and other powers, preferences and relative, participating, optional and other rights of the shares of such series, and the qualifications, limitations and restrictions thereof, be, and they hereby are, as set forth on Exhibit A attached hereto and incorporated herein by reference for all purposes; and further

RESOLVED, that the proper officers be, and each hereby is, authorized, empowered and directed, by and on behalf of the Corporation and in its name, to prepare, execute and deliver, and file with the Secretary of State of the State of Delaware, a Certificate of Designations of the terms, limitations, rights and preferences of the Series B Preferred (the “Certificate of Designations”), with the designations, voting and other powers, preferences, relative, participating, optional and other rights, and the qualifications, limitations and restrictions, set forth on Exhibit A attached hereto.

[Missing Graphic Reference]

IN WITNESS WHEREOF, Uni-Pixel, Inc. has caused this Certificate of Designations to be signed this _____ day of February, 2007.

Uni-Pixel, Inc.
By:
	Name: Reed J. Killion
	Title: President

EXHIBIT A

Section 1.Number of Shares and Designation. This series of Preferred Stock shall be designated as “Series B Preferred Stock” and the number of shares which shall constitute such series shall be 3,200,000shares, par value $0.001 per share, of the Corporation. For the purpose of this Certificate of Designations, the Series B Preferred Stock shall be referred to as the “Series B Preferred.”

Section 2.Dividends.

(a)Holders of the Series B Preferred, prior to and in preference to the payment of any dividends with respect to the Common Stock and any Preferred Stock that ranks junior on liquidation to the Series B Preferred (the Common Stock and such Preferred Stock, the “Junior Stock”) and on a pari passu basis with respect to the Series A Preferred and any other Preferred Stock that is not Junior Stock, shall be entitled to receive dividends, when, as, if and in the amounts declared by the Board of Directors, but only out of assets that are legally available therefore; provided, however, that the Corporation may declare and pay a dividend on the Series A Preferred on December 31, 2007, in additional shares of Series A Preferred, in accordance with the terms of the Certificate of Designations for the Series A Preferred, without declaring and paying a dividend on the Series B Preferred (provided that this proviso shall have no effect on the accrual of dividends as set forth in the immediately following sentence). Dividends shall accrue, whether or not declared and paid, on the Series B Preferred at the rate per annum of 8%, and shall be cumulative as to any dividends not declared and paid in any year, compounding annually at the same rate (the “Series B Dividends”).

(b)So long as any accrued Series B Dividends have not been declared and paid in full, the Corporation shall not pay or declare any dividends, whether in cash or property, with respect to the Junior Stock, or make any other distributions on the Junior Stock, or purchase, redeem or otherwise acquire for value any shares of Junior Stock, except for acquisitions of Junior Stock that are:

(i)expressly approved by holders of the Series B Preferred in accordance with Section 3(b);

(ii)expressly approved by the Board of Directors and made pursuant to any agreements with any employee, officer or director which permit the Corporation to repurchase such shares (including any shares held by any member of the immediate family of any such individual) at or below cost (or the lesser of cost and fair market value) upon termination of employment or service; or

(iii)expressly approved by the Board of Directors and made upon exercise of the Corporation’s right of first refusal, if any, to repurchase such shares.

(c)In the event any dividends are paid or any other distributions are made on the Junior Stock, as approved by holders of the Series B Preferred in accordance with Section 3(b), the Series B Preferred shall, in addition to receiving the dividends payable in respect to Section 2(a), if any, participate ratably in such dividend or distribution on the Junior Stock (on an as-if-converted to Common Stock basis), unless otherwise consented to in accordance with Section 3(b).

(d)The provisions of Sections 2(b) and 2(c) shall not apply to any dividend on the Common Stock that is payable solely in Common Stock, as a result of which an adjustment pursuant to Section 5(e) is made.

Section 3.Voting Rights and Series B Directors.

(a)General Voting Rights. Except as otherwise provided herein or as required by law, the Series B Preferred shall vote, on an as-converted to Common Stock basis, together with the Common Stock at any annual or special meeting of the stockholders and not as a separate class, and may act by written consent in the same manner as the Common Stock. Each holder of shares of Series B Preferred shall be entitled to the number of votes equal to the number of shares of Common Stock into which such shares of Series B Preferred is convertible (pursuant to Section 5) immediately after the close of business on the record date fixed for such meeting or the effective date of such written consent and shall have voting rights and powers equal to the voting rights and powers of the Common Stock and shall be entitled to notice of any stockholders’ meeting in accordance with the Bylaws of the Corporation (the “Bylaws”).

(b)Separate Vote of Series B Preferred.

