PLANET TECHNOLOGIES, INC. SERIES B PREFERRED STOCK PURCHASE AGREEMENT

AISLING CAPITAL II, LP

EXHIBIT 10.32

PLANET TECHNOLOGIES, INC.

SERIES B PREFERRED

STOCK PURCHASE AGREEMENT

TABLE OF CONTENTS


			Page

1.	Purchase and Sale of Series B Preferred Stock			1
	1.1.	Sale and Issuance of Series B Preferred Stock		1
	1.2.	Closing; Delivery		1
	1.3.	Use of Proceeds		2
	1.4.	Defined Terms Used in this Agreement		2
2.	Representations and Warranties of the Company			5
	2.1.	Organization, Good Standing, Corporate Power and Qualification		5
	2.2.	Capitalization		5
	2.3.	Subsidiaries		7
	2.4.	Authorization		7
	2.5.	Valid Issuance of Shares		8
	2.6.	Governmental Consents and Filings		8
	2.7.	Litigation; Product Liability		8
	2.8.	Intellectual Property		9
	2.9.	Compliance with Laws; Other Instruments		10
	2.10.	Agreements; Actions		10
	2.11.	Certain Transactions		11
	2.12.	Rights of Registration and Voting Rights		12
	2.13.	Assets; Absence of Liens		12
	2.14.	Financial Statements		12
	2.15.	Changes		13
	2.16.	Employee Matters		14
	2.17.	Tax Returns and Payments		16
	2.18.	Insurance		17
	2.19.	Confidential Information and Invention Assignment Agreements		17
	2.20.	Permits		17
	2.21.	Corporate Documents		17
	2.22.	Environmental and Safety Laws		17
	2.23.	Commission Reports; Financial Statements		18
	2.24.	Customers and Suppliers		18
	2.25.	Antigen SPA; Antigen Financial Statements		18
	2.26.	Disclosure		19
	2.27.	Reincorporation/Merger		19

TABLE OF CONTENTS
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			Page

3.	Representations and Warranties of the Purchasers			19
	3.1.	Authorization		19
	3.2.	Purchase Entirely for Own Account		20
	3.3.	Disclosure of Information		20
	3.4.	Restricted Securities		20
	3.5.	No Public Market		20
	3.6.	Legends		21
	3.7.	Accredited Investor		21
	3.8.	No General Solicitation		21
	3.9.	Exculpation Among Purchasers		21
4.	Conditions to the Purchasers’ Obligations at Closing			21
	4.1.	Representations and Warranties		21
	4.2.	Performance		21
	4.3.	Compliance Certificate		22
	4.4.	Qualifications		22
	4.5.	Opinion of Company Counsel		22
	4.6.	Board of Directors		22
	4.7.	Indemnification Agreement		22
	4.8.	Investors’ Rights Agreement		22
	4.9.	Right of First Refusal and Co-Sale Agreement		22
	4.10.	Voting Agreement		22
	4.11.	Certificate of Determination		22
	4.12.	Secretary’s Certificate		22
	4.13.	Consulting Agreement		23
	4.14.	Employment Agreement		23
	4.15.	Proceedings and Documents		23
	4.16.	De-Registration		23
	4.17.	Operating Budget		23
	4.18.	Review of Antigen Financial Statements
	4.19.	Acquisition of Antigen		23
	4.20.	FDA Matters		23
	4.21.	Consents		23
	4.22.	Material Adverse Change		23
	4.23.	Management Rights		23
	4.24.	▇▇▇▇▇▇▇▇▇▇ Subscription

TABLE OF CONTENTS
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			Page

	4.25.	Employment Agreement Amendments		23
5.	Conditions of the Company’s Obligations at Closing			24
	5.1.	Delivery of the Purchase Price		24
	5.2.	Representations and Warranties		24
	5.3.	Performance		24
	5.4.	Qualifications		24
	5.5.	Investors’ Rights Agreement		24
	5.6.	Right of First Refusal and Co-Sale Agreement		24
	5.7.	Voting Agreement		24
6.	Miscellaneous			24
	6.1.	Reincorporation		24
	6.2.	Survival of Warranties		24
	6.3.	Successors and Assigns		25
	6.4.	Governing Law		25
	6.5.	Counterparts; Facsimile		25
	6.6.	Titles and Subtitles		25
	6.7.	Notices		25
	6.8.	No Finder’s Fees		25
	6.9.	Fees and Expenses		26
	6.10.	Attorneys’ Fees		26
	6.11.	Amendments and Waivers		26
	6.12.	Severability		26
	6.14.	Delays or Omissions		26
	6.14.	Entire Agreement		26
	6.15.	Dispute Resolution		27
	6.16.	No Commitment for Additional Financing		27

iii

TABLE OF CONTENTS
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EXHIBITS


Exhibit A -		SCHEDULE OF PURCHASERS

Exhibit B -		CERTIFICATE OF DETERMINATION FOR SERIES B PREFERRED STOCK

Exhibit C -		AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

Exhibit D -		FORM OF INDEMNIFICATION AGREEMENT

Exhibit E -		FORM OF INVESTORS’ RIGHTS AGREEMENT

Exhibit F -		FORM OF MANAGEMENT RIGHTS LETTER

Exhibit G -		FORM OF RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT

Exhibit H -		FORM OF VOTING AGREEMENT

Exhibit I -		DISCLOSURE SCHEDULES

Exhibit J -		FORM OF LEGAL OPINION OF ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & FRENCH

SERIES B PREFERRED STOCK PURCHASE AGREEMENT

This SERIES B PREFERRED STOCK PURCHASE AGREEMENT is made as of the [ ]^th day of November, 2007 by and among Planet Technologies, Inc., a California corporation (including its predecessors, successors and assigns, the “Company”), and the investors listed on Exhibit A attached to this Agreement (each a “Purchaser” and together the “Purchasers”).

The parties hereby agree as follows:

1. Purchase and Sale of Series B Preferred Stock.

1.1. Sale and Issuance of Series B Preferred Stock.

(a) The Company shall adopt and file with the Secretary of State of the State of California on or before the Closing (as defined below) the Certificate of Determination for Series B Preferred Stock in the form of Exhibit B attached to this Agreement (the “Certificate of Determination”).

(b) Subject to the terms and conditions of this Agreement, the Purchasers agree, severally and not jointly, to purchase at the Closing and the Company agrees to sell and issue to the Purchasers at the Closing that number of shares of Series B Preferred Stock, no par value per share (the “Series B Preferred Stock”), set forth opposite the Purchasers’ name on Exhibit A, at a purchase price of $6.00 per share. The shares of Series B Preferred Stock issued to the Purchasers pursuant to this Agreement (including any shares issued at the Closing) shall be referred to in this Agreement as the “Shares.”

1.2. Closing; Delivery.

(a) The purchase and sale of the Shares shall take place remotely via the exchange of documents and signatures, on the date first written above, or at such other time and place as the Company and the Purchasers mutually agree upon in writing (which time and place are designated as the “Closing”).

(b) At the Closing, the Company shall deliver to each Purchaser a certificate representing the Shares being purchased by such Purchaser at such Closing against payment of the purchase price therefor, by wire transfer to a bank account designated by the Company, and solely with respect to Windamere III, LLC, a Delaware limited liability company (“Windamere”), by cancellation or conversion of indebtedness of the Company to Windamere of (i) that certain Unsecured Promissory Note, dated June 1, 2006, in a principal amount of $250,000 and (ii) that certain Unsecured Promissory Note, dated August 7, 2006, in a principal amount of $250,000.

(c) At the Closing, up to $50,000 (in the aggregate) of accrued and unpaid interest owed by the Company to Windamere pursuant to the notes referred to in Section 1.2(b) from the date of issuance through the Closing shall be paid in cash at Closing (and any and all interest amounts in excess of $50,000 shall be forgiven by Windamere, as evidenced by Windamere’s execution of this Agreement).

1.3. Use of Proceeds. In accordance with the directions of the Board of Directors of the Company (the “Board of Directors”), the Company will use the proceeds from the sale of the Shares for the acquisition of Antigen and the real property used by Antigen and adjacent to its premises, the clinical development of immunotherapy in the United States, in connection with the de-registration of the Company’s securities from the OTC Bulletin Board, and for general working capital purposes.

1.4 Defined Terms Used in this Agreement. In addition to the terms defined above, the following terms used in this Agreement shall be construed to have the meanings set forth or referenced below.

“Affiliate” means, with respect to any specified Person, any other Person who, directly or indirectly, controls, is controlled by, or is under common control with such Person, including, without limitation, any general partner, managing member, officer or director of such Person or any venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the same management company with, such Person.

“Amended and Restated Certificate of Incorporation” means that certain Amended and Restated Certificate of Incorporation of the Delaware successor to the Company attached hereto as Exhibit C.

“Antigen” means Antigen Laboratories, Inc., a Missouri corporation.

“Antigen SPA” means, that certain Stock Purchase Agreement, dated September 3, 2007, by and among the Company, Antigen and the other parties named therein, as amended November ___, 2007, including each of the documents delivered thereunder or otherwise contemplated thereby, or each of the documents delivered at the closing of the transactions contemplated thereby by any of the parties thereto (or any of their Affiliates) to any other party thereto (or any of their Affiliates).

“Articles” means, the Articles of Incorporation of the Company as in effect on the date hereof, and as amended from time to time.

“Business Benefit Plan” means any “employee benefit plan” (within the meaning of Section 3(3) of ERISA including, without limitation, multiemployer plans within the meaning of Section 3(37)) and any stock purchase, stock option, severance, employment, change-in-control, fringe benefit, collective bargaining, bonus, incentive, deferred compensation, employee loan and all other agreements, plans, programs, policies providing compensation to, or for the benefit of, the Business Employees, whether or not subject to ERISA, under which any Business Employee has any present or future right to benefits and which are contributed to, sponsored by or maintained by a member of the Company or any Subsidiary.

“Business Employee” means any current or former employee, director or consultant of the Company or any Subsidiary.

“Charter” means the Articles, including the Certificate of Determination, and By-Laws of the Company, in each case as in effect on the date hereof and as amended from time to time, and from and after the reincorporation of the Company in Delaware and adoption of that certain Amended and Restated Certificate of Incorporation, in accordance with this Agreement, the Amended and Restated Certificate of Incorporation and By-Laws of the Company (as reincorporated in Delaware).

“Code” means the Internal Revenue Code of 1986, as amended.

“Company Intellectual Property” means all patents, patent applications, trademarks, trademark applications, service marks, tradenames, copyrights, trade secrets, licenses, domain names, mask works, information and proprietary rights and processes as are necessary to the conduct of the business of the Company and each of its Subsidiaries as now conducted and as presently proposed to be conducted.

“Commission” means the Securities and Exchange Commission.

“Environmental Laws” means any law, regulation, or other applicable requirement relating to (a) releases or threatened release of Hazardous Substance; (b) pollution or protection of employee health or safety, public health or the environment; or (c) the manufacture, handling, transport, use, treatment, storage, or disposal of Hazardous Substances.

“EPA” means the United States Environmental Protection Agency, or any successor Governmental Authority in the United States.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

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

“FDA” means the United States Food and Drug Administration, or any successor Governmental Authority in the United States.

“Governmental Authority” means any federal, state or local, or foreign, government, court, tribunal, regulatory or administrative agency or commission or other governmental authority, agency or instrumentality.

“Indemnification Agreement” means the agreement between the Company and each director designated by a Purchaser, dated as of the date of the Closing, in the form of Exhibit D attached to this Agreement.

“Investors’ Rights Agreement” means the agreement among the Company and the Purchasers and certain other stockholders of the Company dated as of the date of the Closing, in the form of Exhibit E attached to this Agreement.

“Key Employee” means any executive-level employee (including division director and vice president-level positions) of the Company or any Subsidiary, as well as any employee or consultant of the Company or any Subsidiary who either alone or in concert with others develops, invents, programs or designs any Company Intellectual Property.

“Knowledge,” including the phrase “to the Company’s knowledge,” shall mean the actual knowledge of any executive officer of the Company and/or any Subsidiary after reasonable investigation.

“Management Rights Letter” means the agreement between the Company and Purchaser, dated as of the date of the Closing, in the form of Exhibit F attached to this Agreement.

“Material Adverse Effect” means a material adverse effect on the business, assets (including intangible assets), liabilities, financial condition, property, prospects or results of operations of the Company and its Subsidiaries.

“Person” means any individual, corporation, partnership, trust, limited liability company, association or other entity.

“Products” means any and all products and services manufactured, sold, marketed, distributed or otherwise put in commerce by (or on behalf of) the Company or any of its Subsidiaries.

“Product Warranties” means any written Product warranties, guarantees and/or promises given by the Company or any of its Subsidiaries that are currently in effect with respect to their Products.

“Right of First Refusal and Co-Sale Agreement” means the agreement among the Company, the Purchasers, and certain other stockholders of the Company, dated as of the date of the Closing, in the form of Exhibit G attached to this Agreement.

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

“Stock Option Plans” means the Company’s 2000 Stock Incentive Plan and the Company’s 1995 Stock Option Plan.

“Subsidiaries” means any and all corporations, partnerships, limited liability companies, joint ventures, associations and other entities controlled by the Company directly or indirectly through one or more intermediaries.

“Transaction Agreements” means this Agreement, the Investors’ Rights Agreement, the Management Rights Letter, Indemnification Agreement, the Right of First Refusal and Co-Sale Agreement and the Voting Agreement.

“Voting Agreement” means the agreement among the Company, the Purchasers and certain other stockholders of the Company, dated as of the date of the Closing, in the form of Exhibit H attached to this Agreement.

“$” means the United States dollar.

2. Representations and Warranties of the Company. The Company hereby represents and warrants to each Purchaser that, except as set forth on the Disclosure Schedule attached as Exhibit I to this Agreement, which exceptions shall be deemed to be part of the representations and warranties made hereunder, the following representations are true and complete as of the date of the Closing, except as otherwise indicated. The Disclosure Schedule shall be arranged in sections corresponding to the numbered and lettered sections and subsections contained in this Section 2, and the disclosures in any section or subsection of the Disclosure Schedule shall qualify other sections and subsections in this Section 2 only to the extent it is readily apparent from a reading of the disclosure that such disclosure is applicable to such other sections and subsections (provided that in no event shall a list of agreements or contracts be deemed to modify any other section or subsection of the Disclosure Schedule absent a specific cross reference).

For purposes of these representations and warranties (other than those in Sections 2.2, 2.3, 2.4, 2.5, 2.6 and 2.26), the term “the Company” shall include any Subsidiaries of the Company, unless otherwise noted herein.

2.1. Organization, Good Standing, Corporate Power and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of California and has all requisite corporate power and authority to carry on its business as presently conducted and as proposed to be conducted. The Company is duly qualified to transact business and is in good standing in each jurisdiction where the character of its business makes such qualification and good standing necessary.

