EFTA01113081.pdf

SCHEDULE OF EXCEPTIONS In connection with that certain Series 5 Preferred Stock Purchase Agreement dated as of June 9, 2011, by and among AliphCom (the "Company") and the persons and entities listed on the Schedule of Purchasers attached thereto (the "Agreement "), the Company hereby delivers this Schedule of Exceptions to the Company's representations and warranties given in the Agreement. This Schedule of Exceptions and the information and disclosures contained herein are intended only to qualify and limit the representations, warranties and covenants of the Company contained in the Agreement, and shall not be deemed to expand in any way the scope or effect of any of such representations, warranties or covenants. The section numbers in this Schedule correspond to the section numbers in the Agreement; provided, however, that any information disclosed herein under any section number shall be deemed to be disclosed and incorporated in any other section of the Agreement where such disclosure would be appropriate and reasonably apparent. Disclosure of any information or document herein is not a statement or admission that it is material or required to be disclosed herein. References to any document do not purport to be complete and are qualified in their entirety by the document itself. Capitalized terms used but not defined herein shall have the same meanings given them in the Agreement. 3.2 Subsidiaries. The Company has a wholly-owned subsidiary in the United Kingdom, Aliph Limited. In anticipation of a future reincorporation to Delaware, the Company formed a wholly owned subsidiary in Delaware in 2008, Aliph, Inc., which has no assets. The Company is in the process of establishing a Wholly-Foreign-Owned Entity ("WFOE") in Kunshan City, China, for the purpose of employing staff and conducting product development, manufacturing and operations support, sales and marketing activity in China. The Company expects the WFOE to be established in the third quarter of 2011. On February 9, 2011, the Company acquired all of the outstanding membership units of YiqYaq LLC, a California limited liability company (the "YiqYaq Acquisition"). On February 9, 2011, the Company acquired all of the issued and outstanding shares of Togeni, Inc., a Delaware corporation (the "Togeni Acquisition"). 3.3 Capitalization. (a) Due to the exercise of options or warrants outstanding as of the date of the Agreement during the period between the date of the Agreement and the date of the Initial Closing, the capitalization numbers set forth in Section 3.3 of the Agreement may not be accurate as of the date of the Initial Closing. (c) 1067404 v5/SF 1 EFTA01113081 Pursuant to a certain letter agreement, dated as of August 29, 2007, by and between Kindred Partners, LLC ("Kindred") and the Company (as amended from time to time, the "Kindred Agreement"), the Company has agreed to issue equity to Kindred or an affiliate of Kindred equal to 1112th of the stock and/or stock options granted to certain persons hired by the Company that were sourced by Kindred. See the disclosure in 3.20 below regarding the Acceleration Provisions (as defined below) and acceleration to non-employee directors and Board advisors. As of June 3, 2011, the Company expects the Board will approve the following proposed option grants at its next meeting (following a third party appraisal of the value of the Company's Common Stock): Vesting Name of Employee or # of Commencement Proposed Option Contractor Type Options Date Grantee Fass, Jason Employee ISO 20,000 04/18/11 Buck, Billie Employee ISO 10,000 01/31/11 Bosson, Lewis Employee ISO 25,000 04/18/11 Kavrell, Hannah Employee ISO 4,000 04/25/11 Allen, Erica Employee ISO 3,500 04/25/11 Kikuchi, Toshi Employee ISO 45,000 05/02/11 Nadar, Prakash Employee ISO 15,000 05/04/11 Hugo, Dan Employee ISO 25,000 05/09/11 Rhuberg, Adam Employee ISO 25,000 05/09/11 Duran, Melissa Employee ISO 5,000 05/09/11 Middleton, Christian Employee ISO 65,000 05/12/11 Callender, Robin Employee ISO 25,000 05/16/11 Wei, Ed Employee ISO 60,000 05/23/11 Ivie, Chad Employee ISO 20,000 05/23/11 Mena, Oscar Employee ISO 40,000 05/23/11 Gin, Shauna Employee ISO 5,000 05/23/11 Jordan, Stephen Employee ISO 15,000 5/25/2011 