For so long as shares of the Series B Preferred representing in aggregate more than 5% of the outstanding equity interests in the Corporation on a fully-diluted and as-if-converted basis are outstanding, in addition to any other vote or consent required herein by law, the vote or written consent of the holders of more than 50% of the outstanding shares of Series B Preferred, voting together as a single class, shall be necessary for authorizing, effecting or validating the following actions (whether by merger, amendment, consolidation, reclassification, reorganization, recapitalization or otherwise) by the Corporation:

(i)Any authorization of, entry into an agreement for or consummation of any event which would constitute a Liquidation Event (as defined below);

(ii)Any amendment, alteration, repeal or waiver of any provision of this Certificate of Designations or the Bylaws or any other action that could alter or change the rights, preferences, or privileges of the Series B Preferred in a manner adverse to the Series B Preferred;

(iii)Any amendment, addition, alteration, repeal or waiver of any provision of the Charter or Bylaws;

(iv)Any creation, authorization, or issuance of any new class or series of shares of capital stock having rights, privileges or preferences senior to or on parity with the Series B Preferred or any issuance of additional shares of Series B Preferred after the Original Issue Date (as defined below);

(v)Any increase or decrease in the number of authorized shares of Series B Preferred;

(vi)Any purchase or redemption of, or payment of any dividend or other distribution on, any capital stock or any other equity interest in the Corporation, other than (x) in respect of the Series B Preferred pursuant to the provisions of this Certificate of Designations (and in respect of the Series A Preferred on a pari passu basis) and (y) as permitted under Section 2(b) above;

(vii)Any creation, incurrence, or authorization of the creation or incurrence by the Corporation or any of its subsidiaries, of any indebtedness (or the extension of lines of credit to or guaranteeing indebtedness of any other person) for money borrowed or issuance of any bonds, notes or other obligations, or any liens or security interests securing any of the foregoing, other than (x) in the ordinary course of business in an aggregate amount not in excess of $250,000 or (y) to the extent contemplated in an annual budget of the Corporation duly approved by the Board of Directors;

(viii)Any increase or decrease in the size of the Board of Directors;

(ix)Any material alteration to, or change of, the business of the Corporation or any of its subsidiaries;

(x)Any authorization of, entry into an agreement for or consummation of an Acquisition or Asset Transfer (as each such term is defined below);

(xi)Any amendment or other expansion of the Corporation’s stock option plan existing as of the Original Issue Date (the “Existing Option Plan”), including with respect to the number of shares of Common Stock permitted to be issued thereunder, or the adoption of any other stock purchase or stock option plans or other compensatory arrangements (collectively, “Plans”);

(xii)Any offer, sale or issuance of any equity interests of the Corporation for the purpose of financing the Corporation, other than in connection with bona fide commercial credit arrangements, equipment financings, commercial property loan transactions or similar transactions approved by the Board of Directors, including the Series B Directors, if any are on the Board of Directors at the relevant time;

(xiii)Any acquisition of capital stock, other interests, any material assets or the business of any other entity in any form of transaction; or

(xiv)Any action that results, directly or indirectly, by sale, license or otherwise, in the transfer or encumbrance of the Corporation’s core technology and intellectual property, other than licenses granted or encumbrance incurred in the ordinary course of business.

(c)Series B Directors. Prior to a Qualified IPO (as defined below), the holders of the Series B Preferred, by the vote or written consent of the holders of more than 50% of the outstanding shares of Series B Preferred, voting together as a single class, shall have the right to elect two (2) directors to the Board of Directors so long as shares of the Series B Preferred representing in the aggregate 25% or more of the outstanding equity interests in the Corporation on a fully-diluted and as-if-converted basis are outstanding, or one (1) director to the Board of Directors so long as shares of the Series B Preferred representing in the aggregate 10% or more, but less than 25%, of the outstanding equity interests in the Corporation on a fully-diluted and as-if-converted basis are outstanding (the “Series B Directors”). For so long as the Series B Preferred have any right to elect a Series B Director, the size of the Board of Directors shall not be more than seven (7) directors. The Corporation shall provide the Series B Directors with customary indemnification and director and officer insurance coverage, the Series B Directors shall receive the same compensation and reimbursement of expenses as generally paid or made available to directors of the Corporation, and the Series B Directors shall be entitled to retain separate legal counsel, at their own expense.

(d)Corporate Opportunities. The Corporation shall have no interest or expectation in, nor right to be informed of, any corporate opportunity, and in the event a Series B Director, a holder of Series B Preferred holding the requisite number of shares of Series B Preferred to designate a Series B Director (a “Designating Holder”) or any of their respective affiliates acquires knowledge of a potential transaction or matter which may be a corporate opportunity, such Series B Director, Designating Holder or affiliate shall, to the fullest extent permitted by law, have no duty (fiduciary or otherwise) or obligation to communicate or offer such corporate opportunity to the Corporation or any of its affiliates or to any other directors or stockholders of the Corporation and shall not, to the fullest extent permitted by law, be liable to the Corporation or any of its affiliates or stockholders for breach of any duty (fiduciary or otherwise) as a Series B Director or Designating Holder by reason of the fact that any Series B Director, Designating Holder or affiliate acquires, creates, develops or seeks such corporate opportunity for itself, directs such corporate opportunity to another person or entity, or otherwise does not communicate information regarding such corporate opportunity to the Corporation or its affiliates or stockholders, and the Corporation, to the fullest extent permitted by law, waives and renounces any claims that such business opportunity constituted a corporate opportunity that should have been presented to the Corporation or any of its affiliates. For purposes of this Agreement, “corporate opportunity” shall include any potential transaction, investment or business opportunity or prospective economic or competitive advantage in which the Corporation or any of its affiliates could have any expectancy or interest. The provisions of this Certificate of Designations, to the extent that they restrict the duties (including fiduciary duties) and liabilities of a director or stockholder of the Corporation otherwise existing at law or in equity or by operation of the preceding sentence, replace such duties and liabilities of such director or stockholder of the Corporation.