2.2. Capitalization. The authorized capital of the Company consists, immediately prior to the Closing of:

(a) 20,000,000 shares of common stock, no par value per share (the “Common Stock”), 3,968,368 shares of which are issued and outstanding immediately prior to the Closing. All of the outstanding shares of Common Stock have been duly authorized, are fully paid and nonassessable and were issued in compliance with all applicable foreign, federal and state securities laws. The Company holds no treasury stock and no shares of Series B Preferred Stock in its treasury.

(b) 5,000,000 shares of preferred stock, no par value per share, none of which are issued and outstanding immediately prior to the Closing. The rights, privileges and preferences of the Preferred Stock are as stated in the Certificate of Determination and as provided by the general corporation law of the jurisdiction of the Company’s incorporation.

(c) At the Closing, there will be reserved and available for issuance up to 693,613 shares of Common Stock available to be issued upon the exercise of Options outstanding as of the date hereof, and up to 1,000,000 shares of Common Stock available to be issued upon exercise of options subsequently issued to employees or directors of, consultants and advisors to, the Corporation or any of its subsidiaries pursuant to a plan, agreement or arrangement approved by the Board of Directors of the Corporation, including at least one of ▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇, or their successors approved or elected by a majority of the holders of the Series B Preferred Stock. As of the Closing, no shares have been issued pursuant to restricted stock purchase agreements and options to purchase 693,613 shares have been granted and are currently outstanding. The Company has furnished to the Purchasers complete and accurate copies of the Stock Option Plans and forms of agreements used thereunder.

(d) Section 2.2(d) of the Disclosure Schedule sets forth the capitalization of the Company immediately following the Closing including the number of shares of the following: (i) issued and outstanding Common Stock, including, with respect to restricted Common Stock, vesting schedule and repurchase price; (ii) issued stock options, including vesting schedule and exercise price; (iii) stock options not yet issued but reserved for issuance; (iv) each series of Preferred Stock; and (v) warrants or stock purchase rights, if any. Except for (A) the conversion privileges of the Shares to be issued under this Agreement, (B) the rights provided in the Investors’ Rights Agreement and the Right of First Refusal and Co-Sale Agreement, and (C) the securities and rights described in Section 2.2(c) of this Agreement and Section 2.2(d) of the Disclosure Schedule, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Common Stock or Series B Preferred Stock, or any securities convertible into or exchangeable for shares of Common Stock or Series B Preferred Stock. Except as provided in Section 2.2(d) of the Disclosure Schedule, all outstanding shares of the Company’s Common Stock and all shares of the Company’s Common Stock underlying outstanding options are subject to (i) a right of first refusal in favor of the Company upon any proposed transfer (other than transfers for estate planning purposes); and (ii) a lock-up or market standoff agreement of not less than 180 days following the Company’s initial public offering pursuant to a registration statement filed with the Commission under the Securities Act.

(e) None of the Company’s stock purchase agreements or stock option documents contains a provision for acceleration of vesting (or lapse of a repurchase right) or other changes in the vesting provisions or other terms of such agreement or understanding upon the occurrence of any event or combination of events. The Company has never adjusted or amended the exercise price of any stock options previously awarded, whether through amendment, cancellation, replacement grant, repricing, or any other means. Except as set forth in the Certificate of Determination, the Company has no obligation (contingent or otherwise) to purchase or redeem any of its capital stock.

2.3. Subsidiaries. Section 2.3 of the Disclosure Schedule sets forth a true and complete list of all Subsidiaries, listing for each Subsidiary its name, type of entity, the jurisdiction and date of its incorporation or organization, its authorized capital stock, partnership

capital or equivalent, the number and type of its issued and outstanding shares of capital stock, partnership interests or similar ownership interests and the current ownership of such shares, partnership interests or similar ownership interests. No Subsidiary has any preferred securities outstanding or any stock options outstanding (or any obligation to issue any preferred securities or options). Other than the Subsidiaries set forth on Section 2.3 of the Disclosure Schedule, (i) there are no other corporations, partnerships, joint ventures, associations or other entities in which the Company or any Subsidiary (in whole or in part) owns, of record or beneficially, any direct or indirect equity or other interest or any right (contingent or otherwise) to acquire the same, and (ii) neither the Company nor any of its Subsidiaries is a member of (nor is any part of the business of any such Person conducted through) any partnership nor is any Company or any Subsidiary a participant in any joint venture or similar arrangement. Each Subsidiary of the Company is a corporation duly formed, validly existing and in good standing (or similar standing) under the laws of its jurisdiction of formation and has all requisite corporate power and authority to carry on its business as presently conducted and as proposed to be conducted. Each Subsidiary is duly qualified to transact business and is in good standing (or similar standing) in each jurisdiction where the character of its business makes such qualification and good standing (or similar standing) necessary. All corporate action taken by each Subsidiary of the Company have been duly authorized and no Subsidiary has taken any action that in any respect conflicts with, constitutes a default under or results in a violation of any provision of its articles of incorporation or by-laws (or similar organizational documents), each as amended. True and complete copies of the articles of incorporation and by-laws (or similar organizational documents), in each case as in effect on the date hereof, of each Subsidiary have been delivered by the Company to the Purchasers.

2.4. Authorization. All corporate action required to be taken by the Board of Directors and stockholders in order to authorize the Company to enter into the Transaction Agreements, and to issue the Shares at the Closing and the Common Stock issuable upon conversion of the Shares, has been taken or will be taken prior to the Closing. All action on the part of the officers of the Company necessary for the execution and delivery of the Transaction Agreements, the performance of all obligations of the Company under the Transaction Agreements to be performed as of the Closing, and the issuance and delivery of the Shares has been taken or will be taken prior to the Closing. The Transaction Agreements, when executed and delivered by the Company, shall constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other laws of general application relating to or affecting the enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies, or (iii) to the extent the indemnification provisions contained in the Investors’ Rights Agreement and the Indemnification Agreement may be limited by applicable federal or state securities laws.

2.5. Valid Issuance of Shares. The Shares, when issued, sold and delivered in accordance with the terms and for the consideration set forth in this Agreement, will be validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under the Transaction Agreements, applicable federal and state securities laws and liens

or encumbrances created by or imposed by a Purchaser. Assuming the accuracy of the representations of the Purchasers in Section 3 of this Agreement and subject to the filings described in Section 2.6(ii) below, the Shares will be issued in compliance with all applicable federal and state securities laws. The Common Stock issuable upon conversion of the Shares has been duly reserved for issuance, and upon issuance in accordance with the terms of the Charter, will be validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under the Transaction Agreements, applicable federal and state securities laws and liens or encumbrances created by or imposed by a Purchaser. Based in part upon the representations of the Purchasers in Section 3 of this Agreement, and subject to Section 2.6 below, the Common Stock issuable upon conversion of the Shares will be issued in compliance with all applicable federal and state securities laws.

2.6. Governmental Consents and Filings. Assuming the accuracy of the representations made by the Purchasers in Section 3 of this Agreement, no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any Governmental Authority is required on the part of the Company in connection with the consummation of the transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Determination, which will have been filed as of the Closing, and (ii) filings pursuant to Regulation D of the Securities Act, and applicable state securities laws, which have been made or will be made in a timely manner.

2.7. Litigation; Product Liability.

(a) There is no claim, action, suit, proceeding, arbitration, complaint, charge or investigation pending or to the Company’s knowledge, currently threatened in writing (i) against the Company or any officer, director or Key Employee of the Company; (ii) that questions the validity of the Transaction Agreements or the right of the Company to enter into them, or to consummate the transactions contemplated by the Transaction Agreements; or (iii) that would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. Neither the Company nor, to the Company’s knowledge, any of its officers, directors or Key Employees is a party or is named as subject to the provisions of any order, writ, injunction, judgment or decree of any court or government agency or instrumentality (in the case of officers, directors or Key Employees, such as would affect the Company). There is no action, suit, proceeding or investigation by the Company pending or which the Company intends to initiate. The foregoing includes, without limitation, actions, suits, proceedings or investigations pending or threatened in writing (or any basis therefor known to the Company) involving the prior employment of any of the Company’s employees, their services provided in connection with the Company’s business, or any information or techniques allegedly proprietary to any of their former employers, or their obligations under any agreements with prior employers.

(b) Since January 1, 2003, no Product Warranty or similar claims have been made against the Company or affecting any of the Company’s Assets or operations except routine claims as to which, in the aggregate, losses and expenses in respect of service costs and repair or replacement of merchandise were not material to the Company. The Company has not received notice or information as to any claim or allegation of personal injury, death, or property or economic damages, any claim for punitive or exemplary damages, any claim for contribution

or indemnification, or any claim for injunctive relief in connection with any Products. Since January 1, 2003, the Company has not been required to file any notification or other report with, or provide information to, any Governmental Authority or product safety standards group concerning actual or potential defects or hazards with respect to any Products. All Products that are required to meet the requirements to be registered by the EPA, the FDA, or other Governmental Authority, have been so registered.

2.8. Intellectual Property.

(a) The Company owns or possesses or can acquire on commercially reasonable terms sufficient legal rights to all Company Intellectual Property without any known conflict with, or infringement of, the rights of others. To the Company’s knowledge, no product or service marketed or sold (or proposed to be marketed or sold) by the Company violates or will violate any license or infringes or will infringe any intellectual property rights of any other party. Other than with respect to commercially available software products under standard end-user object code license agreements, there are no outstanding options, licenses, agreements, claims, encumbrances or shared ownership interests of any kind relating to the Company Intellectual Property, nor is the Company bound by or a party to any options, licenses or agreements of any kind with respect to the patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses, information, proprietary rights and processes of any other Person. The Company has not received any communications alleging that the Company has violated or, by conducting its business, would violate any of the patents, trademarks, service marks, tradenames, copyrights, trade secrets, mask works or other proprietary rights or processes of any other Person. The Company has obtained and possesses valid licenses to use all of the software programs present on the computers and other software-enabled electronic devices that it owns or leases or that it has otherwise provided to its employees for their use in connection with the Company’s business. To the Company’s knowledge, it will not be necessary to use any inventions of any of its employees or consultants (or Persons it currently intends to hire) made prior to their employment by the Company. Except as set forth on Section 2.8 of the Disclosure Schedule, each employee and consultant has assigned to the Company all intellectual property rights he or she owns that are related to the Company’s business as now conducted and as presently proposed to be conducted. Section 2.8 of the Disclosure Schedule also lists all Company Intellectual Property. The Company has not embedded any open source, copyleft or community source code in any of its products generally available or in development, including but not limited to any libraries or code licensed under any General Public License, Lesser General Public License or similar license arrangement. For purposes of this Section 2.8, the Company shall be deemed to have knowledge of a patent right if the Company has actual knowledge of the patent right or would be found to be on notice of such patent right as determined by reference to U.S. patent laws.

(b) From and after the Closing, the names “Planet Technologies” and “Planet Biopharmaceuticals” and all similar or related names, marks and logos or any other names, marks and logos used in connection with the business of the Company (all such names, marks and logos being the “Company Marks”) shall be owned by the Company, that no other Person shall have any rights in the Company ▇▇▇▇.

2.9. Compliance with Laws; Other Instruments. The Company has conducted and continue to conduct its business in material compliance with all foreign, federal, national, supranational, state, provincial, local or similar statutes, laws, ordinances, regulations, rules, codes, orders, requirements or rules of law (including common law) (collectively, “laws”), and governmental orders, applicable to the Company or its assets or business, including, but not limited to The Telephone Consumer Protection Act, and The Federal Telemarketing Consumer Fraud and Abuse Act of 1994, and the Company is not in violation of any such law or governmental order. The Company has not received any communication from any Governmental Authority that alleges that the Company is in violation in any material respect of any such law or governmental order. The Company is not in violation or default (i) of any provisions of its Charter, (ii) of any instrument, judgment, order, writ or decree, (iii) under any note, indenture or mortgage, or (iv) under any lease, agreement, contract or purchase order to which it is a party or by which it is bound that is required to be listed on the Disclosure Schedule. The execution, delivery and performance of the Transaction Agreements and the consummation of the transactions contemplated by the Transaction Agreements will not result in any such violation or be in conflict with or constitute, with or without the passage of time and giving of notice, either (i) a default under any such provision, instrument, judgment, order, writ, decree, contract or agreement or (ii) an event which results in the creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, forfeiture, or nonrenewal of any material permit or license applicable to the Company.

2.10. Agreements; Actions.

(a) Except for the Transaction Agreements, except as disclosed on Section 2.10(a) of the Disclosure Schedule, there are no agreements, understandings, instruments, contracts or proposed transactions to which the Company is a party or by which it is bound that (i) involve obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000, (ii) involve the license of any patent, copyright, trademark, trade secret or other proprietary right to or from the Company, (iii) involve the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other Person that limit the Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, (iv) involve indemnification by the Company with respect to infringements of proprietary rights, (v) involve the Company and any entity in which any officer, director, shareholder or employee of the Company has any interest, (vi) require the Company to make any payment upon consummation of the transactions contemplated hereby, or upon any subsequent sale of the Company or all or substantially all of its assets or (vii) restrict the ability of the Company to compete in any jurisdiction. Section 2.10(a) of the Disclosure Schedule also set forth each other agreement, understanding, instruments or contract which is material to the business of the Company.

(b) Except as disclosed on Section 2.10(b) of the Disclosure Schedule, the Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of $20,000 or in excess of $100,000 in the aggregate, (iii) made any loans or advances to any Person, other than ordinary

advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. For the purposes of subsections (b) and (c) of this Section 2.10, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same Person (including Persons the Company has reason to believe are affiliated with each other) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsection.

(d) The Company has not engaged in the past three (3) months in any discussion with any representative of any Person regarding (i) a sale or exclusive license of all or substantially all of the Company’s assets, or (ii) any merger, consolidation or other business combination transaction of the Company with or into another Person (except as provided for in Section 2.24).

2.11. Certain Transactions.

(a) Except as disclosed on Section 2.11 lf the Disclosure Schedule, and other than (i) standard employee benefits generally made available to all employees, (ii) standard director and officer indemnification agreements approved by the Board of Directors, and (iii) the purchase of shares of the Company’s capital stock and the issuance of options to purchase shares of the Company’s Common Stock, in each instance, approved in the written minutes of the Board of Directors (previously provided to the Purchasers or their counsel), there are no agreements, understandings or proposed transactions between the Company and any of its officers, directors, consultants or Key Employees, or any Affiliate thereof.

(b) The Company is not indebted, directly or indirectly, to any of its directors, officers or employees 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. None of the Company’s directors, officers or employees, or any members of their immediate families, or any Affiliate of the foregoing are, directly or indirectly, indebted to the Company or have any (i) 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, (ii) direct or indirect ownership interest in any firm or corporation with which the Company is affiliated or with which the Company has a business relationship, or any firm or corporation which competes with the Company except that directors, officers or employees or stockholders of the Company may own stock in (but not exceeding two percent (2%) of the outstanding capital stock of) publicly traded companies that may compete with the Company or (iii) financial interest in any contract with the Company.