Baillie, Cameron Employee ISO 25,000 5/31/2011 Duncan, Charles Employee ISO 40,000 6/1/2011 Herr, Richard Employee ISO 15,000 6/1/2011 Harris, Laurie Employee ISO 15,000 6/1/2011 3.5 Litigation. The Company is engaged in litigation involving Elizabeth Bastiaanse Hamren, the Company's former Vice President of Product Management and Marketing. The Company is both pursuing 1067404 v5/SF 2 EFTA01113082 claims against Hamren, and defending against cross-claims she has asserted against the Company, as described below. Aliph v. Hamren — On June 26, 2009, the Company filed an action against Hamren for misappropriation of the Company's trade secrets, in the California Superior Court, County of San Francisco, Case No. CGC-09-489870 (the "Trade Secrets Action"). The Complaint alleges Hamren retained, without authorization, various types of Company trade secret information, including but not limited to valuable marketing information, and was in a position to improperly use such information in connection with her work for Plantronics, Inc., a direct competitor to the Company. The Trade Secrets Action contains claims for misappropriation of trade secrets, breach of contract, breach of the implied covenant of good faith and fair dealing, violation of California Penal Code section 502(c), and breach of fiduciary duty. On January 15, 2010, the Company filed a First Amended Complaint in the Trade Secrets Action, alleging the same claims listed above, and adding new allegations that Hamren used or disclosed the Company's trade secrets and/or confidential information in connection with her work for Plantronics as a consultant and subsequently as an employee. The First Amended Complaint requests an unspecified amount of damages, a constructive trust, injunctive relief and attorneys fees. Hamren filed an Answer to the First Amended Complaint, generally denying the allegations therein and asserting various defenses. Hamren v. Aliph — On September 18, 2009, Hamren filed a cross-complaint against the Company in the same Superior Court action as the Trade Secrets Action, alleging claims arising from her employment with the Company and termination of employment, which was effective December 31, 2008 (the "Employment Action"). The Cross-Complaint alleged causes of action for sex discrimination; hostile work environment sexual harassment; retaliation; breach of contract for failing to pay a bonus, failing to accelerate unvested stock option shares upon Hamren's employment termination, and terminating Hamren's employment to prevent her from further vesting in such option; and wrongful termination in violation of public policy. In response to the Company's demurrers to the Cross-Complaint and the Court's rulings thereon, Hamren filed a First Amended Cross-Complaint. The Court sustained without leave to amend the Company's demurrer to Hamren's wrongful termination claim in the First Amended Cross-Complaint. Hamren subsequently filed a Second Amended Cross-Complaint, after the Court had twice sustained (with leave to amend) the Company's demurrers to Hamren's sex harassment claim. The Court overruled the Company's demurrer to the sex harassment claim in the Second Amended Cross-Complaint. The Second Amended Cross-Complaint requests an unspecified amount of damages, vesting of certain unvested stock option shares, injunctive relief and attorneys fees. The Company filed an Answer to the Second Amended Cross-Complaint, generally denying the allegations therein and asserting various defenses. The parties have engaged in paper discovery in the Trade Secrets and Employment Actions, and the Company has also issued document subpoenas to third-party Plantronics in the Trade Secrets Action as well as to three third-party marketing vendors of Plantronics. The parties have taken five depositions to date. The parties have scheduled a mediation for the Trade Secrets and Employment Actions for July 11, 2011, and discovery in both actions is currently on hold until 1067409 v5/SF 3 EFTA01113083 the mediation occurs. In light of the pending mediation and at the parties' request, the court continued the trial date to February 6, 2012. Plantronics v. Aliph (trade secrets claim) — The Company recently settled a trade secrets claim filed by Plantronics