Section 4.Liquidation Rights.

(a)Upon any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, and including any deemed liquidation pursuant to Section 4(c) (a “Liquidation Event”), before any distribution or payment shall be made to the holders of any Junior Stock and on a pari passu basis with the holders of the Series A Preferred and any other series of Preferred Stock ranking on liquidation on parity with Series B Preferred, the holders of Series B Preferred shall be entitled to be paid out of the assets of the Corporation legally available for distribution, or the consideration received in such transaction, for each share of Series B Preferred held by them, an amount per share of Series B Preferred equal to one and one-half times (1.5x) the Original Issue Price, plus any Series B Dividends accrued but unpaid thereon, whether or not declared, together with any other dividends declared but unpaid thereon (the “Liquidation Preference”). If, upon any such Liquidation Event the assets of the Corporation shall be insufficient to make payment in full to all holders of (i) Series A Preferred of the liquidation preference in accordance with Section 3(a) of the Certificate of Designations for the Series A Preferred and (ii) Series B Preferred of the Liquidation Preference, then such assets, or the consideration received in such transaction, shall be distributed among the holders of Series A Preferred and Series B Preferred at the time outstanding, ratably in proportion to the full amounts to which they would otherwise be respectively entitled.

(b)After the payment of the full Liquidation Preference, the assets of the Corporation legally available for distribution in such Liquidation Event, or the consideration received in such transaction, shall be distributed ratably to the holders of the Junior Stock, Series A Preferred and Series B Preferred on an as-if-converted to Common Stock basis.

(c)For purposes of this Section 4, a liquidation, dissolution or winding up of the Corporation is deemed to occur in the event that the Corporation consummates an Acquisition or an Asset Transfer. An “Acquisition” shall mean (i) any transaction or series of related transactions in which there is a consolidation or merger of the Corporation with or into any other corporation or other entity or person, or any other corporate reorganization, in which the issued and outstanding capital stock of the Corporation immediately prior to such consolidation, merger or reorganization, represents less than fifty percent (50%) of the outstanding voting stock (on an as-if-converted to Common Stock basis) of the surviving entity (or, if the surviving entity is a wholly owned subsidiary, its parent) immediately after such consolidation, merger or reorganization; or (ii) any transaction or series of related transactions to which the Corporation is a party in which in excess of fifty percent (50%) of the Corporation’s outstanding voting stock (on an as-if-converted to Common Stock basis) is transferred; provided, however, that an Acquisition shall not include (x) any consolidation or merger effected exclusively to change the domicile of the Corporation or (y) any transaction or series of transactions principally for bona fide equity financing purposes in which cash is received by the Corporation or any successor or indebtedness of the Corporation is cancelled or converted or a combination thereof. An “Asset Transfer” shall mean a sale, lease, exclusive license or other disposition of all or substantially all of the assets of the Corporation or all or substantially all of the intellectual property of the Corporation in any single transaction or series of related transactions.

(d)In any Acquisition or Asset Transfer, if the consideration to be received is property other than cash or securities, its value will be deemed to be its fair market value as determined in good faith by the Board of Directors on the date such determination is made. Any securities shall be valued as follows:

(i)Securities not subject to any restrictions on free marketability:

(A)If traded on a securities exchange or through the NASDAQ National Market or Capital Market, the value shall be deemed to be the average of the closing prices of the securities on such exchange or quotation system over the thirty-day period ending three (3) days prior to the date of determination;

(B)If actively traded over-the-counter, the value shall be deemed to be the average of the closing bid or sale prices (whichever is applicable) over the thirty-day period ending three (3) days prior to the date of determination; and

(C)If there is no active public market, the value shall be the fair market value thereof, as determined in good faith by the Board of Directors.

(ii)The method of valuation of securities subject to any restrictions on free marketability (other than restrictions arising solely by virtue of a stockholder’s status as an affiliate or former affiliate) shall be to apply an appropriate discount from the market value determined as above in (i)(A), (B) or (C) to reflect the approximate fair market value thereof, as determined in good faith by the Board of Directors.

Section 5.Conversion Rights. The holders of the Series B Preferred shall have the following rights with respect to the conversion of the Series B Preferred into shares of Common Stock (the “Conversion Rights”):

(a)Optional Conversion. Subject to and in compliance with the provisions of this Section 5, each share of Series B Preferred may, at the option of the holder, be converted at any time into a number of fully paid and non-assessable shares of Common Stock equal to the quotient obtained by dividing the Original Issue Price for the Series B Preferred, plus all accrued and unpaid Series B Dividends and any other declared and unpaid dividends, by the “Series B Preferred Conversion Price” calculated as provided in Section 5(b). The “Original Issue Price” means, with respect to each share of Series B Preferred, $3.75.