2.12. Rights of Registration and Voting Rights. Except as provided in the Investors’ Rights Agreement, and except for registration rights that have either been cancelled

prior to the date hereof or irrevocably waived for the period of time in which a holder of Series B Preferred Stock (whether with respect to their Series B Preferred Stock or the underlying Common Stock) has registration rights in respect thereof, the Company is not under any obligation to register under the Securities Act any of its currently outstanding securities or any securities issuable upon exercise or conversion of its currently outstanding securities. To the Company’s knowledge, except as contemplated in the Voting Agreement, no stockholder of the Company has entered into any agreements with respect to the voting of capital shares of the Company.

2.13. Assets; Absence of Liens. The Company owns, leases or has the legal right to use all of the assets used or intended to be used in the conduct of its business or otherwise owned, leased or used by the Company, and, with respect to contract rights, is a party to and enjoys the right to the benefits of all contracts, agreements and other arrangements used or intended to be used by the Company or in or relating to the conduct of its business (collectively, the “Assets”). The Assets constitute all of the properties, assets and rights forming a part of, used, held or intended to be used in, and all such properties, assets and rights as are necessary in the conduct of, the business of the Company. At all times since the December 31, 2006, the Company has caused the Assets to be maintained in accordance with good business practice, and all of the Assets are in good operating condition and repair and are suitable for the purposes for which they are used and intended to be used. The Assets that the Company owns are free and clear of all mortgages, deeds of trust, liens, loans and encumbrances, except for statutory liens for the payment of current taxes that are not yet delinquent and encumbrances and liens that arise in the ordinary course of business and do not materially impair the Company’s ownership or use of such property or assets. With respect to the Assets it leases, the Company is in compliance with such leases and, to its knowledge, holds a valid leasehold interest free of any liens, claims or encumbrances other than those of the lessors of such property or assets.

2.14. Financial Statements. The Company has delivered to each Purchaser audited financial statements for the Company the fiscal years ended December 31, 2005 and December 31, 2006 and unaudited financial statements for the six-month period ended June 30, 2007 (collectively, the “Financial Statements”). The Financial Statements have been prepared in accordance with U.S. generally accepted accounting principles applied on a consistent basis throughout the periods indicated. The Financial Statements fairly present in all material respects the financial condition and operating results of the Company as of the dates, and for the periods, indicated therein, subject to normal year-end adjustments. Except as set forth in Section 2.14 of the Disclosure Schedule, the Company has no material liabilities or obligations, contingent or otherwise, other than (i) liabilities incurred in the ordinary course of business subsequent to June 30, 2007 and (ii) obligations under contracts and commitments incurred in the ordinary course of business. The Company maintains a standard system of accounting established and administered in accordance with U.S. generally accepted accounting principles, and will, after the Closing, maintain a standard system of accounting established and administered in accordance with U.S. generally accepted accounting principles.

2.15. Changes. Except as set forth on Section 2.15 of the Disclosure Schedule, since December 31, 2006 there has not been:

(a) any change in the business operations, assets, liabilities, condition (financial or otherwise), prospects or operating results of the Company from that reflected in the Financial Statements, except changes in the ordinary course of business that have not caused, in the aggregate, a Material Adverse Effect;

(b) any damage, destruction or loss, whether or not covered by insurance, that would have a Material Adverse Effect;

(d) any satisfaction or discharge of any lien, claim, or encumbrance or payment of any obligation by the Company, except in the ordinary course of business and the satisfaction or discharge of which would not have a Material Adverse Effect;

(e) any material change to a material contract or agreement by which the Company or any of its assets is bound or subject;

(f) any material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;

(g) any resignation or termination of employment of any officer or Key Employee of the Company;

(h) any mortgage, pledge, transfer of a security interest in, or lien, created by the Company, with respect to any of its material properties or assets, except liens for taxes not yet due or payable and liens that arise in the ordinary course of business and do not materially impair the Company’s ownership or use of such property or assets;

(i) any loans or guarantees made by the Company to or for the benefit of its employees, officers or directors, or any members of their immediate families, other than travel advances and other advances made in the ordinary course of its business;

(j) any declaration, setting aside or payment or other distribution in respect of any of the Company’s capital stock, or any direct or indirect redemption, purchase, or other acquisition of any of such stock by the Company;

(k) any sale, assignment or transfer of any Company Intellectual Property that could reasonably be expected to result in a Material Adverse Effect;

(l) receipt of notice that there has been a loss of, or material order cancellation by, any major customer of the Company;

(m) to the Company’s knowledge, any other event or condition of any character, other than events affecting the economy or the Company’s industry generally, that could reasonably be expected to result in a Material Adverse Effect; or

(n) any arrangement or commitment by the Company to do any of the things described in this Section 2.15.

2.16. Employee Matters.

(a) As of the date hereof, the Company employs twenty-three (23) full-time employees and three (3) part-time employees and engages five (5) consultants or independent contractors. Section 2.16 of the Disclosure Schedule sets forth a detailed description of all compensation, including salary, bonus, severance obligations and deferred compensation paid or payable for each officer, employee, consultant and independent contractor of the Company who received compensation in excess of $50,000 for the fiscal year ended December 31, 2006 or is anticipated to receive compensation in excess of $50,000 for the fiscal year ending December 31, 2007.

(b) To the Company’s knowledge, none of its employees is obligated under any contract (including licenses, covenants or commitments of any nature) or other agreement, or subject to any judgment, decree or order of any court or administrative agency, that would materially interfere with such employee’s ability to promote the interest of the Company or that would conflict with the Company’s business. Neither the execution or delivery of the Transaction Agreements, nor the carrying on of the Company’s business by the employees of the Company, nor the conduct of the Company’s business as now conducted and as presently proposed to be conducted, will, to the Company’s knowledge, conflict with or result in a breach of the terms, conditions, or provisions of, or constitute a default under, any contract, covenant or instrument under which any such employee is now obligated.

(c) The Company is not delinquent in payments to any of its employees, consultants, or independent contractors for any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants, or independent contractors. The Company has complied in all material respects with all applicable foreign, federal and state equal employment opportunity laws and with other laws related to employment, including those related to wages, hours, worker classification, and collective bargaining. The Company has withheld and paid to the appropriate Governmental Authority or is holding for payment not yet due to such Governmental Authority all amounts required to be withheld from employees of the Company and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing.

(d) To the Company’s knowledge, no Key Employee intends to terminate employment with the Company or is otherwise likely to become unavailable to continue as a Key Employee, nor does the Company have a present intention to terminate the employment of any of the foregoing. The employment of each employee of the Company is terminable at the will of the Company. Except as set forth in Section 2.16 of the Disclosure Schedule or as required by law, upon termination of the employment of any such employees, no severance or other payments will become due. Except as set forth in Section 2.16 of the Disclosure Schedule, the Company has no policy, practice, plan, or program of paying severance

pay or any form of severance compensation in connection with the termination of employment services.

(e) The Company has not made any representations regarding equity incentives to any officer, employees, director or consultant that are inconsistent with the share amounts and terms set forth in the minutes of meetings of the Company’s board of directors.

(f) Section 2.16 of the Disclosure Schedule contains a true and complete list of each Business Benefit Plan that as of the date of this Agreement is sponsored, maintained, or contributed to by the Company for the benefit of Business Employees. Except as set forth on Section 2.16 of the Disclosure Schedule, the Company has made all required contributions and has no liability to any Business Benefit Plan, and has complied in all material respects with all applicable laws for any Business Benefit Plan. With respect to each Business Benefit Plan, the Company has made available to the Purchasers a true, complete and correct copy of each (or in the case of any unwritten Business Benefit Plan, a written description thereof) and, to the extent applicable, (i) the most recent summary plan description (or similar document) for each Business Benefit Plan for which such a summary plan description is required by applicable law or was otherwise provided to plan participants or beneficiaries, (ii) any related trust agreements or funding instruments or agreements (whether now in effect or required in the future as a result of the transaction contemplated by this Agreement), (iii) a summary of any amendments or changes that the board of directors of the Company has approved or that have been communicated to employees as likely to be implemented within the twelve months immediately following the date hereof, and (iv) the most recent (A) Form 5500 and attached schedules, (B) financial statements and (C) actuarial valuation reports. Each Business Benefit Plan has been established and administered in accordance with its terms, and in compliance with the applicable provisions of ERISA, the Code, and all other applicable law; (ii) no “prohibited transaction” (as defined in Section 3975 of the Code or Section 306 of ERISA) has occurred that would reasonably be expected to subject the Company to the tax or sanctions on prohibited transactions imposed by Section 3975 of the Code or Title I of ERISA, and (iii) no “reportable event” (as defined in Section 30143 of ERISA) has occurred that would reasonably be expected to result in liability on the part of the Company or any Subsidiary and (iv) each U.S. Business Benefit Plan that is intended to qualify under Section 301(a) of the Code has received an IRS favorable determination letter. Neither the Company nor any member of its “Controlled Group” (defined as any organization that is a member of a controlled group of organizations within the meaning of Sections 414(b), (c), (m) or (o) of the Code), contributes to, sponsors, maintains or has any liability or obligation with respect to (i) a pension plan (within the meaning of Section 3(2) of ERISA) subject to Section 312 of the Code or Title IV of ERISA; (ii) a multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA); or (iii) a multiple employer plan for which, in the case of each of clauses (i), (ii) or (iii), the Company or any member of its Controlled Group would reasonably be expected to incur liability under Title IV of ERISA. With respect to any Business Benefit Plan: (i) no actions, suits or claims (other than routine claims for benefits) are pending or, to the Company’s knowledge, threatened, (ii) to the knowledge of the Company, no facts or circumstances exist that could give rise to any such actions, suits or claims (other than routine claims for benefits), and (iii) no investigation, audit or other administrative proceeding by the U.S. Department of Labor, the U.S. Internal Revenue

Service, or the U.S. Pension Benefit Guaranty Corporation are pending. Except as set forth in Section 2.16 of the Disclosure Schedule, no Business Benefit Plan exists that, as a result of the execution of this Agreement or the transactions contemplated hereby would: (i) trigger the payment of severance pay or increase the severance pay upon any termination of employment after the date of this Agreement, (ii) accelerate the time of payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or result in any other material obligation pursuant to, any Business Benefit Plan, (iii) cause the Company to record additional compensation expense on its income statement with respect to any outstanding stock option or other equity-based award, or (iv) result in payments that would not be deductible by reason of the application of Section 280G of the Code.

(g) The Company is not bound by or subject to (and none of its assets or properties is bound by or subject to) any written or oral, express or implied, contract, commitment or arrangement with any labor union, and no labor union has requested or, to the knowledge of the Company, has sought to represent any of the employees, representatives or agents of the Company. There is no strike or other labor dispute involving the Company pending, or to the Company’s knowledge, threatened, which could have a Material Adverse Effect, nor is the Company aware of any labor organization activity involving its employees.

(h) To the Company’s knowledge, none of the Key Employees or directors of the Company has been (a) subject to voluntary or involuntary petition under the federal bankruptcy laws or any state insolvency law or the appointment of a receiver, fiscal agent or similar officer by a court for his business or property; (b) convicted in a criminal proceeding or named as a subject of a pending criminal proceeding (excluding traffic violations and other minor offenses); (c) subject to any order, judgment, or decree (not subsequently reversed, suspended, or vacated) of any court of competent jurisdiction permanently or temporarily enjoining him from engaging, or otherwise imposing limits or conditions on his engagement in any securities, investment advisory, banking, insurance, or other type of business or acting as an officer or director of a public company; or (d) found by a court of competent jurisdiction in a civil action or by the Commission or the Commodity Futures Trading Commission to have violated any foreign, federal or state securities, commodities, or unfair trade practices law, which such judgment or finding has not been subsequently reversed, suspended, or vacated.

2.17. Tax Returns and Payments. There are no foreign, federal, state, county, local or foreign taxes dues and payable by the Company which have not been timely paid. There are no accrued and unpaid foreign, federal, state, country, local or foreign taxes of the Company which are due, whether or not assessed or disputed. There have been no examinations or audits of any tax returns or reports by any applicable Governmental Authority. The Company has duly and timely filed all federal, state, county, local and foreign tax returns required to have been filed by it and there are in effect no waivers of applicable statutes of limitations with respect to taxes for any year.

2.18. Insurance. The Company has in full force and effect fire and casualty insurance policies with extended coverage, sufficient in amount (subject to reasonable deductions) to allow it to replace any of its properties that might be damaged or destroyed. In

addition, the Company has in full force and effect product liability insurance, employee practices insurance and directors and officers insurance policies which are reasonable in scope and amount in light of the risks attendant to the businesses in which the Company is or has been engaged.

2.19. Confidential Information and Invention Assignment Agreements. Each current and former employee, consultant and officer of the Company has executed an agreement with the Company regarding confidentiality, proprietary information, inventions, non-competition (with 24-month post termination tail), non-solicitation (with 24-month post termination tail) and non-disparagement substantially in the form or forms delivered to the counsel for the Purchasers (the “Confidential Information Agreements”). No current or former Key Employee has excluded works or inventions from his or her assignment of inventions pursuant to such Key Employee’s Confidential Information Agreement. The Company is not aware that any of its Key Employees is in violation thereof.

2.20. Permits. The Company has all franchises, permits, licenses and any similar authority necessary for the conduct of its business, the lack of which could reasonably be expected to have a Material Adverse Effect. The Company is not in default in any material respect under any of such franchises, permits, licenses or other similar authority.

2.21. Corporate Documents. The Charter is in the form provided to the Purchasers. The copy of the minute books of the Company provided to the Purchasers contains minutes of all meetings of directors and stockholders and all actions by written consent without a meeting by the directors and stockholders for the past three (3) years and accurately reflects in all material respects all actions by the directors (and any committee of directors) and stockholders with respect to all transactions referred to in such minutes.

2.22. Environmental and Safety Laws. Except as could not reasonably be expected to have a Material Adverse Effect (a) the Company is and has been in compliance with all Environmental Laws; (b) the Company has not received any notice of any action under or relating to any Environmental Law, and to the Company’s knowledge, no such action is threatened; (c) there has been no release or threatened release of any pollutant, contaminant or toxic or hazardous material, substance or waste, or petroleum or any fraction thereof, (each a “Hazardous Substance”) on, upon, into or from any site currently or heretofore owned, leased or otherwise used by the Company; and (d) the Company has not contractually assumed any liability of any other Person under or relating to any Environmental Laws. The Company has made available to the Purchasers true and complete copies of all material environmental records, reports, notifications, certificates of need, permits, pending permit applications, correspondence, engineering studies, and environmental studies or assessments.

2.23. Commission Reports; Financial Statements. Except as set forth on Section 2.23 of the Disclosure Schedule, since January 1, 2005, the Company has filed all reports required to be filed by it under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, (or such shorter period as the Company was required by law to file such material) (the foregoing materials are collectively referred to herein as the “Commission Reports” and, together with this Agreement and the Schedules to this Agreement, the “Disclosure Materials”) on a timely basis or has received a valid extension of such time of

filing and has filed any such Commission Reports prior to the expiration of any such extension. The Company has delivered to the Purchasers a copy of all Commission Reports filed within the 10 days preceding the date hereof. As of their respective dates, the Commission Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act and the rules and regulations of the Commission promulgated thereunder, and none of the Commission Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. All material agreements to which the Company is a party or to which the property or assets of the Company is subject are included as part of or specifically identified in the Commission Reports. The Company has less than 300 stockholders, and has less than $25,000,000 in assets. Customers and Suppliers.