in 2009 (the "Plantronics Settlement"). Plantronics claimed that the Company had misappropriated trade secrets, including information relating to engineering development and manufacturing processes. The parties had engaged in substantial paper discovery, but no depositions had yet been taken and no substantive motions had been filed. The terms of the settlement are confidential. Plantronics v. Aliph (patent infringement claim) — In January 2009, Plantronics filed a patent infringement claim against the Company in the Eastern District of Texas. The single patent at issue claims an ear bud for headset stabilization in the ear. The case was transferred to the Northern District of California (Plantronics v. Aliph, Case No. 3:2009-CV-01843). In November 2009, the case was stayed pending reexamination of the patent. The patent recently issued from reexamination and the case began procedure in Spring 2011, commencing with claim construction procedure. The parties are engaging in paper discovery; depositions are expected to commence in July 2011. Claim construction is set for September 2011. Trial is set for Spring 2012. Wi-LAN, Inc. v. Acer, Inc.- In January 2010, Wi-LAN commenced a patent infringement action in the Eastern District of Texas against a number of defendants, including the company and its chip supplier CSR alleging infringement of certain patents held by Wi-LAN (Wi-LAN, Inc. v. Acer, Inc., Case No. 10-CV- 00124). Subsequently Wi-LAN sent correspondence to the Company alleging that the Company's products infringed on the same patents. The Company filed a declaratory judgment action in the US District Court for the Northern District of California asserting the invalidity of the patents held by Wi-LAN (Aliphcom v. Wi-LAN, Inc., Case No. CV-10-02337). The action filed by the Company was subsequently transferred to the Eastern District of Texas to be consolidated with the already pending action. The Company has entered into an indemnification agreement with Cambridge Silicon Radio ("CSR"), the manufacturer of bluetooth chips in the Company's products, with respect to this action (the "CSR Indemnification Agreement"). Wi-LAN has entered a settlement agreement with CSR. The settlement agreement terms extend to protect CSR's customers. All claims asserted by and against the Company have been dismissed. Aliph v. MyTalk — In January 2011, the Company filed a declaratory judgment action in the Northern District of California (Aliphcom v. MyTalk, Case No. CIO-04918 EDL) relating to a third party's purported trademark rights with respect to the "MyTalk" mark. MyTalk answered the complaint in February 2011 asserting counterclaims including trademark infringement. In March 2011, the 1067404 v5/SF 4 EFTA01113084 parties mediated this matter but did not reach a settlement. The Company has served written discovery and document requests on the defendant. No other procedure beyond initial pleading has yet taken place. Further mediation is anticipated in Fall 2011. 3.7 Title to Properties; Liens and Encumbrances. The Company has a capital lease with Bank of America Leasing of approximately $220,000 for its Oracle ERP license entered into in 2008. As of June 2, 2011 the lease payable balance is less than $21,421. The Company entered into a loan agreement with Wells Fargo Bank NA on November 29, 2010 (the "Wells Fargo Loan Agreement") for a Standby Letter of Credit. The Standby Letter of Credit is secured by a money market account held by the Company. In connection with the Wells Fargo Loan Agreement the Company entered into a Security Agreement with Wells Fargo Bank NA on November 29, 2010. There are currently two outstanding California UCC financing statements, filed by Dell Financial Services L.L.C. and US Bancorp, which have been provided to counsel for the Purchasers. Pursuant to the DCL Contract Services Agreement, dated as of August 5, 2009 with DisCopyLabs, Inc. (the "DCL Contract"), DisCopyLabs has a warehouse lien on any and all of the Company's property that is stored with DisCopyLabs for storage and other charges, costs and expense relating to such property. 