(b)Series B Preferred Conversion Price. The conversion price for each share of Series B Preferred (the “Series B Preferred Conversion Price”) shall initially be $0.75. The Series B Preferred Conversion Price shall be adjusted from time to time in accordance with this Section 5. All references to the Series B Preferred Conversion Price herein shall mean the Series B Preferred Conversion Price as so adjusted.

(c)Mechanics of Conversion. Each holder of Series B Preferred who desires to convert any of its shares of Series B Preferred into Common Stock pursuant to this Section 5 shall surrender the certificate or certificates therefor, duly endorsed, at the office of the Corporation or any transfer agent for the Series B Preferred, and shall give written notice to the Corporation at such office stating the number of shares of Series B Preferred Stock being converted. Thereupon, the Corporation shall promptly issue and deliver at such office to such holder a certificate or certificates for the number of shares of Common Stock to which such holder is entitled and shall promptly pay in cash (at the Common Stock’s fair market value determined by the Board of Directors as of the date of conversion) the value of any fractional share of Common Stock otherwise issuable to such holder of the Series B Preferred being converted. Such conversion shall be deemed to have been made at the close of business on the date of such surrender of the certificates representing the shares of Series B Preferred being converted, and the person entitled to receive the shares of Common Stock issuable upon such conversion shall be treated for all purposes as the record holder of such shares of Common Stock on such date.

(d)Adjustment for Stock Splits and Combinations. If at any time or from time to time after the date that the first share of Series B Preferred is issued (the “Original Issue Date”) the Corporation effects a split or subdivision of the outstanding Common Stock, then the Series B Preferred Conversion Price in effect immediately before that split or subdivision shall be proportionately decreased. Conversely, if at any time or from time to time after the Original Issue Date the Corporation effectuates a reverse-split or combines the outstanding shares of Common Stock into a smaller number of shares, the Series B Preferred Conversion Price shall be proportionately increased. Any adjustment under this Section 5(d) shall become effective at the close of business on the date the subdivision or combination becomes effective.

(e)Adjustment for Common Stock Dividends and Distributions. If at any time or from time to time after the Original Issue Date the Corporation pays to holders of Common Stock (or securities convertible into shares of Common Stock) a dividend or other distribution payable in shares of Common Stock without a corresponding dividend or other distribution to holders of Series B Preferred, the Series B Preferred Conversion Price then in effect shall be decreased as of the time of such issuance, as provided below:

(i)The Series B Preferred Conversion Price shall be adjusted by multiplying the applicable Series B Preferred Conversion Price then in effect by a fraction:

(A)the numerator of which is the total number of shares of Common Stock issued and outstanding immediately prior to the record date fixed for such dividend or distribution, or if no record date is fixed, the date of such issuance, and

(B)the denominator of which is the total number of shares of Common Stock issued and outstanding immediately prior to the record date fixed for such dividend or distribution, or if no record date is fixed, the date of such issuance, plus the number of shares of Common Stock issued or issuable in payment of such dividend or distribution;

(ii)If the Corporation fixes a record date to determine which holders of Common Stock (or securities convertible into shares of Common Stock) are entitled to receive such dividend or other distribution, the Series B Preferred Conversion Price shall be adjusted as of the close of business on such record date; and

(iii)If such record date is fixed and such dividend is not fully paid or if such distribution is not fully made on the date fixed therefor, the Series B Preferred Conversion Price shall be recomputed accordingly as of the close of business on such record date and thereafter the Series B Preferred Conversion Price shall be adjusted pursuant to this Section 5(e) to reflect the actual payment of such dividend or distribution.

(f)Adjustment for Reclassification, Exchange, Substitution, Reorganization, Merger or Consolidation. If at any time or from time to time after the Original Issue Date, the Common Stock issuable upon the conversion of the Series B Preferred is changed into the same or a different number of shares of any class or classes of stock or right to receive other securities or property whether by merger, amendment, consolidation, reclassification, reorganization, recapitalization or otherwise (other than a subdivision or combination of shares or stock dividend provided for elsewhere in this Section 5), in any such event each share of Series B Preferred shall be convertible into the kind and amount of stock and other securities and property receivable upon such merger, amendment, consolidation, reclassification, reorganization, recapitalization or other transaction or other change in respect of a number of shares of Common Stock into which such share of Series B Preferred could have been converted immediately prior to such merger, amendment, consolidation, reclassification, reorganization, recapitalization or other transaction, all subject to further adjustment as provided herein or with respect to such other securities or property by the terms thereof. In any such case, appropriate adjustment shall be made in the application of the provisions of this Section 5 with respect to the rights of the holders of Series B Preferred after the capital reorganization to the end that the provisions of this Section 5 (including adjustment of the Series B Preferred Conversion Price then in effect and the number of shares issuable upon conversion of the Series B Preferred) shall be applicable after that event and be as nearly equivalent as practicable.

(g)Sale of Shares Below Series B Preferred Conversion Price.