(a) Listed in Section 2.24(a) of the Disclosure Schedule are the names and addresses of each of the twenty most significant customers (by revenue) of the Company for the twelve-month period ended June 30, 2007 and the amount for which each such customer was invoiced during such period. The Company has not received any notice or has any reason to believe that any significant customer has ceased, or will cease, to use the products, equipment, goods or services of the Company, or has substantially reduced, or will substantially reduce, the use of such products, equipment, goods or services at any time.

(b) Listed in Section 2.24(b) of the Disclosure Schedule are the names and addresses of each of the twenty most significant suppliers (by cost) of raw materials, supplies, merchandise and other goods for the Company for the twelve-month period ended June 30, 2007 and the amount for which each such supplier invoiced the Company during such period. The Company has not received any notice or has any reason to believe that any such supplier will not sell raw materials, supplies, merchandise and other goods to the Company at any time after the Closing on terms and conditions substantially similar to those used in its current sales to the Company, subject only to general and customary price increases. None of the raw materials, supplies, merchandise and other goods supplied to the Company are such that they are not generally available in the market from more than one source.

2.24. Antigen SPA; Antigen Financial Statements. To the Company’s knowledge, each of the representations and warranties set forth in Sections 6 and 7 of the Antigen SPA are true and correct in all respects as of the Closing (other than any such representations and warranties that, by their terms, refer to a specific date other than the Closing, in which case such representations and warranties shall be true and correct in all respects as of such specific date). Each of the representations and warranties set forth in Section 8 of the Antigen SPA are true and correct in all respects as of the Closing (other than any such representations and warranties that, by their terms, refer to a specific date other than the Closing, in which case such representations and warranties shall be true and correct in all respects as of such specific date). All such representations and warranties are hereby incorporated herein as if set forth herein in their entirety, as delivered by the Company to the Purchasers (but with respect to the representations and warranties set forth in Sections 6 and 7 of the Antigen SPA, qualified by the Company’s knowledge). Each of the conditions to closing set forth in the Antigen SPA

have been fully satisfied, and have not been waived. Each of the covenants set forth in the Antigen SPA, with respect to any actions required to take place on or prior to the closing contemplated under the Antigen SPA, have been performed in all respects. To the Company’s knowledge, no breach has occurred under the Antigen SPA, and there exists no basis, as of the date hereof, for any indemnity claim thereunder. A true and complete copy of the Antigen SPA (as in effect on the date hereof) has been provided to the Purchasers. The Company has delivered to each Purchaser audited financial statements for Antigen for the year ended December 31, 2007 (the “Antigen Financial Statements”). The Antigen Financial Statements have been prepared in accordance with U.S. generally accepted accounting principles applied on a consistent basis throughout the periods indicated. The Antigen Financial Statements fairly present in all material respects the financial condition and operating results of Antigen as of the dates, and for the periods, indicated therein, subject to normal year-end adjustments. Except as set forth in Section 2.25 of the Disclosure Schedule, to the Company’s knowledge, Antigen has no material liabilities or obligations, contingent or otherwise, other than (i) liabilities incurred in the ordinary course of business subsequent to June 30, 2007 and (ii) obligations under contracts and commitments incurred in the ordinary course of business.

2.25. Disclosure. To the Company’s knowledge, no representation or warranty of the Company contained in this Agreement, as qualified by the Disclosure Schedule, and no certificate furnished or to be furnished to Purchasers at the Closing contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances under which they were made.

2.26. Reincorporation/Merger. The Company has provided to the Purchasers true and correct copies of all documents respecting the Company’s proposed reincorporation to Delaware, as contemplated by Section 6.1. Such documents shall not be amended or otherwise modified absent the prior written consent of the Purchasers.

3. Representations and Warranties of the Purchasers. Each Purchaser hereby represents and warrants to the Company, severally and not jointly, that:

3.1. Authorization. The Purchaser has full power and authority to enter into the Transaction Agreements. The Transaction Agreements to which the Purchaser is a party, when executed and delivered by the Purchaser, will constitute valid and legally binding obligations of the Purchaser, enforceable in accordance with their terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and any other laws of general application affecting enforcement of creditors’ rights generally, and as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies, or (b) to the extent the indemnification provisions contained in the Investors’ Rights Agreement may be limited by applicable federal or state securities laws.

3.2. Purchase Entirely for Own Account. This Agreement is made with the Purchaser in reliance upon the Purchasers’ representation to the Company, which by the Purchasers’ execution of this Agreement, the Purchaser hereby confirms, that the Shares to be acquired by the Purchaser will be acquired for investment for the Purchasers’ own account, not

as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that the Purchaser has no present intention of selling, granting any participation in, or otherwise distributing the same. By executing this Agreement, the Purchaser further represents that the Purchaser does not presently have any contract, undertaking, agreement or arrangement with any Person to sell, transfer or grant participations to such Person or to any third Person, with respect to any of the Shares. The Purchaser has not been formed for the specific purpose of acquiring the Shares.

3.3. Disclosure of Information. The Purchaser has had an opportunity to discuss the Company’s business, management, financial affairs and the terms and conditions of the offering of the Shares with the Company’s management and has had an opportunity to review the Company’s facilities. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 2 of this Agreement or the right of the Purchasers to rely thereon.

3.4. Restricted Securities. The Purchaser understands that the Shares have not been, and will not be, registered under the Securities Act, by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of the Purchaser’s representations as expressed herein. The Purchaser understands that the Shares are “restricted securities” under applicable U.S. federal and state securities laws and that, pursuant to these laws, the Purchaser must hold the Shares indefinitely unless they are registered with the Commission and qualified by state authorities, or an exemption from such registration and qualification requirements is available. The Purchaser acknowledges that the Company has no obligation to register or qualify the Shares, or the Common Stock into which it may be converted, for resale except as set forth in the Investors’ Rights Agreement. The Purchaser further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Shares, and on requirements relating to the Company which are outside of the Purchaser’s control, and which the Company is under no obligation and may not be able to satisfy.

3.5. No Public Market. The Purchaser understands that no public market now exists for the Shares, and that the Company has made no assurances that a public market will ever exist for the Shares.

3.6. Legends. The Purchaser understands that the Shares and any securities issued in respect of or exchange for the Shares, may bear one or all of the following legends:

(a) “THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH TRANSFER MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.”

(b) Any legend set forth in, or required by, the other Transaction Agreements.

(c) Any legend required by the securities laws of any state to the extent such laws are applicable to the Shares represented by the certificate so legended.

3.7. Accredited Investor. The Purchaser is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities Act.

3.8. No General Solicitation. Neither the Purchaser, nor any of its officers, directors, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder (a) engaged in any general solicitation, or (b) published any advertisement in connection with the offer and sale of the Shares.

3.9. Exculpation Among Purchasers. The Purchaser acknowledges that it is not relying upon any Person, other than the Company and its officers and directors, in making its investment or decision to invest in the Company. The Purchaser agrees that neither any Purchaser nor the respective controlling Persons, officers, directors, partners, agents or employees of any Purchaser shall be liable to any other Purchaser for any action heretofore taken or omitted to be taken by any of them in connection with the purchase of the Shares.

4. Conditions to the Purchasers’ Obligations at Closing. The obligations of each Purchaser to purchase Shares at the Closing are subject to the fulfillment, on or before such Closing, of each of the following conditions, unless otherwise waived:

4.1. Representations and Warranties. The representations and warranties of the Company contained in Section 2 shall be true and correct in all respects as of such Closing, other than any such representations and warranties that, by their terms, refer to a specific date other than Closing, in which case such representations and warranties shall be true and correct in all respects as of such specific date.

4.2. Performance. The Company shall have performed and complied with all covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by the Company on or before such Closing.

4.3. Compliance Certificate. The President of the Company shall deliver to the Purchasers at such Closing a certificate certifying that the conditions specified in this Section 4 have been fulfilled.

4.4. Qualifications. All authorizations, approvals or permits, if any, of any Governmental Authority or regulatory body that are required in connection with the lawful issuance and sale of the Shares pursuant to this Agreement shall be obtained and effective as of such Closing.

4.5. Opinion of Company Counsel. The Purchasers shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & French, counsel for the Company, an opinion, dated as of the Closing, in substantially the form of Exhibit J attached to this Agreement.

4.6. Board of Directors. As of the Closing, the size of the Board of Directors shall be five, and the Board of Directors shall be comprised of ▇▇▇▇▇ ▇▇▇▇▇ (who will be the initial chairperson), ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (who will be the initial vice-chairperson), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇. As of the Closing, ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇ shall be appointed to each committee of the Board of Directors, and the board of directors of each Subsidiary.

4.7. Indemnification Agreement. The Company and all directors shall have executed and delivered the Indemnification Agreement.

4.8. Investors’ Rights Agreement. The Company and each Purchaser (other than the Purchaser relying upon this condition to excuse such Purchaser’s performance hereunder) and the other stockholders of the Company named as parties thereto shall have executed and delivered the Investors’ Rights Agreement.

4.9. Right of First Refusal and Co-Sale Agreement. The Company, each Purchaser (other than the Purchaser relying upon this condition to excuse such Purchaser’s performance hereunder), and the other stockholders of the Company named as parties thereto shall have executed and delivered the Right of First Refusal and Co-Sale Agreement.

4.10. Voting Agreement. The Company, each Purchaser (other than the Purchaser relying upon this condition to excuse such Purchaser’s performance hereunder), and the other stockholders of the Company named as parties thereto shall have executed and delivered the Voting Agreement.

4.11. Certificate of Determination. The Company shall have filed the Certificate of Determination with the Secretary of State of California on or prior to the Closing, which shall continue to be in full force and effect as of the Closing.

4.12. Secretary’s Certificate. The Secretary of the Company shall have delivered to the Purchasers at the Closing a certificate certifying (i) the Articles, the Certificate of Determination and By-Laws of the Company, (ii) the good standing (or similar standing) of the Company and each of its Subsidiaries, and (iii) resolutions of the Board of Directors of the Company approving the Transaction Agreements and the transactions contemplated under the Transaction Agreements.

4.13. Consulting Agreement. ▇▇▇▇▇ ▇▇▇▇▇ shall have executed and delivered a consulting agreement with the Company reasonably satisfactory to each Purchaser.

4.14. Employment Agreement. The Company shall have provided a copy of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇’▇ employment contract to each Purchaser for its review.

4.15. Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated at the Closing and all documents incident thereto shall be reasonably satisfactory in form and substance to each Purchaser, and each Purchaser (or its counsel) shall have received all such counterpart original and certified or other copies of such documents as reasonably requested. Such documents may include good standing certificates.

4.16. De-Registration. Unless advised by the Commission, orally or in writing, not to file a Form 15 prior to obtaining a response to its no action request letter, the Company will file a Form 15 with the Commission prior to or concurrently with Closing to terminate the registration of the shares of Common Stock under Section 12(g) of the Exchange Act. If advised by the Commission not to file a Form 15 prior to or concurrently with the Closing, the Company shall file a Form 15 with the Commission at the earliest possible date that will result in an effective filing of the Form 15 in the reasonable judgment of counsel to the Company, but not later than January 2, 2008.

4.17. Operating Budget. Each Purchaser shall have approved the Company’s operating budget for 2008 through 2010.

4.18. Acquisition of Antigen. The Company shall concurrently consummate the acquisition of Antigen pursuant to the terms of the Antigen SPA.

4.19. FDA Matters. The Company shall have successfully completed a pre-IND meeting for sublingual immunotherapy between the FDA and Antigen; provided that in the event that the pre-IND meeting has not occurred prior to Closing, the Company shall have prepared a regulatory plan that is reasonably acceptable to each Purchaser.

4.20. Consents. The Company shall have received all approvals and consents necessary to undertake the transactions contemplated by this Agreement.

4.21. Material Adverse Change. No event has occurred that is reasonably like to cause a Material Adverse Effect.

4.22. Management Rights. A Management Rights Letter shall have been executed by the Company and delivered to each Purchaser.

4.23. Employment Agreement Amendments. At the Closing, the Company will deliver to the Purchaser amendments to the employment agreements of ▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, pursuant to which they each agree that during their employment with the Company, and for a period of two years thereafter, they shall not work or otherwise assist certain specified companies and any other company licensed to sell allergen antigen extracts in the U.S.

5. Conditions of the Company’s Obligations at Closing. The obligations of the Company to sell Shares to the Purchasers at the Closing are subject to the fulfillment, on or before the Closing, of each of the following conditions, unless otherwise waived:

5.1. Delivery of the Purchase Price. Each Purchaser shall have delivered to the Company the aggregate purchase price payable by such Purchaser pursuant to Section 1.2(b).

5.2. Representations and Warranties. The representations and warranties of each Purchaser contained in Section 3 shall be true and correct in all respects as of such Closing.

5.3. Performance. The Purchasers shall have performed and complied with all covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by them on or before such Closing.

5.4. Qualifications. All authorizations, approvals or permits, if any, of any Governmental Authority or regulatory body that are required in connection with the lawful issuance and sale of the Share pursuant to this Agreement shall be obtained and effective as of the Closing.

5.5. Investors’ Rights Agreement. Each Purchaser shall have executed and delivered the Investors’ Rights Agreement.

5.6. Right of First Refusal and Co-Sale Agreement. Each Purchaser and the other stockholders of the Company named as parties thereto shall have executed and delivered the Right of First Refusal and Co-Sale Agreement.

5.7. Voting Agreement. Each Purchaser and the other stockholders of the Company named as parties thereto shall have executed and delivered the Voting Agreement.

6. Miscellaneous.

6.1. Reincorporation. The Company hereby covenants and agrees that during the five business day period commencing on the effective date of the deregistration of the Company under Section 12(g) of the Securities Exchange Act of 1934 following the filing of Form 15 pursuant to Section 4.16 of this Agreement, the Company shall (a) reincorporate as a Delaware corporation, and (b) adopt, and file with the Delaware Secretary of State, the Amended and Restated Certificate of Incorporation, unless the Board with vote of ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇ (or their successors elected by the holders of the Series B Preferred Stock) determines otherwise. The Company shall use its best efforts in connection with the foregoing.

6.2. Survival of Warranties. Unless otherwise set forth in this Agreement, the representations and warranties of the Company and each Purchaser contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and the Closing and shall in no way be affected by any investigation or knowledge of the subject matter thereof made by or on behalf of the Purchaser or the Company.

6.3. Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies,

obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

6.4. Governing Law. This Agreement and any controversy arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware.

6.5. Counterparts; Facsimile. This Agreement may be executed and delivered by facsimile or PDF signature and in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

6.6. Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

6.7. Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or: (a) personal delivery to the party to be notified, (b) when sent, if sent by electronic mail or facsimile during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt. All communications shall be sent to the respective parties at their address as set forth on the signature page or Exhibit A, or to such e-mail address, facsimile number or address as subsequently modified by written notice given in accordance with this Section 6.7. If notice is given to the Company, a copy shall also be sent to ▇▇▇▇▇▇ ▇. Blanchard, Blanchard, ▇▇▇▇▇▇▇ & French, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, as counsel to the Company, and if notice is given to the Purchasers, a copy shall also be given to ▇▇▇▇ ▇. Finger, ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇^▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇, as counsel to Aisling Capital II, LP.