3.8 Financial Statements. The Financial Statements for 2008 and 2009 are currently being audited by Pricewaterhouse Coopers and are therefore in draft form and subject to change. The Company's 2010 financial statements have not been audited and are not entirely GAAP compliant. Final GAAP entries to the 2010 financials will be completed as part of the audit scheduled for the middle of 2011. Modifications may be made to the Financial Statements as more data becomes available and further investigations are made. Although certain aspects of the Financial Statements are currently in draft form, to the best knowledge of the Company no future adjustments or modifications to the Financial Statements will materially adversely affect the financial position of the Company's business. [3.9 Changes.] 3.11 Status of Proprietary Assets. (a) 1067409 v5/SF 5 EFTA01113085 Reference is made to the disclosures in Section 3.11(b) of this Schedule of Exceptions. (h) The Company received letters alleging that the Company was infringing on the "MyTalk" mark, which led to the Aliph v. MyTalk action disclosed in Section 3.5 of this Schedule of Exceptions. See the two Plantronics v. Aliph matters disclosed in Section 3.5 of this Schedule of Exceptions. (c) The following former employees, officers and/or consultants of the Company have not entered into proprietary information and inventions assignment agreements with the Company: Dinesh Raghavan, Christina Boyle, John McKenna, Dmitri Krakovsky, Andy Sims, James Russell, Edmund Moulton, Gerald Durand, Ginger Holt, James Carol, John Holzichler and Penny Yao. None of such former employees were involved in the creation of Proprietary Assets (other than with respect to copyrightable works of authorship developed within the scope and during the period of their employment with the Company). None of such former consultants were involved in the creation of Proprietary Assets. Elizabeth Hamren did not enter into a proprietary information and inventions assignment agreement with the Company. Five employees, Greg Burnett, Michael Luna, Richard Drysdale, John O'Brien and Rich Coulter, and one former employee, Gordon Simmons, have excluded prior inventions from their proprietary information and inventions assignment agreements with the Company. Such excluded prior inventions are not materially related to the Proprietary Assets, other than patents identified by Greg Burnett and in existence as of the entry by Burnett into his agreement in May 2003. However, none of Bumett's excluded patents cover the Company's commercial products or current technology. Clayton Williamson, Remi Adams, Christopher Anderson, Derek Barrentine, Aditya Bhasin, Roderic Campbell, Jason Fass, Steve Forestieri, Scott Fullam, Travis Geiselbrecht, Laurie Harris, Joost Kemink, Bernard Kerr, Joel Krauska, Edmund Ku, Sam Lee, Christopher McKillop, Alex Mille, Skip Orvis, Wayne Ouchida, Loren Roy, Corey Tabaka, Anil Ubale and Chris Wiebe have excluded prior inventions from their proprietary information and inventions assignment agreements with the Company. Such excluded prior inventions are not incorporated in any of the Company's current products or technology. The Company entered into two consulting agreements, the first dated as of September 18, 2005, with Andrew Einaudi, and the second dated as of January 3, 2007, with Richard Drysdale (d/b/a Pronovus Consulting LLC). Neither of these agreements contain a provision whereby the consultant assigns intellectual property rights to the Company. Andrew Einaudi was not involved in the creation of any Propriety Assets, and Richard Drysdale later assigned any inventions to the Company in his proprietary information and inventions agreement. In addition, Pronovus Consulting LLC executed a confirmatory assignment, dated March 3, 2011, in favor of the Company. 