(i)If at any time or from time to time after the Original Issue Date, the Corporation issues or sells, or is deemed by the express provisions of this Section 5(g) to have issued or sold, Additional Shares of Common Stock (as defined below), other than as provided in Sections 5(d), 5(e) or 5(f), for an Effective Price (as defined below) less than the then effective Series B Preferred Conversion Price (a “Qualifying Dilutive Issuance”), then and in each such case the Series B Preferred Conversion Price shall be reduced, as of the opening of business on the date immediately after such issue or sale, (x) in the event such date occurs within twenty-four (24) months following the Original Issue Date, to a price equal to the Effective Price and (y) in the event such date occurs after twenty-four (24) months following the Original Issue Date, to a price determined by multiplying the Series B Preferred Conversion Price in effect immediately prior to such issuance or sale by a fraction:

(A)the numerator of which shall be (x) the number of shares of Common Stock deemed outstanding (as determined below) immediately prior to such issue or sale, plus (y) the number of shares of Common Stock which the Aggregate Consideration (as defined below) received or deemed received by the Corporation for the total number of Additional Shares of Common Stock so issued or sold would purchase at the then existing Series B Preferred Conversion Price (prior to such adjustment), and

(B)the denominator of which shall be the number of shares of Common Stock deemed outstanding (as determined below) immediately prior to such issue or sale plus the total number of Additional Shares of Common Stock so issued or sold.

For the purposes of the preceding sentence, the number of shares of Common Stock deemed to be outstanding as of a given date shall be the sum of (x) the number of shares of Common Stock outstanding and (y) the number of shares of Common Stock into which the then outstanding shares of Series B Preferred could be converted if fully converted on the day immediately preceding the given date.

(ii)No adjustment shall be made to the Series B Preferred Conversion Price for a reduction thereof in an amount less than one cent per share. Any adjustment otherwise required by this Section 5(g) that is not required to be made due to the preceding sentence shall be included in any subsequent adjustment to the Series B Preferred Conversion Price.

(iii)For the purpose of making any adjustment required under this Section 5(g), the aggregate consideration received by the Corporation for any issue or sale of Additional Shares of Common Stock (the “Aggregate Consideration”) shall be defined as: (A) to the extent it consists of cash, the amount of cash received by the Corporation before deduction of any underwriting or similar commissions, compensation or concessions paid or allowed by the Corporation in connection with such issue or sale and without deduction of any expenses payable by the Corporation in connection with such issue or sale, (B) to the extent it consists of property other than cash, the fair value of that property as determined in good faith by the Board of Directors (irrespective of accounting treatment), and (C) if Additional Shares of Common Stock, Convertible Securities (as defined below) or rights or options to purchase either Additional Shares of Common Stock or Convertible Securities are issued or sold together with other stock or securities or other assets of the Corporation for a consideration which covers both, the portion of the consideration so received that may be reasonably determined in good faith by the Board of Directors to be allocable to such Additional Shares of Common Stock, Convertible Securities or rights or options.

(iv)For the purpose of the adjustment required under this Section 5(g), if the Corporation issues or sells (x) Preferred Stock or other stock, options, warrants, purchase rights or other securities convertible into Additional Shares of Common Stock (such convertible stock or instruments being herein referred to as “Convertible Securities”) or (y) rights or options for the purchase of Additional Shares of Common Stock or Convertible Securities and if the Effective Price (defined below) of such Additional Shares of Common Stock is less than the then effective Series B Preferred Conversion Price, in each case the Corporation shall be deemed to have issued at the time of the issuance of such rights or options or Convertible Securities the maximum number of Additional Shares of Common Stock issuable upon exercise or conversion in full thereof and to have received as consideration for the issuance of such shares an amount equal to the total amount of the consideration, if any, received by the Corporation for the issuance of such rights or options or Convertible Securities plus:

(A)in the case of such rights or options, the minimum amount of consideration, if any, payable to the Corporation upon the exercise of such rights or options; and

(B)in the case of Convertible Securities, the minimum amount of consideration, if any, payable to the Corporation upon the conversion thereof (other than by cancellation of liabilities or obligations evidenced by such Convertible Securities); provided, however, that if the minimum amount of such consideration cannot be ascertained, but are a function of antidilution or similar protective clauses, the Corporation shall be deemed to have received the minimum amount of consideration without reference to such clauses.

If the minimum amount of consideration payable to the Corporation upon the exercise or conversion of rights, options or Convertible Securities is reduced over time or on the occurrence or non-occurrence of specified events other than by reason of antidilution adjustments, the Effective Price shall be recalculated using the decreased minimum amount of consideration; provided further, however, that if the minimum amount of consideration payable to the Corporation upon the exercise or conversion of such rights, options or Convertible Securities is subsequently increased (other than by reason of antidilution adjustments), the Effective Price shall be also recalculated using the increased minimum amount of consideration.