6.8. No Finder’s Fees. Each party represents that it neither is nor will be obligated for any finder’s fee or commission in connection with this transaction. Each Purchaser agrees to indemnify and to hold harmless the Company from any liability for any commission or compensation in the nature of a finder’s or broker’s fee arising out of this transaction (and the costs and expenses of defending against such liability or asserted liability) for which such Purchaser or any of its officers, employees, or representatives is responsible. The Company agrees to indemnify and hold harmless each Purchaser from any liability for any commission or compensation in the nature of a finder’s or broker’s fee arising out of this transaction (and the costs and expenses of defending against such liability or asserted liability) for which the Company or any of its officers, employees or representatives is responsible.

6.9. Fees and Expenses. At the Closing, the Company shall reimburse Aisling Capital II, LP for its fees and expenses in respect of its business, financial and legal, clinical and a patent and intellectual property due diligence and review, the fees and expenses of its legal

counsel(s), and such other out-of-pocket expenses related to the consummation of the financing contemplated herein, in an amount not to exceed, in the aggregate, $100,000.

6.10. Attorneys’ Fees. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of any of the Transaction Agreements, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.

6.11. Amendments and Waivers. Any term of this Agreement may be amended, terminated or waived only with the written consent of the Company and each of the Purchasers. Any amendment or waiver effected in accordance with this Section 6.11 shall be binding upon the Purchasers and each transferee of the Shares (or the Common Stock issuable upon conversion thereof), each future holder of all such securities, and the Company.

6.12. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision.

6.13. Delays or Omissions. No delay or omission to exercise any right, power or remedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement, shall impair any such right, power or remedy of such non-breaching or non-defaulting party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.

6.14. Entire Agreement. This Agreement (including the Exhibits hereto), the Certificate of Determination and the other Transaction Agreements constitute the full and entire understanding and agreement between the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the parties are expressly canceled.

6.15. Dispute Resolution. The parties (a) hereby irrevocably and unconditionally submit to the jurisdiction of the federal and state courts located within the geographic boundaries of the U.S. District Court for the State of Delaware, Wilmington County, for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the federal and state courts located within the geographic boundaries of the U.S. District Court for the State of Delaware, Wilmington County, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that

the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court. Each of the parties to this Agreement consents to personal jurisdiction for any equitable action sought in the U.S. District Court for the State of Delaware or any court of the State of Delaware, Wilmington County, having subject matter jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM.

6.16. No 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 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, signed by such Purchaser and the Company, 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. The 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.

[Remainder of Page Intentionally Left Blank]

IN WITNESS WHEREOF, the parties have executed this Series B Preferred Stock Purchase Agreement as of the date first written above.


		PLANET TECHNOLOGIES, INC.

		By:
		Name:		▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
		Title:		President and Chief Executive Officer

		WINDAMERE III, LLC

		By:

		Name:		▇▇▇▇▇ ▇▇▇▇▇
		Title:		Managing Member

		▇▇▇ ▇▇▇▇▇▇▇▇▇▇

EXHIBIT A

SCHEDULE OF PURCHASERS


	Number of Shares to be
Purchaser	Purchased		Consideration

Aisling Capital II, L.P. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Tel.: (▇▇▇) ▇▇▇-▇▇▇▇		3,000,000	$	18,000,000.00

Windamere III, LLC c/o Windamere Venture Partners ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Tel.: (▇▇▇) ▇▇▇-▇▇▇▇		83,333	$	500,000.00

▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇-▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇		233,333	$	1,399,999.98

Total		3,316,667	$	19,899,99.98

CERTIFICATE OF DETERMINATION OF PREFERENCES
OF THE SERIES B PREFERRED STOCK

PLANET TECHNOLOGIES, INC.

We, the undersigned, being the Chief Executive Officer and the Chief Financial Officer and Secretary, respectively, of Planet Technologies, Inc. (“The Corporation” or “The Company”), a corporation organized and existing under and by virtue of the provisions of the laws of the State of California, DO HEREBY CERTIFY:

FIRST: We are the duly elected and acting Chief Executive Officer and Chief Financial Officer, respectively, of the Company;

SECOND: The Articles of Incorporation of Planet Technologies, Inc., as amended and restated, (the “Articles”) authorizes the issuance of 5,000,000 shares of Preferred Stock, no par value per share (“Preferred Stock”);

THIRD: Pursuant to the Articles, the Board of the Directors of the Corporation is authorized to determine or alter the rights, preferences, privileges and restrictions granted to or imposed upon any wholly unissued series of Preferred Stock and to fix the number of shares constituting and the designation of said series;

FOURTH: Acting pursuant to aforementioned authority, the Board of Directors has adopted the following resolutions to determine and fix the rights, preferences, privileges and restrictions relating to a series of Preferred Stock, to be known as the Series B Preferred Stock, with 3,316,667 such shares authorized, none of the shares of such series having been issued;

NOW, THEREFORE, BE IT RESOLVED, that 3,316,667 shares of presently authorized but unissued Preferred Stock, no par value per share, are hereby determined to be and shall be a series of said Preferred Stock hereby designated as the “Series B Preferred Stock”; and

A. This series of preferred stock of this Corporation shall be designated as the “Series B Preferred Stock.”

B. The number of shares constituting the Series B Preferred Stock shall be Three Million, Three Hundred and Sixteen Thousand, Six Hundred and Sixty Seven (3,316,667) shares.

C. The rights, preferences, privileges, restrictions and other matters relating to the Series B Preferred Stock are as follows:

1. Dividends.

The holders of outstanding shares of Series B Preferred Stock shall be entitled to receive dividends, when, as and if declared by the Board of Directors, out of any assets at the time legally available therefore. The right to receive dividends on such shares shall be cumulative, and shall accrue to holders of Series B Preferred Stock from day to day whether or not declared

or paid in any calendar year or other period. Such dividend shall accrue from the date of issuance of any shares of Series B Preferred Stock at a rate per annum of $0.48 per share of Series B Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to Series B Preferred Stock) (the “Series B Dividend Preference”). Except as contemplated by the following sentence, the Series B Dividend Preference shall only be paid in the event of (i) any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, or Deemed Liquidation (as defined in Subsection 2.3.1), (ii) upon any redemption pursuant to Section 6, or (iii) the closing of the sale of shares of Common Stock to the public (but not including a Qualified IPO (as defined in Section 5.1) that occurs within eighteen months of the date hereof). Further, the Corporation shall not declare, pay or set aside any dividends on shares of any other class or series of capital stock of the Corporation (other than dividends on shares of Common Stock payable solely in shares of Common Stock) unless (i) the holders of the Series B Preferred Stock then outstanding shall first receive the Series B Dividend Preference and (ii) after payment of the Series B Dividend Preference the remainder of such dividends are declared or paid pro rata among the holders of the Preferred Stock and Common Stock on a per share basis (as if all shares of Preferred Stock had been converted into Common Stock immediately prior to the payment of such dividends) (such amount payable to the holders of the Series B Preferred, the “Series B Dividends”). Any Series B Dividends that become payable hereunder shall be paid in cash. The “Series B Original Issue Price” shall mean $6.00 per share, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series B Preferred Stock. Notwithstanding the foregoing, in the event that the Corporation determines, subject to Section 3.3 and without limitation to Section 2, including Section 2.3, to distribute the proceeds (cash or otherwise) resulting from any sale or other transfer of its securities or sale, license and/or other transfer of its assets (other than any sale, license or other transfer of its assets effected in the ordinary course of business of the Corporation for which the Corporation is not required to obtain any consent pursuant to Section 3.3), the proceeds resulting therefrom (including in respect of any ongoing payments, such as a royalty or milestone payment) shall be distributed in accordance with Sections 2.1 and 2.2, and not this Section 1.

2. Liquidation, Dissolution or Winding Up; Certain Mergers, Consolidations and Asset Sales.

2.1 Preferential Payments to Holders of Series B Preferred Stock. Subject to the final sentence of this Subsection 2.1, in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, or any Deemed Liquidation Event (as defined in Subsection 2.3.1), the holders of shares of Series B Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders, pursuant to the laws of the State of California, before any payment shall be made to the holders of any other shares of capital stock of the Company by reason of their ownership thereof, a cash amount per share equal to the Series B Original Issue Price, plus any Series B Dividends accrued but unpaid thereon. If upon any such liquidation, dissolution or winding up of the Corporation, the assets of the Corporation available for distribution to its stockholders, pursuant to the laws of the State of California, shall be insufficient to pay the holders of shares of Series B Preferred Stock the full amount to which they shall be entitled under this Subsection 2.1, the holders of shares of Series B Preferred Stock shall share ratably in any distribution of the

assets available for distribution in proportion to the respective amounts which would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full. Notwithstanding the foregoing, any payment payable pursuant to this Subsection 2.1 shall be pari passu with any payment payable to the holders of Redemption Notes (as defined Subsection 6.1) pursuant to Subsection 6.1 upon any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, or any Deemed Liquidation Event.

2.2 Distribution of Remaining Assets. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, after the payment of all preferential amounts required to be paid to the holders of shares of Series B Preferred Stock pursuant to Subsection 2.1, the remaining assets of the Corporation available for distribution to its stockholders, pursuant to the laws of the State of California, shall be distributed among the holders of the shares of Series B Preferred Stock and Common Stock, pro rata based on the number of shares held by each such holder, treating for this purpose all such securities as if they had been converted to Common Stock pursuant to the terms of the Certificate of Incorporation immediately prior to such dissolution, liquidation or winding up of the Corporation. The aggregate amount which a holder of a share of Series B Preferred Stock is entitled to receive under Subsections 2.1 and 2.2 is hereinafter referred to as the “Series B Liquidation Amount”; provided, however, if the Series B Liquidation Amount exceed the sum of (x) $21.00 (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series B Preferred Stock) per share of Series B Preferred Stock plus (y) any Series B Dividends accrued but unpaid thereon (determined on a per share basis) (the sum of (x) and (y), the “Liquidation Conversion Amount”), then the holders of outstanding shares of Series B Preferred Stock shall instead receive the amount such holder of Series B Preferred Stock would have received if the shares of Series B Preferred Stock were converted to shares of Common Stock prior to the Liquidation (but in no event less than the Liquidation Conversion Amount).

2.3 Deemed Liquidation Events.

2.3.1 Definition. Each of the following events shall be considered a “Deemed Liquidation Event” unless the holders of a majority of the outstanding shares of Series B Preferred Stock elect otherwise by written notice sent to the Corporation at least five (5) days prior to the effective date of any such event:

(a) a merger or consolidation in which

	(i)		the Corporation is a constituent party or

	(ii)		a subsidiary of the Corporation is a constituent party and the Corporation issues shares of its capital stock pursuant to such merger or consolidation,

that represent, immediately following such merger or consolidation, at least a majority, by voting power, of the capital stock of (1) the surviving or resulting corporation or (2) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation; or

(b) the sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, by the Corporation or any subsidiary of the Corporation of all or substantially all the assets of the Corporation and its subsidiaries taken as a whole or the sale or disposition (whether by merger or otherwise) of one or more subsidiaries of the Corporation if substantially all of the assets of the Corporation and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries, except where such sale, lease, transfer, exclusive license or other disposition is to a wholly owned subsidiary of the Corporation or where the holders of the capital stock immediately prior to such disposition (as such) hold immediately following such disposition at least a majority of the voting power and economic interest of the entity to whom the assets were transferred; or

(c) any other transaction or series of related transactions in which at least 60% of the equity or voting power of the capital stock of the Corporation is transferred.

2.3.2 Effecting a Deemed Liquidation Event. The Corporation shall not have the power to effect a Deemed Liquidation Event unless (i) the agreement relating to such transaction provides that the consideration payable to the stockholders of the Corporation shall be allocated among the holders of capital stock of the Corporation in accordance with Subsections 2.1 and 2.2 or (ii) the holders of both (A) at least a majority of the then outstanding shares of Series B Preferred Stock and (B) the aggregate principal amount of any then outstanding Redemption Notes, specifically approve (whether at a duly called meeting of the Series B Preferred Stockholders or by a valid written consent in lieu of a meeting) the allocation of such consideration in a manner different from that provided in Subsections 2.1 and 2.2.

2.3.3 Amount Deemed Paid or Distributed. The amount deemed paid or distributed to the holders of capital stock of the Corporation upon any such liquidation, dissolution or winding up of the Corporation, or Deemed Liquidation Event, shall be the cash or the value of the property, rights or securities paid or distributed to such holders by the Corporation or the acquiring person, firm or other entity. The value of such property, rights or securities shall be determined in good faith by the Board of Directors of the Corporation; provided, however, that if the amount involved could reasonably be determined to exceed $100,000 and the holders of a majority of the then outstanding shares of Series B Preferred Stock, voting together as a single class, notify the Board of Directors within fifteen (15) days after receiving from the Corporation written notification of the determination of such fair market value that they disagree with such determination, the Board of Directors, subject to the approval by an affirmative vote of the holders of a majority of the then outstanding shares of Series B Preferred Stock, given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class, shall agree upon a fair market value of the relevant property. Any securities to be distributed to stockholders shall be valued as follows:

(i) Valuation of Securities Subject to Investment Letter. Securities

not subject to investment letter or other similar restrictions on free marketability:

(a) if the securities are then traded on a national securities exchange or the NASDAQ National Market (or similar national quotation system), then the value of the securities shall be deemed to be the average of the closing prices of the securities on such exchange or system for the ten (10) consecutive trading days ending five (5) trading days prior to the distribution; and

(b) if the securities are actively traded over-the-counter, then the value of the securities shall be deemed to be the average of the closing bid prices of the securities for the ten (10) consecutive trading days ending five (5) trading days prior to the distribution.

(i) Valuation of Securities Not Subject to Investment Letter. The valuation of securities subject to investment letter or other restrictions on free marketability (other than restrictions arising solely by virtue of a stockholder’s status as an affiliate or former affiliate) shall be reduced by an appropriate discount from the market value determined as above in Subsection 2.3.3 to reflect the approximate fair market value thereof, as mutually determined by the Board of Directors and the holders of at least a majority of the voting power of all then outstanding shares of Series B Preferred Stock.

For the purposes of this Subsection 2.3, “trading day” shall mean any day which the exchange or system on which the securities to be distributed are traded is open and “closing prices” or “closing bid prices” shall be deemed to be: (i) for securities traded primarily on the New York Stock Exchange, the American Stock Exchange or NASDAQ, the last reported trade price or sale price, as the case may be, at 4:00 p.m., New York time, on that day; and (ii) for securities listed or traded on other exchanges, markets and systems, the market price as of the end of the regular hours trading period that is generally accepted as such for such exchange, market or system. If, after the date hereof, the benchmark times generally accepted in the securities industry for determining the market price of a stock as of a given trading day shall change from those set forth above, the fair market value shall be determined as of such other generally accepted benchmark times.