1067404 v5/SF 6 EFTA01113086 (d) The Company has the following issued patent and pending patent applications: ISSUED PATENTS: United States Detecting Voiced and Unvoiced Speech Using Both Acoustic and Nonacoustic Sensors. Reference P009. Application Number: 10/159,770. Acoustic Vibration Sensor. Reference P028. Application Number : 10/769,302. Fabric Case Carry Accessory For A Mobile Phone Device, Patent No. D609901 Fabric Pouch Carry Accessory For A Mobile Phone Device. Patent No. D6I0579 Hard Case Carry Accessory For A Mobile Phone Device, Patent No. D609900 Compact Hard Case Carry Accessory For A Mobile Phone Device, Patent No. D620247 Headset, Patent No. D632674 Headset, Patent No. D632675 Headset, Patent No. D632676 Earpiece Assembly, Reference D001. Application Number: 29/299,133. Earpiece. Reference D002. Application Number: 29/299,134. Earpiece Shield. Reference D003. Application Number: 29/299,135. Ear Loop. Reference D004. Application Number: 29/299,139. Back Plate with Fabric Pouch for a Mobile Phone Device. Reference 027673-002500US. Application Number: 29/333,430. China: Earpiece Assembly. Reference DOO1CN. Application Number: 200830129807.0. 1067404 v5/SF 7 EFTA01113087  Earpiece. Reference DOO2CN. Application Number: 200830129806.6. Earpiece Shield. Reference D003CN. Application Number: 200830129805.1. Ear Loop. Reference DOO4CN. Application Number: 200830129808.5. European Union Earpiece Assembly. Reference DOOIEM. Application Number: 0009562300001. Earpiece. Reference D002EM. Application Number: 0009562300002. Earpiece Shield. Reference D003EM. Application Number: 0009562300003. Earpiece Loop. Reference D004EM Application Number: 0009562300004. Jawbone 11 Headset Textured Design. Reference 027673-010601EU. Application Number: 1657990-0001. India Method and Apparatusfor Removing Noise from Electronic Signals. Reference P011IN. Application Serial No. 0032/DELNP/03. Detecting Voiced and Unvoiced Speech Using Both Acoustic and Nonacoustic Sensors. Reference P009IN. Application Serial Number: 1982/DELNP/03. Taiwan Voice Activity Detector (VAD) —Based Multiple-Microphone Acoustic Noise Suppression. Reference POIOXTW. U.S. Application Number: 10/667,207. Korea Detecting Voiced and Unvoiced Speech using Both Acoustic and Nonacoustic Sensors. Reference P009ICR. Application Number: 2003-7015511. Method and Apparatusfor Removing Noise From Electronic Signals. Reference P027KR. Application Number: 2004-7007752. Japan Earpiece Assembly. Reference D0001). Application Number: 2008-15644. Earpiece. Reference D002.IP. Application Number: 2008-15645. 1067409 v5/SF 8 EFTA01113088 PATENT APPLICATIONS: United States Microphone Array with Rear Venting. Reference P034. Application Number: 12/163,952. Microphone Array with Rear Venting. Reference P034D1. Application Number: 12/163,617. Microphone Array with Rear Venting. Reference P034D2. Application Number: 12/163,647. Microphone Array with Rear Venting. Reference P034D3. Application Number: 12/163,675. Dual Omnidirectional Microphone Array (DOMA). Reference P035. Application Number: 12/139,333. Dual Omnidirectional Microphone Array (DOMA). Reference P035D1. Application Number: 12/139,344. Dual Omnidirectional Microphone Array (DOMA). Reference P035D2. Application Number: 12/139,355. Dual Omnidirectional Microphone Array (DOMA). Reference P035D3. Application Number: 12/139,361. Wireless Handsfree Headset Method and System with Handsfree Applications. Reference P037. Application Number: 12./039,718. Acoustic Voice Activity Detection (AVAD)for Electronic Systems. Reference P039. Application Number: 12/606,140. Acoustic Voice Activity Detection (AVAD)for Electronic Systems. Reference P039D1. Application Number: 12/606,146. Vibration Sensor and Acoustic Voice Activity Detection System (VADS)for Use with Electronic Systems. Reference P040. Application Number: 12/772,947. Wind Suppression/Replacement Component for Use with Electronic Systems. Reference P041. Application Number: 12/772,963. 1067404 v5/SF 9 EFTA01113089  Wind Suppression/Replacement Component for Use with Electronic Systems. Reference P041D1. Application Number: 12/772,975. Calibrating a Dual Omnidirectional Microphone Array (DOMA). Reference P042. Application Number: 12/826,643. Calibrated Dual Omnidirectional Microphone Array (DOMA). Reference P042D1. Application Number: 12/826,658. Apparatus and Methodfor Using Speech Detection to Improve Operation of Voice Recognition User Interface. Reference 027673-001110US. Application Number: 12/649,170. Headset and Audio Gateway Systemfor Execution of Voice Input Driven Applications. Reference 027673-001600US. Application Number: 12/354,689. Spatial User Interface for Audio System. Reference 027673-002110US. Application Number: 12/756,051. Pipe Calibration of Omnidirectional Microphones. Reference