No further adjustment of the Series B Preferred Conversion Price, as adjusted upon the issuance of such rights, options or Convertible Securities, shall be made as a result of the actual issuance of Additional Shares of Common Stock or the exercise of any such rights or options or the conversion of any such Convertible Securities. If any such rights or options or the conversion privilege represented by any such Convertible Securities shall expire or terminate without having been exercised, the then effective Series B Preferred Conversion Price, which was adjusted upon the issuance of such rights, options or Convertible Securities, shall be readjusted on the basis of the Additional Shares of Common Stock, if any, actually issued or sold on the exercise of such rights or options or rights of conversion of such Convertible Securities, the consideration actually received by the Corporation upon such exercise (other than by cancellation of liabilities or obligations evidenced by such Convertible Securities) and the consideration, if any, actually received by the Corporation upon the original issuance of all such rights or options or Convertible Securities, whether or not exercised; provided, however, that such readjustment shall not apply to prior conversions of Series B Preferred.

(v)For the purpose of making any adjustment to the Series B Preferred Conversion Price required under this Section 5(g), “Additional Shares of Common Stock” shall mean all shares of Common Stock issued by the Corporation or deemed to be issued pursuant to this Section 5(g) (including shares of Common Stock subsequently reacquired or retired by the Corporation), other than:

(A)shares of Common Stock issued upon conversion of shares of Series A Preferred or Series B Preferred or exercise of any other Convertible Securities (including the warrants issued by the Corporation in connection with the initial issuance of the Series B Preferred) outstanding as of the Original Issue Date;

(B)the payment of dividends on the Series A Preferred in additional shares of Series A Preferred in accordance with the terms of the Certificate of Designations for the Series A Preferred;

(C)the shares of Common Stock (or options thereon) issued after the Original Issue Date to employees, officers or directors of, or consultants or advisors to the Corporation or any subsidiary pursuant to the Existing Option Plan and any other Plans approved by the Series B Preferred in accordance with clause (xi) of Section 3(b) and the Board of Directors (together with the Existing Option Plan, the “Approved Option Plans”); provided, however, that any such issuances are approved by the Board of Directors;

(D)shares of Common Stock or Convertible Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement or debt financing from a bank or similar financial institution approved by the Board of Directors;

(E)shares of Common Stock or Convertible Securities issued in connection with bona fide acquisitions, mergers or similar transactions, the terms of which are approved by the Board of Directors; and

(F)shares of Common Stock or Convertible Securities issued to any person as a component of any business relationship with such person primarily for (x) joint venture, technology licensing or development activities purposes, (y) purposes of distribution, supply or manufacture of the Corporation’s products or services or (z) any purposes other than raising capital, the terms of which are approved by the Board of Directors.

References to Common Stock in the subsections of this clause (v) above shall mean all shares of Common Stock issued by the Corporation or deemed to be issued pursuant to this Section 5(g).

(vi)The “Effective Price” of Additional Shares of Common Stock shall mean the quotient determined by dividing the total number of Additional Shares of Common Stock issued or sold, or deemed to have been issued or sold by the Corporation under this Section 5(g), into the Aggregate Consideration received, or deemed to have been received, by the Corporation for such issue under this Section 5(g), for such Additional Shares of Common Stock. In the event that the number of Additional Shares of Common Stock or the Effective Price cannot be ascertained at the time of issuance, such Additional Shares of Common Stock shall be deemed issued immediately upon the occurrence of the first event that makes such number of shares or the Effective Price, as applicable, determinable.

(vii)In the event that the Corporation issues or sells, or is deemed to have issued or sold, Additional Shares of Common Stock in a Qualifying Dilutive Issuance (the “First Dilutive Issuance”), and then issues or sells, or is deemed to have issued or sold, Additional Shares of Common Stock in additional Qualifying Dilutive Issuances as a part of the same transaction or series of related transactions as the First Dilutive Issuance (a “Subsequent Dilutive Issuance”), then and in each such case upon a Subsequent Dilutive Issuance the Series B Preferred Conversion Price shall be reduced to the Series B Preferred Conversion Price that would have been in effect had the First Dilutive Issuance and each Subsequent Dilutive Issuance all occurred on the closing date of the First Dilutive Issuance.

(h)Certificate of Adjustment. In each case of an adjustment or readjustment of the Series B Preferred Conversion Price, the Corporation, at its expense, shall compute such adjustment or readjustment in accordance with the provisions hereof, prepare a certificate showing such adjustment or readjustment, and mail such certificate, by first class mail, postage prepaid, to each registered holder of Series B Preferred, at the holder’s address as shown in the Corporation’s books. The certificate shall set forth such adjustment or readjustment, showing in detail the facts upon which such adjustment or readjustment is based, including a statement, as applicable, of (i) the Aggregate Consideration and Effective Price received or deemed to be received by the Corporation for any Additional Shares of Common Stock issued or sold or deemed to have been issued or sold, (ii) the Series B Preferred Conversion Price at the time in effect and as adjusted, (iii) the number of shares of Common Stock deemed to be outstanding for purposes of such calculations and of Additional Shares of Common Stock and (iv) the type and amount, if any, of other property which at the time would be received upon conversion of the Series B Preferred.