3. Voting.

3.1 General. On any matter presented to the stockholders of the Corporation for their action or consideration at any meeting of stockholders of the Corporation (or by written consent of stockholders in lieu of meeting), each holder of outstanding shares of Series B Preferred Stock shall be entitled to cast the number of votes equal to the number of whole shares of Common Stock into which the shares of Series B Preferred Stock held by such holder are convertible as of the record date for determining stockholders entitled to vote on such matter. Except as provided by law or by the other provisions of the Certificate of Incorporation, holders of Series B Preferred Stock shall vote together with the holders of Common Stock as a single class.

3.2 Election of Directors. The Board of Directors shall be composed of five

members; provided that at the election of holders of a majority of the outstanding Series B Preferred (the “Board Expansion Right”), the Board of Directors shall be increased by two members (the “Additional Series B Directors”), for a total of seven members. The holders of record of the shares of Series B Preferred Stock, exclusively as a separate class, shall be entitled to elect two directors of the Corporation (or four directors in the event that they exercise their Board Expansion Right) (including any Additional Series B Directors, the “Series B Directors”), and the holders of record of the shares of Common Stock and Series B Preferred Stock, voting together, shall be entitled to elect three directors of the Corporation. Except as otherwise required by law, any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of Series B Preferred Stock or Common Stock, as the case may be, fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 3.2, then any directorship not so filled shall remain vacant until such time as the holders of the Series B Preferred Stock or Common Stock, as the case may be, elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Series B Preferred Stock), exclusively and voting together as a single class, shall be entitled to elect the balance of the total number of directors of the Corporation. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 3.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by all remaining Directors.

3.3 Series B Preferred Stock Protective Provisions. In addition to any other consent required by law, at any time when shares of Series B Preferred Stock and/or Redemption Notes are outstanding, the Corporation shall not, either directly or indirectly by amendment, merger, consolidation or otherwise, do any of the following without the written consent or affirmative vote of the holders of a majority of the then outstanding shares of Series B Preferred Stock (including any Unredeemed Shares (as defined in Subsection 6.1) as if held instead of Redemption Notes), given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class:

(a) amend, alter or repeal any provision of the Certificate of Incorporation (including the Certificate of Designations) or Bylaws of the Corporation;

(b) create, or authorize the creation of, or issue or obligate itself to issue shares of, any additional class or series of capital stock pari passu or senior to the Series B Preferred Stock or increase or decrease the authorized number of shares of Series B Preferred Stock or Common Stock;

(c) enter into, or effect, a merger, consolidation, sale of all or substantially all of the assets of the Corporation (including a Deemed Liquidation) or otherwise liquidate, dissolve or wind-up the business and affairs of the Corporation;

(d) declare or pay any dividend on the Common Stock or other junior securities;

(e) alter or change the rights, preferences, privileges or restrictions of the shares of the Series B Preferred Stock (whether by merger, consolidation or otherwise);

(f) redeem, purchase or otherwise acquire (or permit any subsidiary to purchase or redeem), any shares of capital stock of the Corporation other than (i) the repurchase of shares of Common Stock pursuant to a written benefit plan or employment or consulting agreement (approved by the Board of Directors), (ii) the repurchase of any equity securities in connection with the Corporation’s right of first offer pursuant to an agreement executed by the Corporation or (iii) the cash payment for fractional shares upon the conversion of the Series B Preferred Stock into shares of Common Stock;

(g) increase or decrease the authorized number of directors constituting the Board of Directors;

(h) approve any sale, license or other transfer of any intellectual property of the Corporation, other than licenses made in the ordinary course of the Corporation’s business;

(i) approve material changes to the Corporation’s business plan; or

(j) amend the Investor Rights Agreement, the Voting Agreement or the Right of First Refusal and Co-Sale Agreement.

The foregoing shall be without limitation to any approvals required under law by the Board of Directors.

3.4 The Corporation will not permit any of its direct or indirect subsidiaries to take any of the actions specified in Section 3.3, other than payment of dividends to the direct or indirect subsidiaries’ parent entity, absent the written consent or affirmative vote of the holders of a majority of the then outstanding shares of Series B Preferred Stock (including any Unredeemed Shares as if held instead of Redemption Notes), given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class.

4. Optional Conversion.

The holders of the Series B Preferred Stock shall have conversion rights as follows (the “Conversion Rights”):

4.1 Right to Convert. Each share of Series B Preferred Stock shall be convertible, at the option of the holder thereof, at any time and from time to time, and without

the payment of additional consideration by the holder thereof, into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing the Series B Original Issue Price by the Series B Conversion Price (as defined in the following sentence) in effect at the time of conversion. The “Series B Conversion Price” shall initially be equal to $2.25, so initially each share of Series B Preferred Stock (if convertible on the date hereof) would be convertible into two and two-thirds shares of Common Stock. Such initial Series B Conversion Price, and the rate at which shares of Series B Preferred Stock may be converted into shares of Common Stock, shall be subject to adjustment as provided below.

4.2 Fractional Shares. No fractional shares of Common Stock shall be issued upon conversion of the Series B Preferred Stock. In lieu of any fractional shares to which the holder would otherwise be entitled, the Corporation shall pay cash equal to such fraction multiplied by the fair market value of a share of Common Stock as determined in good faith by the Board of Directors of the Corporation. Whether or not fractional shares would be issuable upon such conversion shall be determined on the basis of the total number of shares of Series B Preferred Stock the holder is at the time converting into Common Stock and the aggregate number of shares of Common Stock issuable upon such conversion.

4.3 No Conversion. For so long as the shares of Common Stock remain registered pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and for a period of 61 days thereafter, the number of shares of Common Stock that may be acquired by any holder upon any conversion of Series B Preferred Stock (or otherwise in respect of the Series B Preferred Stock) shall be limited to the extent necessary to ensure that, following such conversion (or other issuance), the total number of shares of Common Stock then beneficially owned by all stockholders and their respective Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the stockholder’s for purposes of Section 13(d) of the Exchange Act (including, without limitation, any other members of any “group” (within the meaning of Rule 13d-5(b) promulgated under the Exchange Act), does not exceed 4.999% of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock issuable upon such conversion); provided, however, that this Section 4.3 shall terminate and be of no further force and effect upon the first to occur of (i) June 1, 2008, (ii) such earlier date as the Company shall have no class of securities registered under Section 12(g) of the Exchange Act, and (iii) the consummation of a Qualified IPO, or any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, or any Deemed Liquidation Event. Each delivery of a notice of conversion by a holder of Series B Preferred Stock will constitute a representation by such holder that it has evaluated the limitation set forth in this paragraph and determined that issuance of the full number of shares of Common Stock requested in such notice of conversion is permitted under this paragraph. For such purposes, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder.

4.4 Mechanics of Conversion.

Stock (or, if such registered holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate), at the office of the transfer agent for the Series B Preferred Stock (or at the principal office of the Corporation if the Corporation serves as its own transfer agent), together with written notice that such holder elects to convert all or any number of the shares of the Series B Preferred Stock represented by such certificate or certificates and, if applicable, any event on which such conversion is contingent. Such notice shall state such holder’s name or the names of the nominees in which such holder wishes the certificate or certificates for shares of Common Stock to be issued. If required by the Corporation, certificates surrendered for conversion shall be endorsed or accompanied by a written instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by the registered holder or his, her or its attorney duly authorized in writing. The close of business on the date of receipt by the transfer agent (or by the Corporation if the Corporation serves as its own transfer agent) of such certificates (or lost certificate affidavit and agreement) and notice shall be the time of conversion (the “Conversion Time”), and the shares of Common Stock issuable upon conversion of the shares represented by such certificate shall be deemed to be outstanding of record as of such date. The Corporation shall, as soon as practicable after the Conversion Time, issue and deliver to such holder of Series B Preferred Stock, or to his, her or its nominees, a certificate or certificates for the number of full shares of Common Stock issuable upon such conversion in accordance with the provisions hereof, a certificate for the number (if any) of the shares of Series B Preferred Stock represented by the surrendered certificate that were not converted into Common Stock, and cash as provided in Subsection 4.2 in lieu of any fraction of a share of Common Stock otherwise issuable upon such conversion and payment of any declared but unpaid dividends on the shares of Series B Preferred Stock converted.

4.4.2 Reservation of Shares. The Corporation shall at all times when the Series B Preferred Stock shall be outstanding, reserve and keep available out of its authorized but unissued capital stock, for the purpose of effecting the conversion of the Series B Preferred Stock, such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding Series B Preferred Stock; and 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 Stock, the Corporation shall 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 purposes, including, without limitation, engaging in best efforts to obtain the requisite stockholder approval of any necessary amendment to the Certificate of Incorporation. Before taking any action which would cause an adjustment reducing the Series B Conversion Price below the then par value of the shares of Common Stock issuable upon conversion of the Series B Preferred Stock, the Corporation will take any corporate action which may, in the opinion of its counsel, be necessary in order that the Corporation may validly and legally issue fully paid and nonassessable shares of Common Stock at such adjusted Series B Conversion Price.

terminate at the Conversion Time, except only the right of the holders thereof to receive shares of Common Stock in exchange therefor and to receive payment of any dividends declared but unpaid thereon and payment of any fractional shares. Any shares of Series B Preferred Stock so converted shall be retired and cancelled and may not be reissued as shares of such series, and the Corporation may thereafter take such appropriate action (without the need for stockholder action) as may be necessary to reduce the authorized number of shares of Series B Preferred Stock accordingly.

4.4.4 No Further Adjustment. Upon any such conversion, no adjustment to the Series B Conversion Price shall be made for any declared but unpaid dividends on the Series B Preferred Stock surrendered for conversion or on the Common Stock delivered upon conversion.

4.4.5 Taxes. The Corporation shall pay any and all issue and other similar taxes that may be payable in respect of any issuance or delivery of shares of Common Stock upon conversion of shares of Series B Preferred Stock pursuant to this Section 4. The Corporation shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of shares of Common Stock in a name other than that in which the shares of Series B Preferred Stock so converted were registered, and no such issuance or delivery shall be made unless and until the person or entity requesting such issuance has paid to the Corporation the amount of any such tax or has established, to the satisfaction of the Corporation, that such tax has been paid.

4.5 Adjustments to Series B Conversion Price for Diluting Issues.

4.5.1 Special Definitions. For purposes of this Article Fourth, the following definitions shall apply:

(a) “Option” shall mean rights, options or warrants to subscribe for, purchase or otherwise acquire Common Stock or Convertible Securities.

(b) “Series B Original Issue Date” shall mean the date on which the first share of Series B Preferred Stock was issued.

(c) “Convertible Securities” shall mean any evidences of indebtedness, shares or other securities directly or indirectly convertible into or exchangeable for Common Stock, but excluding Options.

(d) “Additional Shares of Common Stock” shall mean all shares of Common Stock issued (or, pursuant to Subsection 4.5.3 below, deemed to be issued) by the Corporation after the Series B Original Issue Date, other than the following shares of Common Stock, and shares of Common Stock deemed issued pursuant to the following Options and Convertible Securities (collectively “Exempted Securities”):

(i)

shares of Common Stock, Options or Convertible Securities issued as a dividend or distribution on Series B Preferred Stock;

	(ii)		shares of Common Stock, Options or Convertible Securities issued by reason of a dividend, stock split, split-up or other distribution on shares of Common Stock that is covered by Subsection 4.6, 4.7, 4.8 or 4.9; or

	(iii)		up to 693,613 shares of Common Stock issued upon the exercise of Options outstanding as of the date hereof, and up to 1,000,000 shares of Common Stock issued upon exercise of Options issued to employees or directors of, or consultants or advisors to, the Corporation or any of its subsidiaries pursuant to a plan, agreement or arrangement approved by the Board of Directors of the Corporation and the affirmative vote of the holders of a majority of the then outstanding shares of Series B Preferred Stock, given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class;

	(iv)		shares of Common Stock or rights to purchase Common Stock issued pursuant to any debt or lease financing arrangement with a bank or similar financial services company approved by the Board of Directors of the Corporation and the affirmative vote of the holders of a majority of the then outstanding shares of Series B Preferred Stock, given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class.

4.5.2 No Adjustment of Series B Conversion Price. No adjustment in the Series B Conversion Price shall be made as the result of the issuance or deemed issuance of Additional Shares of Common Stock if the Corporation receives written notice from the holders of at least a majority of the then outstanding shares of Series B Preferred Stock agreeing that no such adjustment shall be made as the result of the issuance or deemed issuance of such Additional Shares of Common Stock.

4.5.3 Deemed Issue of Additional Shares of Common Stock.

therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed to be Additional Shares of Common Stock issued as of the time of such issue or, in case such a record date shall have been fixed, as of the close of business on such record date.

(b) If the terms of any Option or Convertible Security, the issuance of which resulted in an adjustment to the Series B Conversion Price pursuant to the terms of Subsection 4.5.4, are revised as a result of an amendment to such terms or any other adjustment pursuant to the provisions of such Option or Convertible Security (but excluding automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible Security) to provide for either (1) any increase or decrease in the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any such Option or Convertible Security or (2) any increase or decrease in the consideration payable to the Corporation upon such exercise, conversion and/or exchange, then, effective upon such increase or decrease becoming effective, the Series B Conversion Price computed upon the original issue of such Option or Convertible Security (or upon the occurrence of a record date with respect thereto) shall be readjusted to such Series B Conversion Price as would have obtained had such revised terms been in effect upon the original date of issuance of such Option or Convertible Security. Notwithstanding the foregoing, no readjustment pursuant to this clause (b) shall have the effect of increasing the Series B Conversion Price to an amount which exceeds the lower of (i) the Series B Conversion Price in effect immediately prior to the original adjustment made as a result of the issuance of such Option or Convertible Security, or (ii) the Series B Conversion Price that would have resulted from any issuances of Additional Shares of Common Stock (other than deemed issuances of Additional Shares of Common Stock as a result of the issuance of such Option or Convertible Security) between the original adjustment date and such readjustment date.

(c) If the terms of any Option or Convertible Security (excluding Options or Convertible Securities which are themselves Exempted Securities), the issuance of which did not result in an adjustment to the Series B Conversion Price pursuant to the terms of Subsection 4.5.4 (either because the consideration per share (determined pursuant to Subsection 4.5.5) of the Additional Shares of Common Stock subject thereto was equal to or greater than the Series B Conversion Price then in effect, or because such Option or Convertible Security was issued before the Series B Original Issue Date), are revised after the Series B Original Issue Date as a result of an amendment to such terms or any other adjustment pursuant to the provisions of such Option or Convertible Security (but excluding automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible Security) to provide for either (1) any increase or decrease in the number of shares of Common Stock issuable upon the exercise, conversion or exchange of any such Option or Convertible Security or (2) any increase or decrease in the consideration payable to the Corporation upon such exercise, conversion or exchange, then such Option or Convertible Security, as so amended or adjusted, and the Additional Shares of Common Stock subject thereto (determined in the manner provided in Subsection 4.5.3(a)) shall be deemed to have been issued effective upon such increase or decrease becoming effective.