P043P. Application Number: 61/316,269. Wireless Conference Call Telephone. Reference P044P. Application Number: 61/364,675. Calibration Headset Clamping System. Reference P045P. Application Number: 61/373,071. Dynamic Enhancement of Audio (DAE) in Headset Systems. Reference P046P. Application Number: 61/431,395. Improved Acoustic Voice Activity (AVAD)for Use with Electronic Systems. Reference P047P. Application Number: 61/431,397. System and Methodfor Controlling Access to Network Services using Biometric Authentication. Reference 027673-016800US. Application Number: 61/355,958. Bluetooth Pairing for Networked Devices. Reference 027673-016900US. Application Number: 61/358,610. Headset. Application Number 29/354,212. (Design Patent Application). Headset. Application Number 29/353,843. (Design Patent Application). Headset. Application Number 29/353,844. (Design Patent Application). 1067404 v5/SF 10 EFTA01113090  Headset. Application Number 29/353,846. (Design Patent Application). Headset. Application Number 29/353,847. (Design Patent Application). Speaker. Application Number 29/378,325. (Design Patent Application). Speaker. Application Number 29/378,327. (Design Patent Application). Speaker. Application Number: 29/378,328. (Design Patent Application). Speaker. Application Number: 29/378,329. (Design Patent Application) Dongle. Application Number: 29/377,628. (Design Patent Application). Headset. Application Number: 29/377,627. (Design Patent Application). System and Method of Enabling Additional Functions or Services of Device by Use of Transparent Gateway or Proxy, Serial No. 12886919 Apparatus And Method For Using Speech. Detection To Improve Operation Of Voice Recognition User Intaface, Serial No. 12649170 Headset And Audio Gateway System For Execution Of Voice Input Driven Applications, Serial No. 12354689 Spatial User Interface For Audio System, Serial No. 12756051 Multi-Modal Audio System With Automatic Usage Mode Detection And Configuration Capability, Serial No. 12882482 System And Method For Controlling Access To Network Services Using Biometric Authentication, Serial No. 61355958 Acoustic Transducer Including Airfoil For Generating Sound, Serial No. 61392813 Antenna Optimization Dependent On User Context, Serial No. 61439742 Portion of an Electronic Device (Design Patent Application) Serial No. 29383495 Detecting Voice and Unvoiced Speech Using Both Acoustic and Nonacoustic Sensors. Reference P009C1. Application Number: 11/805,987. Voice Activity Detector (VAD)-Based Multiple-Microphone Acoustic Noise Suppression. Reference POIOX. Application Number: 10/667,207. 1067404 v5/SF II EFTA01113091  Microphone and Voice Activity Detection (VAD) Configurationsfor Use with Portable Communication Systems. Reference P020. Application Number: 10/400,282. Acoustic Vibration Sensor. Reference P028. Application Number: 10/769,302. Noise Suppressing Multi-Microphone Headset. Reference P030. Application Number: 11/199,856. Advanced Speech Encoding Dual Microphone Configuration. Reference P032P. Application Number 60/931,637. Canada: Wireless Handsfree Headset Method and System with Handsfree Applications. Reference 027673-001600CA. International Application Number: PCT/US2009/031195. Headset. Application Number: 136334. (Design Patent Application). Headset. Application Number: 136330. (Design Patent Application). Headset. Application Number: 136332. (Design Patent Application). Headset. Application Number: 136333. (Design Patent Application). Headset. Application Number: 136331. (Design Patent Application). European Union: Dual Omnidirectional Microphone Array. Reference P035P. Application Number 08771095.0. Headset and Audio Gatewayfor Execution of Voice Input Driven Applications. Reference 027673-001600EP. Application Number 09701950.9. Acoustic Voice Activity Detection (AVAD)for Electronic Systems. Reference P039WO. International Application Number: PCT/US2009/062129. Calibrating a Dual Omnidirectional Microphone Array (DOMA). Reference P042WO. International Application Number: PCT/US2010/040501. Spatial User Interface for Audio System. Reference 027673-002110PC. International Application Number: PCT/US2010/030421. 