(i)Notices of Record Date. Upon (i) any taking by the Corporation of a record of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend or other distribution, or (ii) any Acquisition or other capital reorganization of the Corporation, any reclassification or recapitalization of the capital stock of the Corporation, any merger or consolidation of the Corporation with or into any other corporation, any Asset Transfer or any other Liquidation Event, the Corporation shall mail to each holder of Series B Preferred at least ten (10) days prior to the record date specified therein (or such shorter period approved by the holders of a majorityof the outstanding Series B Preferred) a notice specifying (A) the date on which any such record is to be taken for the purpose of such dividend or distribution and a description of such dividend or distribution, (B) the date on which any such Acquisition, reorganization, reclassification, transfer, consolidation, merger, Asset Transfer or other Liquidation Event is expected to become effective, and (C) the date, if any, that is to be fixed as to when the holders of record of Common Stock (or other securities) shall be entitled to exchange their shares of Common Stock (or other securities) for securities or other property deliverable upon such Acquisition, reorganization, reclassification, transfer, consolidation, merger, Asset Transfer or other Liquidation Event.

(j)Automatic Conversion.

(i)Each share of Series B Preferred shall automatically be converted into shares of Common Stock, based on the then effective Series B Preferred Conversion Price, (A) at any time upon the affirmative election of the holders of more than 50%of the outstanding shares of the Series B Preferred (the “Requisite Consent to Automatically Convert”) or (B) substantially concurrently with the closing of a bona fide public offering, pursuant to an effective registration statement under the Securities Act of 1933, as amended, covering the offer and sale of Common Stock for the account of the Corporation, by a reputable investment bank on a firm-commitment underwriting basis in which (x) the price per share of Common Stock is at least five times (5x) the then applicable Series B Preferred Conversion Price, and (y) the gross cash proceeds to the Corporation (before underwriting discounts, commissions and fees) are $75,000,000 or more (or such other amount as approved by the Board of Directors, including at least one Series B Director, if any are on the Board of Directors at such time), and following which offering the Common Stock is listed on the New York Stock Exchange or admitted to quotation on NASDAQ (or such other appropriate securities exchange as approved by the Board of Directors, including at least one Series B Director, if any are on the Board of Directors at such time) (a “Qualified IPO”).

(ii)Effective upon the earlier of (A) the date specified by the holders providing such Requisite Consent to Automatically Convert, or (B) the closing of a Qualified IPO, the outstanding shares of Series B Preferred shall be converted automatically without any further action by the holders of such shares and whether or not the certificates representing such shares are surrendered to the Corporation or its transfer agent; provided, however, that the Corporation shall not be obligated to issue certificates evidencing the shares of Common Stock issuable upon such conversion unless the certificates evidencing such shares of Series B Preferred are either delivered to the Corporation or its transfer agent as provided below, or the holder notifies the Corporation or its transfer agent that such certificates have been lost, stolen or destroyed and executes an agreement reasonably satisfactory to the Corporation to indemnify the Corporation from any loss incurred by it in connection with such certificates. Upon the occurrence of such automatic conversion of the Series B Preferred, the holders of Series B Preferred shall surrender the certificates representing such shares at the office of the Corporation or any transfer agent for the Series B Preferred. Thereupon, there shall be issued and delivered to such holder promptly at such office and in its name as shown on such surrendered certificate or certificates, a certificate or certificates for the number of shares of Common Stock into which the shares of Series B Preferred surrendered were convertible on the date on which such automatic conversion occurred, and any Series B Dividends that are accrued but unpaid, whether or not declared, and any other declared and unpaid dividends shall be paid in accordance with the provisions of Section 5(c).

(k)Fractional Shares. No fractional shares of Common Stock shall be issued upon conversion of Series B Preferred. All shares of Common Stock (including fractions thereof) issuable upon conversion of more than one share of Series B Preferred by a holder thereof shall be aggregated for purposes of determining whether the conversion would result in the issuance of any fractional share. If, after the aforementioned aggregation, the conversion would result in the issuance of any fractional share, the Corporation shall, in lieu of issuing any fractional share, pay cash equal to the product of such fraction multiplied by the fair market value of one share of Common Stock (as determined by the Board of Directors) on the date of conversion.

(l)Reservation of Stock Issuable Upon Conversion. The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of the shares of the Series B Preferred, such number of its shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of the Series B Preferred. If at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of the Series B Preferred, the Corporation will take such corporate action as may be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purpose.

(m)Notices. Any notice required by the provisions of this Section 5 shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the party to be notified, (ii) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient; if not, then on the next business day, (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with verification of receipt. All notices shall be addressed to each holder of record at the address of such holder appearing on the books of the Corporation.

(n)Payment of Taxes. The Corporation will pay all taxes (other than taxes based upon income) and other governmental charges that may be imposed with respect to the issue or delivery of shares of Common Stock upon conversion of shares of Series B Preferred, excluding any tax or other charge imposed in connection with any transfer involved in the issue and delivery of shares of Common Stock in a name other than that in which the shares of Series B Preferred so converted were registered.

Section 6.Redemption.