(d) Upon the expiration or termination of any unexercised

Option or unconverted or unexchanged Convertible Security (or portion thereof) which resulted (either upon its original issuance or upon a revision of its terms) in an adjustment to the Series B Conversion Price pursuant to the terms of Subsection 4.5.4, the Series B Conversion Price shall be readjusted to such Series B Conversion Price as would have obtained had such Option or Convertible Security (or portion thereof) never been issued.

(e) If the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any Option or Convertible Security, or the consideration payable to the Corporation upon such exercise, conversion and/or exchange, is calculable at the time such Option or Convertible Security is issued or amended but is subject to adjustment based upon subsequent events, any adjustment to the Series B Conversion Price provided for in this Subsection 4.5.3 shall be effected at the time of such issuance or amendment based on such number of shares or amount of consideration without regard to any provisions for subsequent adjustments (and any subsequent adjustments shall be treated as provided in clauses (b) and (c) of this Subsection 4.5.3). If the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any Option or Convertible Security, or the consideration payable to the Corporation upon such exercise, conversion and/or exchange, cannot be calculated at all at the time such Option or Convertible Security is issued or amended, any adjustment to the Series B Conversion Price that would result under the terms of this Subsection 4.5.3 at the time of such issuance or amendment shall instead be effected at the time such number of shares and/or amount of consideration is first calculable (even if subject to subsequent adjustments), assuming for purposes of calculating such adjustment to the Series B Conversion Price that such issuance or amendment took place at the time such calculation can first be made.

4.5.4 Adjustment of Series B Conversion Price Upon Issuance of Additional Shares of Common Stock. In the event the Corporation shall at any time after the Series B Original Issue Date issue Additional Shares of Common Stock (including Additional Shares of Common Stock deemed to be issued pursuant to Subsection 4.5.3), without consideration or for a consideration per share less than the Series B Conversion Price in effect immediately prior to such issue, then the Series B Conversion Price shall be reduced, concurrently with such issue, to a price (calculated to the nearest one-hundredth of a cent) determined in accordance with the following formula:

CP₂ = CP₁* (A + B) ÷ (A + C).

For purposes of the foregoing formula, the following definitions shall apply:

(a) “CP₂” shall mean the Series B Conversion Price in effect immediately after such issue of Additional Shares of Common Stock

(b) “CP₁” shall mean the Series B Conversion Price in effect immediately prior to such issue of Additional Shares of Common Stock;

outstanding immediately prior to such issue or upon conversion or exchange of Convertible Securities (including the Series B Preferred Stock) outstanding (assuming exercise of any outstanding Options therefor) immediately prior to such issue);

(d) “B” shall mean the number of shares of Common Stock that would have been issued if such Additional Shares of Common Stock had been issued at a price per share equal to CP₁ (determined by dividing the aggregate consideration received by the Corporation in respect of such issue by CP₁); and

(e) “C” shall mean the number of such Additional Shares of Common Stock issued in such transaction.

4.5.5 Determination of Consideration. For purposes of this Subsection 4.5, the consideration received by the Corporation for the issue of any Additional Shares of Common Stock shall be computed as follows:

(a) Cash and Property: Such consideration shall:

	(i)		insofar as it consists of cash, be computed at the aggregate amount of cash received by the Corporation, excluding amounts paid or payable for accrued interest and before deducting any reasonable discounts, commissions or other expenses allowed, paid or incurred by the Corporation for any underwriting or otherwise in connection with such issuance;

	(ii)		insofar as it consists of property other than cash, be computed at the fair market value thereof at the time of such issue, as determined in good faith by the Board of Directors of the Corporation; provided, however, that if the amount involved could reasonably be determined to exceed $100,000 and the holders of a majority of the then outstanding shares of Series B Preferred Stock, voting together as a single class, notify the Board of Directors within fifteen (15) days after receiving from the Corporation written notification of the determination of such fair market value that they disagree with such determination, the Board of Directors, subject to the approval by an affirmative vote of the holders of a majority of the then outstanding shares of Series B Preferred Stock, given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class, shall agree upon a fair market value of the relevant property; and

(iii)

in the event Additional Shares of Common Stock are issued together with other shares or securities or other assets of the Corporation for consideration which covers both, be the proportion of such consideration so received, computed as provided in clauses (i) and (ii) above, as determined in good faith by the Board of Directors of the Corporation.

(b) Options and Convertible Securities. The consideration per share received by the Corporation for Additional Shares of Common Stock deemed to have been issued pursuant to Subsection 4.5.3, relating to Options and Convertible Securities, shall be determined by dividing

	(i)		the total amount, if any, received or receivable by the Corporation as consideration for the issue of such Options or Convertible Securities, plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration) payable to the Corporation upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities, by

	(ii)		the maximum number of shares of Common Stock (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities.

4.5.6 Multiple Closing Dates. In the event the Corporation shall issue on more than one date Additional Shares of Common Stock that are a part of one transaction or a series of related transactions and that would result in an adjustment to the Series B Conversion Price pursuant to the terms of Subsection 4.5.4 then, upon the final such issuance, the Series B Conversion Price shall be readjusted to give effect to all such issuances as if they occurred on the date of the first such issuance (and without giving effect to any additional adjustments as a result of any such subsequent issuances within such period).

4.6 Adjustment for Stock Splits and Combinations. If the Corporation shall at any time or from time to time after the Series B Original Issue Date effect a subdivision of the outstanding Common Stock, the Series B Conversion Price in effect immediately before that subdivision shall be proportionately decreased so that the number of shares of Common Stock issuable on conversion of each share of such series shall be increased in proportion to such increase in the aggregate number of shares of Common Stock outstanding. If the Corporation shall at any time or from time to time after the Series B Original Issue Date combine the outstanding shares of Common Stock, the Series B Conversion Price in effect immediately before the combination shall be proportionately increased so that the number of shares of Common Stock issuable on conversion of each share of such series shall be decreased in proportion to such decrease in the aggregate number of shares of Common Stock outstanding. Any adjustment under this subsection shall become effective at the close of business on the date the subdivision or combination becomes effective.

4.7 Adjustment for Certain Dividends and Distributions. In the event the Corporation at any time or from time to time after the Series B Original Issue Date shall make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable on the Common Stock in additional shares of Common Stock, then and in each such event the Series B Conversion Price in effect immediately before such event shall be decreased as of the time of such issuance or, in the event such a record date shall have been fixed, as of the close of business on such record date, by multiplying the Series B Conversion Price then in effect by a fraction:

	(1)		the numerator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date, and

	(2)		the denominator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date plus the number of shares of Common Stock issuable in payment of such dividend or distribution.

Notwithstanding the foregoing, (a) if such record date shall have been fixed and such dividend is not fully paid or if such distribution is not fully made on the date fixed therefor, the Series B Conversion Price shall be recomputed accordingly as of the close of business on such record date and thereafter the Series B Conversion Price shall be adjusted pursuant to this subsection as of the time of actual payment of such dividends or distributions; and (b) that no such adjustment shall be made if the holders of Series B Preferred Stock simultaneously receive a dividend or other distribution of shares of Common Stock in a number equal to the number of shares of Common Stock as they would have received if all outstanding shares of Series B Preferred Stock had been converted into Common Stock on the date of such event.

a dividend or other distribution payable in securities of the Corporation (other than a distribution of shares of Common Stock in respect of outstanding shares of Common Stock) or in other property and the provisions of Section 1 do not apply to such dividend or distribution, then and in each such event the holders of Series B Preferred Stock shall receive, simultaneously with the distribution to the holders of Common Stock, a dividend or other distribution of such securities or other property in an amount equal to the amount of such securities or other property as they would have received if all outstanding shares of Series B Preferred Stock had been converted into Common Stock on the date of such event.

4.9 Adjustment for Merger or Reorganization, etc. Subject to the provisions of Subsection 2.3, if there shall occur any reorganization, recapitalization, reclassification, consolidation or merger involving the Corporation in which the Common Stock (but not the Series B Preferred Stock) is converted into or exchanged for securities, cash or other property (other than a transaction covered by Subsections 4.5, 4.7 or 4.8), then, following any such reorganization, recapitalization, reclassification, consolidation or merger, each share of Series B Preferred Stock shall thereafter be convertible in lieu of the Common Stock into which it was convertible prior to such event into the kind and amount of securities, cash or other property which a holder of the number of shares of Common Stock of the Corporation issuable upon conversion of one share of Series B Preferred Stock immediately prior to such reorganization, recapitalization, reclassification, consolidation or merger would have been entitled to receive pursuant to such transaction; and, in such case, appropriate adjustment (as determined in good faith by the Board of Directors of the Corporation) shall be made in the application of the provisions in this Section 4 with respect to the rights and interests thereafter of the holders of the Series B Preferred Stock, to the end that the provisions set forth in this Section 4 (including provisions with respect to changes in and other adjustments of the Series B Conversion Price) shall thereafter be applicable, as nearly as reasonably may be, in relation to any securities or other property thereafter deliverable upon the conversion of the Series B Preferred Stock.

4.10 Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment of the Series B Conversion Price pursuant to this Section 4, the Corporation at its expense shall, as promptly as reasonably practicable but in any event not later than 10 days thereafter, compute such adjustment or readjustment in accordance with the terms hereof and furnish to each holder of Series B Preferred Stock a certificate setting forth such adjustment or readjustment (including the kind and amount of securities, cash or other property into which the Series B Preferred Stock is convertible) and showing in detail the facts upon which such adjustment or readjustment is based. The Corporation shall, as promptly as reasonably practicable after the written request at any time of any holder of Series B Preferred Stock (but in any event not later than 10 days thereafter), furnish or cause to be furnished to such holder a certificate setting forth (i) the Series B Conversion Price then in effect, and (ii) the number of shares of Common Stock and the amount, if any, of other securities, cash or property which then would be received upon the conversion of Series B Preferred Stock.

4.11 Notice of Record Date. In the event:

other distribution, or to receive any right to subscribe for or purchase any shares of capital stock of any class or any other securities, or to receive any other security; or

(b) of any capital reorganization of the Corporation, any reclassification of the Common Stock of the Corporation, or any Deemed Liquidation Event; or

then, and in each such case, the Corporation will send or cause to be sent to the holders of the Series B Preferred Stock a notice specifying, as the case may be, (i) the record date for such dividend, distribution or right, and the amount and character of such dividend, distribution or right, or (ii) the effective date on which such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up is proposed to take place, and the time, if any is to be fixed, as of which the holders of record of Common Stock (or such other capital stock or securities at the time issuable upon the conversion of the Series B Preferred Stock) shall be entitled to exchange their shares of Common Stock (or such other capital stock or securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up, and the amount per share and character of such exchange applicable to the Series B Preferred Stock and the Common Stock. Such notice shall be sent at least 10 days prior to the record date or effective date for the event specified in such notice.

5. Mandatory Conversion.

5.1 Trigger Events. Upon either (a) the closing of the sale of shares of Common Stock to the public at a price of at least $5.625 per share (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Common Stock), in a firm-commitment underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended, resulting in at least $25,000,000 of gross proceeds to the Corporation (a “Qualified IPO”) or (b) the date and time, or the occurrence of an event, specified by vote or written consent of the holders of at least a majority of the then outstanding shares of Series B Preferred Stock (the time of such closing or the date and time specified or the time of the event specified in such vote or written consent is referred to herein as the “Mandatory Conversion Time”), (i) all outstanding shares of Series B Preferred Stock shall automatically be converted into shares of Common Stock, at the then effective conversion rate and (ii) such shares may not be reissued by the Corporation.

claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate) to the Corporation at the place designated in such notice. If so required by the Corporation, certificates surrendered for conversion shall be endorsed or accompanied by written instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by the registered holder or by his, her or its attorney duly authorized in writing. All rights with respect to the Series B Preferred Stock converted pursuant to Section 5.1, including the rights, if any, to receive notices and vote (other than as a holder of Common Stock), will terminate at the Mandatory Conversion Time (notwithstanding the failure of the holder or holders thereof to surrender the certificates at or prior to such time), except only the rights of the holders thereof, upon surrender of their certificate or certificates (or lost certificate affidavit and agreement) therefor, to receive the items provided for in the next sentence of this Subsection 5.2. As soon as practicable after the Mandatory Conversion Time and the surrender of the certificate or certificates (or lost certificate affidavit and agreement) for Series B Preferred Stock, the Corporation shall issue and deliver to such holder, or to his, her or its nominees, a certificate or certificates for the number of full shares of Common Stock issuable on such conversion in accordance with the provisions hereof, together with cash as provided in Subsection 4.2 in lieu of any fraction of a share of Common Stock otherwise issuable upon such conversion and the payment of any declared but unpaid dividends on the shares of Series B Preferred Stock converted. Such converted Series B Preferred Stock shall be retired and cancelled and may not be reissued as shares of such series, and the Corporation may thereafter take such appropriate action (without the need for stockholder action) as may be necessary to reduce the authorized number of shares of Series B Preferred Stock accordingly.

6. Redemption.

6.1 Redemption. At any time on or after November 1, 2014, the holders of the then outstanding shares of Series B Preferred Stock may require the Corporation to redeem all or a portion of their shares of Series B Preferred Stock out of funds lawfully available therefor at a price equal to the Series B Original Issue Price plus any Series B Dividends accrued but unpaid thereon (the “Redemption Price”). Within five business days of receipt of a Redemption Notice, the Corporation shall provide written notice (the “Corporation Notice”) to all holders of Series B Preferred Stock stating that the Corporation has received a Redemption Notice and inviting each such holder to require redemption of all or a portion of their shares of Series B Preferred Stock by delivering notice to the Corporation within twenty business days of receipt of a Corporation Notice. The Corporation shall within 90 days after receipt by the Corporation of the Redemption Notice (the “Redemption Date”) be required to redeem all shares of Series B Preferred Stock requested to be redeemed. On the Redemption Date, the Corporation shall redeem all shares of Series B Preferred Stock for which a request for redemption has been made; provided that if the Corporation does not have sufficient funds legally available to redeem on the Redemption Date all such shares, the Corporation shall redeem a pro rata portion of each holder’s redeemable shares of such Series B Preferred Stock (requested to be redeemed) out of funds legally available therefor, based on the respective amounts which would otherwise be payable in respect of the shares to be redeemed if the legally available funds were sufficient to redeem all such shares, and shall redeem the remaining shares by issuance of a secured note (a “Redemption Note”), which shall be secured by all of the assets of the Corporation (and senior to any other indebtedness of the Corporation other than indebtedness owed to a banking or similar institution which is senior to the Redemption Notes); provided further that if the legally

available funds are not sufficient to redeem all of the shares of Series B Preferred Stock that otherwise would have been redeemed then any holder of Series B Preferred Stock who so elected to redeem may in its sole and absolute discretion elect to receive a Redemption Note, in lieu of a cash payment, for the entire amount of proceeds otherwise payable with respect to such shares that were to be redeemed (the shares that have not been redeemed for cash, after giving effect to the foregoing proviso, are referred to as the “Unredeemed Shares”). For purposes of any consent or approval required under the Certificate of Determination, including Subsections 3.3 and 3.4, Unredeemed Shares shall be deemed to be outstanding. Each Redemption Note shall accrue interest at a rate of 8% per annum (whether or not declared), which shall compound annually. The Corporation shall pay the Redemption Notes, pro rata among the holders thereof based on the balance then outstanding, immediately out of funds legally available therefore. In the event of any liquidation, dissolution or winding up of the Corporation or any Deemed Liquidation Event while the Redemptions Notes are outstanding, holders of the Redemption Notes shall be entitled to receive the greater of (i) an amount that is not less than what they would have otherwise received had they held all Unredeemed Shares of Series B Preferred Stock at the time of the Deemed Liquidation Event, and (ii) the face value of the Redemption Notes (together with accrued interest thereof), such amount to be paid pari passu with the holders of the Series B Preferred Stock in accordance with Subsection 2.1.