1067404 vSFSF 12 EFTA01113092  System and Method of Enabling Additional Functions or Services of Device by Use of Transparent Gateway or Proxy, Serial No. PCTUS2010049796 Wireless Handsfree Headset Method And System With Handsfree Applications, Serial No. PCTUS2009031195 Multi-Modal Audio System With Automatic Usage Mode Detection And Configuration Capability, Serial No. PCTUS2010049174 Headset (Various Design Patent Applications Covering Jawbone Headset Designs), Serial Nos. 0012267810001, 0012267810002, 0012267810003, 0012267810004, 0012267810005 China: Dual Omnidirectional Microphone Array. Reference P035CN. Application Number 200880103073.6. Microphone and Voice Activity Detection (VAD) Configurationsfor Use with Portable Comnumication Systems. Reference P020CN. International Application Number: PCT/US03/09280. India: Voice Activity Detection (VAD) Devices and Methodsfor Use with Noise Suppression Systems. Reference P015IN. Application Serial Number: 2426/DELNP/2004. Microphone and Voice Activity Detection (VAD) Configurationsfor Use with Portable Comnumication Systems. Reference P020IN. Application Serial Number: 2605/DELNP/2004. Dual Omnidirectional Microphone Array. Reference P035IN. Application Serial Number: 104/DELNP/2010. Japan: Method and Apparatusfor Removing Noise from Electronic Signals. Reference POI1JP. Application Number: 2002-512971. Earpiece Shield. Application Number:15646/2008. (Design Patent Application). Ear Loop. Application Number:15647/2008. (Design Patent Application). Korea: 1067404 v5/SF 13 EFTA01113093  Voice Activity Detection (VAD) Devices and Methodsfor Use with. Noise Suppression Systems. Reference P015KR. Application Number: 2004-7013890. Voice Activity Detection (VAD) Devices and Methodsfor Use with. Noise Suppression Systems. Reference P015KRD1. Application Number: 2010-7028265. Microphone and Voice Activity Detection (VAD) Configurationsfor Use with Portable Communication Systems. Reference P020KR. Application Number 2004- 7015441. Microphone and Voice Activity Detection (VAD) Configurationsfor Use with Portable Communication Systems. Reference P020KRD1. International Application Number: PCT/US2003/009280. Method and Apparatusfor Removing Noise From Electronic Signals. Reference P027KR. International Application Number: PCT/US02/37399. Hong Kong: Dual Omnidirectional Microphone Array. Reference P035HK. Application Number: 10109116.8. TRADEMARKS: The Company has the following issued trade dress, trademarks and trademarks applications pending: Country Trademark Classes App No. Red No. Status Filing Date Issue Date Canada EARCANDY WA 1435661 TMA768172 Registered 04/23/2009 05/31/2010 China EARCANDY 9 7391552 Pending • Pu shed 05113/2009 N/A European Union EARCANDY 9 008242174 008242174 Registered 04/24/2009 11/22/2009 Hong Kong EARCANDY 9 301331289 Pending 04/24/2009 N/A Taiwan EARCANDY 9 98017131 01391805 Registered 04/24/2009 01/01/2010 Canada WINDASSASSIN WA 1433351 N/A Pending -Published 04/032009 1067404 v5/51, 14 EFTA01113094  Country Trademark Classes App No. Reg No. Status Filing Date Issue Date China WINDASSASSIN 9 7329735 Pending - Published 04/16/2009 N/A European Union WINDASSASSIN 9.35. 42 008197519 008197519 Registered 04/03/2009 10/232009 Hong Kong WINDASSASSIN 9 301320236 301320236 Registered 04/07/2009 04/07/2009 Taiwan WINDASSASSIN 9 98014035 01399873 Registered 04/06/2009 03/162010 United Stales of WINDASSASSIN 9 77/723466 Pending - Allowed America 04/27/2009 NA Canada Museum Case Packaging WA 1437730 Pending Design (3-Dimensional) 05/112009 A China MUSEUM CASE 9 7329734 Pending PACKAGING Design (3- 04, 162009 WA Dimensional) Hong Kong MUSEUM CASE 9 301322225 Pending PACKAGING Design (3- 04/09/2009 WA Dimensional) United Stales of MUSEUM CASE 9 77/693761 3884763 Registered America PACKAGING Design (3- 03/18/2009 12/)7/2010 Dimensional) European Union Museum Case Packaging 9. 35. 42 8221856 8221855 Registered (with JAWBONE) 04/162009 11/13/2009 Taiwan Museum Case Packaging 9 99048317 N/A Pending - Awaiting 09/29/2010 examination European Union Museum Case Packaging 9.35. 42 008697484 008697484 Registered Design (3-Dimensional) 11/19/2009 0524:2010 Brazil ALIPH 9 902500368 Pending - Published 04/15/2010 Na Canada ALIPH NA 1434404 TMA767816 Registered 04/14/2009 0626.2010 China ALIPH 9 7329738 Pending 04/16(2009 N/A European Union ALIPH 9. 35. 42 005787321 005787321 Registered 03/262007 02/28/2008 Hong Kong ALIPH 9 301320254 301320254 Registered 04/07/2009 04/07/2009 Taiwan ALIPH 9 98014031 01399870 Registered 04/08/2009 03/162010 United States of ALIPH 9 78/344895 3541713 Registered Amenca 12/23/2003 12/02/2008 1726049 v2MY 15 EFTA01113095  Country Trademark Classes App No. Reg No. Status Filing Date Issue Date Canada ALIPH NA 1458658 NA Pending 11102009 Btazd EARWEAR 9 902500430 NA Pending - Published 04192010 Canada EARWEAR NA 1435298 Pending 0421,2009 NA China EARWEAR 9 7329737 Pending 04,162009 NA European Union EARWEAR 9 006246731 006246731 Registered 0907:2007 0907:2008 Taiwan EARWEAR 9 98014032 01399871 Registered 041062009 03162010 United States of EARWEAR 9 77,268794 3474244 Registered America (Supplemental) 09302007 07,222008 Hong Kong ALIPH EARWEAR 9 301544120 301544120 Registered 02/11,2010 02/11,2010 Australia JAWBONE 9. 42. 45 1398180 NA Pending -Awaiting 12062010 examination Brazti JAWBONE 9 902500627 Pending - Published 04152010 NA Canada JAWBONE N'A 1434405 TMA771142 Registered 041142009 07,052010 China JAWBONE 9 5%0563 5%0563 Registered 03262007 12282009 European Union JAWBONE 9. 35. 42 005787346 005787346 Registered 03262007 03192008 Hong Kong JAWBONE 9 301320272 Pending I 0407:2009 NA Indonesia JAWBONE 9 D00.2010.047587 Pending 12292010 N'A India JAWBONE 9. 42. 45 2063429 Pending 12,062010 NA Japan JAWBONE 9 2007-24017 5195869 Registered 09202007 011092009 Korea (South) JAWBONE 9. 35. 42 45-2010-0004012 Pending 09162010 NA Russian Federation JAWBONE 9. 42. 45 2010739479 Pending 1207,2010 NA 1726049 v2/NY 16 EFTA01113096  Country Trademark Classes App No. Reg No. Status Filing Date Issue Date Taiwan JAWBONE 9 98014034 01399872 Registered 04:082009 03/1612010 United States of JAWBONE 9 78/340835 3046856 Registered Arnerca 12/192003 01/17/2006 Vietnam JAWBONE 9,42. 45 4-2010-26938 Pending 12/21/2010 WA Canada JAWBONE WA 1458657 Pending • Accepted 11/10/2009 WA Indonesia JAWBONE 42 J002010.047581 WA Pending 12/29/2010 Indonesia JAWBONE 45 J002010.047579 Pending 12/29/2010 WA Brad NOISEASSASSIN 9 902500627 Pending - Published 04/1512010 WA Canada NOISEASSASSIN WA 1435306 TMA767590 Registered 04/21/2009 05/21/2010 China NOISEASSASSIN 9 7329736 Pending -Published 04/192009 WA European Union NOISEASSASSIN 9. 35. 42 006221558 006221558 Registered 04/16/2009 12/10/2009 Hong Kong NOISEASSASSIN 9 301320245 301320245 Registered 04/07/2009 04/07/2009 Taiwan NOISEASSASSIN 9 98014036 01399874 Registered 04/08/2009 03/16(2010 United States of NOISEASSASSIN 9 77/459339 3807619 Registered Amerca 04/28/2008 062?.'2010 United States of NOISEASSASSIN 9 77/977808 3694140 Registered America 04/28/2008 10/06/2009 European Union Curved Design 8355323 Pending 06/10/2009 NA United States of Curved Deign 9 77/752166 Pending America 06004/2009 NA Canada Textured Design Trade WA 1441073 Pending Dress 06/10/2009 NA European Union Textured Design Trade 8355331 Pending Dress 06/10/2009 WA United States of JAWBONE 9. 14 77/785787 Pending America 07/21/2009 WA 1726049 v2/NY 17 EFTA01113097  Country Trademark Classes App No. Reg No. Status Filing Date Issue Date United States of JAWBONE 35. 42 77:862971 Pending America 11/022009 NA Canada Jawbone II Headset WA 1467689 Pending Textured Design 01:29:2010 WA United States of Jawbone II Headset 9 77,912073 Pending America Textured Design 01/14:2010 WA United States of JAWBONE KNOW 9. 35. 38.42 771933001 Pending - Allowed America 02/102010 WA United States of The Jawbone Logo 9. 42 85008457 Pending America (MYTALK) 0407:2010 WA China AiLiFu in Chinese 9 8375885 WA Pending Characters 060392010 Braze JAWBONE THOUGHTS 9 830742662 Pending - Published 04328:2010 NA China JAWBONE THOUGHTS 9 Pending -Awaiting 11/18.2010 WA examination European Union JAWBONE THOUGHTS 9.42. 43 009393752 Registered 09.222010 WA Hong Kong JAWBONE THOUGHTS 9.42. 45 301716570 Pending - Published 08,162010 NA Taiwan JAWBONE THOUGHTS 9.42.45 99047069 Pending -Awaiting OS212010 WA examination United States of JAWBONE THOUGHTS 9.42. 45 86042005 Pending America 05,18,2010 NA Brad JAWBONE THOUGHTS 42 830742670 WA Pending - Published 0928.2010 Canada JAWBONE THOUGHTS NA 1501444 Pending 10:272010 WA Chin