(a)At any time after the fifth (5^th) anniversary of the Original Issue Date, upon the affirmative election of the holders of more than 50%of the outstanding shares of the Series B Preferred, the Corporation shall redeem, out of funds legally available therefor, all outstanding shares of Series B Preferred, within thirty (30) days after receipt by the Corporation of a written notice of redemption from such holders, by paying in cash an amount per share equal to the greater of (i) the Fair Market Value (as defined below) and (ii) Liquidation Preference (such date, the “Redemption Date” and such price, the “Redemption Price”). If the funds legally available for redemption of the Series B Preferred are insufficient to permit the payment in full of the Redemption Price in redeeming of all outstanding Series B Preferred, then such funds shall be used to redeem the maximum possible number of such shares, allocated ratably among the holders of such shares based upon their holdings of Series B Preferred. Any shares of Series B Preferred not redeemed pursuant to this Section 6 shall remain outstanding and entitled to all the rights and preferences provided herein and shall be redeemed immediately when additional funds of the Corporation become legally available for redemption of Series B Preferred.

(b)“Fair Market Value” means the price determined in accordance with the procedures set forth below:

(i) Within five (5) business days of an affirmative election of the holders of more than 50% of the outstanding shares of Series B Preferred to cause the Corporation to redeem all outstanding shares of Series B Preferred pursuant to Section 6, such holders, collectively, shall first appoint, and the Corporation shall then appoint (the date of the first such appointment being the “Appointment Date”), a nationally recognized investment-banking firm (each an “Appointed Bank”). The Appointed Banks shall jointly appoint a third nationally recognized investment-banking firm (together with the Appointed Banks, the “Investment Banks”).

(ii)Each of the Appointed Banks shall separately determine its estimate of the Fair Market Value of the Series B Preferred as follows and based on the customary methodologies that such Investment Banks in their professional experience deem relevant to such a determination:

(A) it shall first determine the fair market value of the Corporation (the “Corporation FMV”); and

(B)it shall thereafter determine the fair market value, on a per share basis, of the equity interest in the Corporation represented by the Series B Preferred, based on the Corporation FMV, not taking into account the number of voting rights attached to the Series B Preferred, minority discounts or transfer or other restrictions or shareholder arrangements in respect of the Series B Preferred.

(iii)Each of the Appointed Banks shall conduct its determination of Fair Market Value on a strictly confidential and independent basis and no Appointed Bank shall be permitted to communicate, discuss or review with the other Appointed Bank or the third Investment Bank its own determination or share any information relating thereto.

(iv)Each of the Appointed Banks shall present its final determination of Fair Market Value to the parties no later than twenty (20) business days after the Appointment Date by simultaneously presenting to the holders of the Series B Preferred and the Corporation, in a sealed envelope at a time and place to be mutually agreed by the holders of the Series B Preferred and the Corporation, its determination of Fair Market Value and at such meeting the two envelopes from the Appointed Banks respectively shall be opened.

(v)In the event the Fair Market Value estimates determined by the two Appointed Banks are within 15% of the higher of the two estimates, the Fair Market Value shall be the average of the two estimates and such determination of Fair Market Value shall be final and binding on the holders of the Series B Preferred and the Corporation.

(vi)In the event the Fair Market Value estimates determined by the two Appointed Banks are not within 15% of the higher of the two estimates, the sealed envelope from the third Investment Bank shall also be opened at such meeting. The two Fair Market Value estimates that are the closest shall be kept and the estimate that is furthest from the others shall be discarded and the Fair Market Value for the Series B Preferred shall be the average of the two remaining estimates and such determination of Fair Market Value shall be final and binding on the holders of the Series B Preferred and the Corporation.

(vii)The holders of the Series B Preferred, as a group, and the Corporation shall each be responsible for the fees and expenses of the Appointed Bank selected by them and for 50% of the fees and expenses of the third Investment Bank. The holders of the Series B Preferred, if more than one, shall share in their portion of such fees pro rata to the number of shares of Series B Preferred being redeemed from them.

(c)At least ten (10), but no more than twenty (20), days prior to the Redemption Date, written notice shall be mailed, first class postage prepaid, to each holder of record (at the close of business on the business day next preceding the day on which notice is given) of the Series B Preferred, at the address last shown on the records of the Corporation for such holder, notifying such holder of the redemption to be effected, specifying the number of shares to be redeemed from such holder, the Redemption Date, the Redemption Price, the place at which payment may be obtained and calling upon such holder to surrender to the Corporation, in the manner and at the place designated, the holder’s certificate or certificates representing the shares to be redeemed (the “Redemption Notice”). Except as provided herein, on or after the Redemption Date each holder of Series B Preferred shall surrender to the Corporation the certificate or certificates representing such shares, free and clear of all liens, in the manner and at the place designated in the Redemption Notice, and thereupon the Redemption Price for such shares shall be payable to the order of the person whose name appears on such certificate or certificates as the owner thereof and each surrendered certificate shall be cancelled. In the event less than all the shares represented by any such certificate are redeemed, a new certificate shall be issued representing the unredeemed shares.

(d)From and after the Redemption Date, unless there shall have been a default in payment of the Redemption Price, all rights in respect of the Series B Preferred that are redeemed under this Section 6 (except the right to receive the Redemption Price without interest upon surrender of the certificate or certificates therefor) shall cease, and such shares shall not thereafter be transferred on the books of the Corporation or be deemed to be outstanding for any purpose whatsoever.