6.2 Surrender of Certificates; Payment. On or before the Redemption Date, each holder of shares of Series B Preferred Stock to be redeemed on the Redemption Date, unless such holder has exercised his, her or its right to convert such shares as provided in Section 4, shall surrender the certificate or certificates representing such shares (or, if such registered holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate) to the Corporation, 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. In the event less than all of the shares of Series B Preferred Stock represented by a certificate are redeemed (including shares of Series B Preferred Stock for which the Redemption Price has not yet been paid), a new certificate representing the unredeemed shares of Series B Preferred Stock shall promptly be issued to such holder.

6.3 Rights Subsequent to Redemption. If the Redemption Notice shall have been duly given, and if on the applicable Redemption Date the Redemption Price payable upon redemption of the shares of Series B Preferred Stock to be redeemed on such Redemption Date is paid or tendered for payment or deposited with an independent payment agent so as to be available therefor, then notwithstanding that the certificates evidencing any of the shares of Series B Preferred Stock so called for redemption shall not have been surrendered, dividends with respect to such shares of Series B Preferred Stock shall cease to accrue after such Redemption Date and all rights with respect to such shares shall forthwith after the Redemption Date terminate, except only the right of the holders to receive the Redemption Price without interest upon surrender of their certificate or certificates therefor.

6.4 Determination of Legally Available Funds. In any determination of funds legally available for the redemption of shares pursuant to this Section 6, the Corporation shall at

all times act in good faith in the determination of such amount including, without limitation, retaining proper valuation experts and revaluing the Corporation’s statutory surplus, if appropriate.

6.5 No Other Redemption. In no event shall the Corporation redeem any other of its securities while any shares of Series B Preferred Stock or Redemption Notes are outstanding.

7. Redeemed or Otherwise Acquired Shares. Any shares of Series B Preferred Stock that are redeemed or otherwise acquired by the Corporation or any of its subsidiaries shall be automatically and immediately cancelled and retired and shall not be reissued, sold or transferred. Neither the Corporation nor any of its subsidiaries may exercise any voting or other rights granted to the holders of Series B Preferred Stock following redemption.

8. Waiver. Any of the rights, powers, preferences and other terms of the Series B Preferred Stock set forth herein may be waived on behalf of all holders of Series B Preferred Stock by the affirmative written consent or vote of the holders of at least a majority of the shares of Series B Preferred Stock then outstanding.

9. Notices. Any notice required or permitted by the provisions of this Certificate of Determination to be given to a holder of shares of Series B Preferred Stock shall be mailed, postage prepaid, to the post office address last shown on the records of the Corporation, or given by electronic communication in compliance with the provisions of the General Corporation Law, and shall be deemed sent upon such mailing or electronic transmission.

Signature Page to Certificate of Determination to Follow

IN WITNESS WHEREOF, the undersigned have executed this Certificate of Determination on November 2, 2007.


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		Chief Executive Officer and President

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		Chief Financial Officer and Secretary

Each of the undersigned declares under penalty of perjury under the laws of the State of California that the matters contained in the foregoing certificate are true and correct of their own knowledge.


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AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
PLANET BIOPHARMACEUTICALS, INC.

(Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware)

Planet Biopharmaceuticals, Inc., a corporation organized and existing under and by virtue of the provisions of the General Corporation Law of the State of Delaware (the “General Corporation Law”),

DOES HEREBY CERTIFY:

1. That the name of this corporation is Planet Biopharmaceuticals, Inc., and that this corporation was originally incorporated pursuant to the General Corporation Law on September 6, 2007 under the name Planet Biopharmaceuticals, Inc.

2. That the Board of Directors duly adopted resolutions proposing to amend and restate the Certificate of Incorporation of this corporation, declaring said amendment and restatement to be advisable and in the best interests of this corporation and its stockholders, and authorizing the appropriate officers of this corporation to solicit the consent of the stockholders therefor, which resolution setting forth the proposed amendment and restatement is as follows:

RESOLVED, that the Certificate of Incorporation of this corporation be amended and restated in its entirety to read as follows:

FIRST: The name of this corporation is Planet Biopharmaceuticals, Inc. (the “Corporation”).

SECOND: The address of the registered office of the Corporation in the State of Delaware is Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, County of New Castle and the name of its registered agent at such address is The Corporation Trust Company.

THIRD: The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law.

FOURTH: The total number of shares of all classes of stock which the Corporation shall have authority to issue is (i) [to be determined by Board prior to filing, but not less than 15,000,000] shares of Common Stock, $.01 par value per share (“Common Stock”), and (ii) 5,000,000 shares of Preferred Stock, $0.1 par value per share (“Preferred Stock”).

The following is a statement of the designations and the powers, privileges and rights, and the qualifications, limitations or restrictions thereof in respect of each class of capital stock of the Corporation.

A. COMMON STOCK

1. General. The voting, dividend and liquidation rights of the holders of the Common Stock are subject to and qualified by the rights, powers and preferences of the holders of the Preferred Stock set forth herein; provided, however, that, except as otherwise required by law, holders of Common Stock, as such, shall not be entitled to vote on any amendment to the Certificate of Incorporation that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected Series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to the Certificate of Incorporation or pursuant to the General Corporation Law. The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of shares of capital stock of the Corporation representing a majority of the votes represented by all outstanding shares of capital stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the General Corporation Law.

2. Voting. The holders of the Common Stock are entitled to one vote for each share of Common Stock held at all meetings of stockholders (and written actions in lieu of meetings). There shall be no cumulative voting.

B. PREFERRED STOCK

1. Issuance and Reissuance.

Preferred Stock may be issued from time to time in one or more series, each of such series to consist of such number of shares and to have such terms, rights, powers and preferences, and the qualifications and limitations with respect thereto, as stated or expressed herein.

C. SERIES B PREFERRED STOCK

5,000,000 shares of the authorized and unissued Preferred Stock of the Corporation are hereby designated “Series B Preferred Stock”with the following rights, preferences, powers, privileges and restrictions, qualifications and limitations. Unless otherwise indicated, references to “Sections” or “Subsections” in this Part C of this Article Fourth refer to sections and subsections of Part C of this Article Fourth.

1. Dividends.

issuance of any shares of Series B Preferred Stock at a rate per annum of $0.48 per share of Series B Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to Series B Preferred Stock) (the “Series B Dividend Preference”). Except as contemplated by the following sentence, the Series B Dividend Preference shall only be paid in the event of (i) any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, or Deemed Liquidation (as defined in Subsection 2.3.1), (ii) upon any redemption pursuant to Section 6, or (iii) the closing of the sale of shares of Common Stock to the public (but not including a Qualified IPO (as defined in Section 5.1) that occurs within eighteen months of the date hereof). Further, the Corporation shall not declare, pay or set aside any dividends on shares of any other class or series of capital stock of the Corporation (other than dividends on shares of Common Stock payable solely in shares of Common Stock) unless (i) the holders of the Series B Preferred Stock then outstanding shall first receive the Series B Dividend Preference and (ii) after payment of the Series B Dividend Preference the remainder of such dividends are declared or paid pro rata among the holders of the Preferred Stock and Common Stock on a per share basis (as if all shares of Preferred Stock had been converted into Common Stock immediately prior to the payment of such dividends) (such amount payable to the holders of the Series B Preferred, the “Series B Dividends”). At the option of each holder of Series B Preferred Stock, any Series B Dividends that become payable hereunder shall be paid in either (i) cash or (ii) shares of Common Stock (based on the then fair market value of the Common Stock, as determined in good faith by the Board of Directors (including at least one Series B Director (as defined in Subsection 3.2), if then serving on the Board of Directors) and the aggregate amount of the Series B Dividend payable to such holder). The “Series B Original Issue Price” shall mean $6.00 per share, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series B Preferred Stock. Notwithstanding the foregoing, in the event that the Corporation determines, subject to Section 3.3 and without limitation to Section 2, including Section 2.3, to distribute the proceeds (cash or otherwise) resulting from any sale or other transfer of its securities or sale, license and/or other transfer of its assets (other than any sale, license or other transfer of its assets effected in the ordinary course of business of the Corporation for which the Corporation is not required to obtain any consent pursuant to Section 3.3), the proceeds resulting therefrom (including in respect of any ongoing payments, such as a royalty or milestone payment) shall be distributed in accordance with Sections 2.1 and 2.2, and not this Section 1.

2. Liquidation, Dissolution or Winding Up; Certain Mergers, Consolidations and Asset Sales.

such liquidation, dissolution or winding up of the Corporation, the assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the holders of shares of Series B Preferred Stock the full amount to which they shall be entitled under this Subsection 2.1, the holders of shares of Series B Preferred Stock shall share ratably in any distribution of the assets available for distribution in proportion to the respective amounts which would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full. Notwithstanding the foregoing, any payment payable pursuant to this Subsection 2.1 shall be pari passu with any payment payable to the holders of Redemption Notes (as defined Subsection 6.1) pursuant to Subsection 6.1 upon any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, or any Deemed Liquidation Event.

2.2 Distribution of Remaining Assets. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, after the payment of all preferential amounts required to be paid to the holders of shares of Series B Preferred Stock pursuant to Subsection 2.1, the remaining assets of the Corporation available for distribution to its stockholders shall be distributed among the holders of the shares of Series B Preferred Stock and Common Stock, pro rata based on the number of shares held by each such holder, treating for this purpose all such securities as if they had been converted to Common Stock pursuant to the terms of the Certificate of Incorporation immediately prior to such dissolution, liquidation or winding up of the Corporation. The aggregate amount which a holder of a share of Series B Preferred Stock is entitled to receive under Subsections 2.1 and 2.2 is hereinafter referred to as the “Series B Liquidation Amount”; provided, however, if the Series B Liquidation Amount exceed the sum of (x) $21.00 (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series B Preferred Stock) per share of Series B Preferred Stock plus (y) any Series B Dividends accrued but unpaid thereon (determined on a per share basis) (the sum of (x) and (y), the “Liquidation Conversion Amount”), then the holders of outstanding shares of Series B Preferred Stock shall instead receive the amount such holder of Series B Preferred Stock would have received if the shares of Series B Preferred Stock were converted to shares of Common Stock prior to the Liquidation (but in no event less than the Liquidation Conversion Amount).

2.3 Deemed Liquidation Events.

2.3.1 Definition. Each of the following events shall be considered a “Deemed Liquidation Event” unless the holders of sixty percent (60%) of the outstanding shares of Series B Preferred Stock elect otherwise by written notice sent to the Corporation at least five (5) days prior to the effective date of any such event:

(a) a merger or consolidation in which

	(i)		the Corporation is a constituent party or

	(ii)		a subsidiary of the Corporation is a constituent party and the Corporation issues shares of its capital stock pursuant to such merger or consolidation,

except any such merger or consolidation involving the Corporation or a subsidiary in which the shares of capital stock of the Corporation outstanding immediately prior to such merger or consolidation continue to represent, or are converted into or exchanged for shares of capital stock that represent, immediately following such merger or consolidation, at least a majority, by voting power, of the capital stock of (1) the surviving or resulting corporation or (2) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation; or

(c) any other transaction or series of related transactions in which at least 60% of the equity or voting power of the capital stock of the Corporation is transferred.

2.3.2 Effecting a Deemed Liquidation Event. The Corporation shall not have the power to effect a Deemed Liquidation Event unless (i) the agreement relating to such transaction provides that the consideration payable to the stockholders of the Corporation shall be allocated among the holders of capital stock of the Corporation in accordance with Subsections 2.1 and 2.2 or (ii) the holders of both (A) at least sixty percent (60%) of the then outstanding shares of Series B Preferred Stock and (B) the aggregate principal amount of any then outstanding Redemption Notes, specifically approve (whether at a duly called meeting of the Series B Preferred Stockholders or by a valid written consent in lieu of a meeting) the allocation of such consideration in a manner different from that provided in Subsections 2.1 and 2.2.

Stock, voting together as a single class, notify the Board of Directors within fifteen (15) days after receiving from the Corporation written notification of the determination of such fair market value that they disagree with such determination, the Board of Directors and the holders of a majority of the then outstanding shares of Series B Preferred Stock shall have thirty (30) days to agree upon a fair market value of the relevant property. If, by the end of such thirty (30) day period no agreement is reached as to the proper fair market value, the fair market value shall be undertaken by an independent appraiser to be selected jointly by the Corporation and the holders of a majority of the then outstanding shares of Series B Preferred Stock with the fees paid by the Corporation. Absent such an agreement, the appraiser shall be selected by the American Arbitration Association. Any securities to be distributed to stockholders in shall be valued as follows:

(i) Valuation of Securities Subject to Investment Letter. Securities not subject to investment letter or other similar restrictions on free marketability:

3. Voting.

3.2 Election of Directors. The Board of Directors shall be composed of five members; provided that at the election of holders of a majority of the outstanding Series B Preferred (the “Board Expansion Right”), the Board of Directors shall be increased by two members (the “Additional Series B Directors”), for a total of seven members. The holders of record of the shares of Series B Preferred Stock, exclusively as a separate class, shall be entitled to elect two directors of the Corporation (or four directors in the event that they exercise their Board Expansion Right) (including any Additional Series B Directors, the “Series B Directors”), and the holders of record of the shares of Common Stock and Series B Preferred Stock, voting together, shall be entitled to elect three directors of the Corporation. Any director elected as provided in the preceding sentences may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of Series B Preferred Stock or Common Stock, as the case may be, fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 3.2, then any directorship not so filled shall remain vacant until such time as the holders of the Series B Preferred Stock or Common Stock, as the case may be, elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Series B Preferred Stock), exclusively and voting together as a single class, shall be entitled to elect the balance of the total number of directors of the Corporation. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 3.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 3.2.

3.3 Series B Preferred Stock Protective Provisions. In addition to any other consent required by law, at any time when shares of Series B Preferred Stock and/or Redemption Notes are outstanding, the Corporation shall not, either directly or indirectly by amendment, merger, consolidation or otherwise, do any of the following without the written consent or affirmative vote of the holders of sixty percent (60%) of the then outstanding shares of Series B Preferred Stock (including any Unredeemed Shares (as defined in Subsection 6.1) as if held instead of Redemption Notes), given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class: