Common use of Most Favored Nation Clause in Contracts

Most Favored Nation. During the period from May 23, 2010 through completion of the Second Closing, neither the Company nor the Company Subsidiaries shall enter into any additional agreements with any existing or future investors (including any Purchaser but excluding any Anchor Investor or CapGen) in the Company or any of the Company Subsidiaries that have the effect of establishing rights or otherwise benefiting such investor in a manner more favorable in any material respect to such investor than the rights and benefits established in favor of the Purchasers by this Agreement, unless, in any such case, each Purchaser will be given a copy of such additional agreement and has been offered the opportunity to receive such rights and benefits of such additional agreement within 60 days of the later of the execution of such additional agreement and May 23, 2010. Such Purchaser shall notify the Company in writing, within 30 days after the date it receives a copy of such additional agreement, of its election to receive the rights and benefits set forth therein. For the avoidance of doubt, each Purchaser will receive a copy of each additional agreement agreed to with one or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor or CapGen). Without limiting the foregoing, the Company shall not offer any investors (other than the Anchor Investors or CapGen) in any other capital raising transaction occurring at the same time as the transactions contemplated by this Agreement, terms more favorable, in form or substance, than those offered in connection with the Private Placement, unless the Purchasers are also provided with such terms or have consented thereto in writing; provided, however, that for purposes of this Section 3.12, the Purchasers hereby consent to the Company’s entry into (i) the CapGen Investment Agreement, (ii) the Revised Stock Purchase Agreements, (iii) the letter agreement dated as of the date hereof between the Company and CapGen (and the related agreements attached thereto), (iv) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (v) the letter agreement dated as of the date hereof between the Company and Fir Tree Value Master Fund, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC (collectively, the “Fir Tree Investors”) (the “Fir Tree Investor Letter”), and the terms and conditions thereof in each case in the form previously delivered by the Company to the Purchasers. For the purposes of this Agreement, all parties agree that the terms and conditions of those documents referred to in clauses (i), (ii), (iii), (iv) and (v), of this paragraph, as well as the terms and provisions of (A) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warranties.

Most Favored Nation. During the period from May 23where any monies are owed to the Holder pursuant to this Note, 2010 through completion of if the Second Closing, neither the Company nor the Company Subsidiaries shall enter into any additional agreements with any existing or future investors (including any Purchaser but excluding any Anchor Investor or CapGen) in the Company or any of the Company Subsidiaries that have the effect of establishing rights or otherwise benefiting such investor in a manner more favorable Borrower engages in any material respect future financing transactions with a third party investor, the Borrower will provide the Holder with written notice (the “MFN Notice”) thereof promptly but in no event less than 10 days prior to such investor than closing any financing transactions. Included with the rights and benefits established in favor of the Purchasers by this Agreement, unless, in any such case, each Purchaser will MFN Notice shall be given a copy of all documentation relating to such financing transaction and shall include, upon written request of the Holder, any additional agreement and has been offered information related to such subsequent investment as may be reasonably requested by the opportunity Holder. In the event the Holder determines that the terms of the subsequent investment are preferable to receive such rights and benefits the terms of the securities of the Borrower issued to the Holder pursuant to the terms of the Purchase Agreement, the Holder will notify the Borrower in writing. Promptly after receipt of such additional agreement within 60 days written notice from the Holder, the Borrower agrees to amend and restate the Securities (which may include the conversion terms of this Note), to be identical to the later of instruments evidencing the execution of such additional agreement and May 23, 2010subsequent investment. Such Purchaser shall notify the Company in writing, within 30 days after the date it receives a copy of such additional agreement, of its election to receive the rights and benefits set forth therein. For the avoidance of doubt, each Purchaser will receive a copy of each additional agreement agreed to with one or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor or CapGen). Without limiting Notwithstanding the foregoing, the Company this Section 4.4 shall not offer any investors (other than the Anchor Investors or CapGen) apply in any other capital raising transaction occurring at the same time as the transactions contemplated by this Agreement, terms more favorable, in form or substance, than those offered in connection with the Private Placement, unless the Purchasers are also provided with such terms or have consented thereto in writing; provided, however, that for purposes respect of this Section 3.12, the Purchasers hereby consent to the Company’s entry into (i) the CapGen Investment Agreementan Exempt Issuance, or (ii) an underwritten public offering of Common Stock. “Exempt Issuance” means the Revised issuance of: (a) shares of Common Stock Purchase Agreementsor options to employees, officers, consultants, advisors or directors of the Borrower pursuant to any stock or option plan duly adopted for such purpose by a majority of the members of the Board of Directors or a majority of the members of a committee of directors established for such purpose, (iiib) securities upon the letter agreement dated as exercise or exchange of or conversion of this Note and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date hereof between the Company and CapGen (and the related agreements attached thereto), (iv) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”)hereof, and (vc) the letter agreement dated as securities issued pursuant to acquisitions or strategic transactions approved by a majority of the date hereof between disinterested directors of the Company Borrower, provided that any such issuance shall only be to a Person which is, itself or through its subsidiaries, an operating company in a business synergistic with the business of the Borrower and Fir Tree Value Master Fund, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC (collectively, in which the “Fir Tree Investors”) (the “Fir Tree Investor Letter”), and the terms and conditions thereof Borrower receives benefits in each case in the form previously delivered by the Company addition to the Purchasers. For investment of funds, but shall not include a transaction in which the purposes of this Agreement, all parties agree that the terms and conditions of those documents referred to in clauses (i), (ii), (iii), (iv) and (v), of this paragraph, as well as the terms and provisions of (A) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), shall be deemed Previously Disclosed, as that term Borrower is used herein, including issuing securities primarily for the purposes purpose of modifying the Company’s representations and warrantiesraising capital or to an entity whose primary business is investing in securities.

Most Favored Nation. During the period from May 23, 2010 through completion of the Second Closing, neither the Company nor the Company Subsidiaries shall enter into any additional agreements, or modify any existing agreements or Transaction Documents, including the CapGen Investment Agreement or any other agreements with any existing or future investors (including any Purchaser but excluding any Anchor Investor or CapGen) in the Company or any of the Company Subsidiaries (including any Additional Agreements entered into with the Additional Investors) that have the effect of establishing rights or otherwise benefiting such investor in a manner more favorable in any material respect to such investor than the rights and benefits established in favor of the Purchasers Anchor Investors by this Agreementthe Transaction Documents, unless, in any such case, each Purchaser Anchor Investor will be given a copy of such additional or modified agreement and has been offered the opportunity to receive such rights and benefits of such additional or modified agreement within 60 days of the later of the execution of such additional or modified agreement and May 23, 2010. Such Purchaser Anchor Investor shall notify the Company in writing, within 30 days after the date it receives a copy of such additional or modified agreement, of its election to receive the rights and benefits set forth therein. For the avoidance of doubt, each Purchaser the Anchor Investors will receive a copy of each additional or modified agreement (including any Additional Agreements entered into with any Additional Investors) agreed to with one or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor or CapGen)investors. Without limiting the foregoing, the Company shall not offer any investors (other than in the Anchor Investors Other Private Placements, or CapGen) in any other capital raising transaction occurring at the same time as the transactions contemplated by this Agreement, the Transaction Documents on terms more favorable, in form or substance, than those offered in connection with the Private PlacementInvestment, unless the Purchasers Anchor Investors are also provided with such terms or have has consented thereto in writing; provided, however, that for purposes of this Section 3.123.10, the Purchasers Anchor Investors hereby consent to the Company’s entry into (i) the CapGen Investment Agreement, (ii) the Revised Stock Purchase Agreementsletter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”), (iii) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), (iv) the letter agreement dated as of the date hereof between the Company and CapGen (and the related agreements attached thereto), (ivv) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vvi) the letter agreement dated as of the date hereof between the Company and Fir Tree Value Master Fund, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC (collectively, the “Fir Tree Investors”) (the “Fir Tree Investor Letter”), ) and the terms and conditions thereof in each case in the form previously delivered by the Company to the PurchasersAnchor Investors; provided further, however, that any proposed modification to any Investor Letter from the form of such Investor Letter provided to the Anchor Investors and any proposed modification of such Investor Letter executed as of the date hereof after the date hereof shall be subject to the Anchor Investors’ rights and the Company’s obligations set forth above. For the purposes of this Agreement, all parties agree that the terms and conditions of those documents referred to in clauses (i), (ii), (iii), (iv), (v) and (v), vi) of this paragraph, as well as the terms and provisions of (A) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), paragraph shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warranties.

Most Favored Nation. During the period from May 23, 2010 the date hereof through completion of the Second ClosingRights Offering, neither the Company nor the Company Subsidiaries shall enter into any additional agreements with any existing or future investors (including any Purchaser but excluding any Anchor Investor or CapGenInvestor) in the Company or any of the Company Subsidiaries that have the effect of establishing rights or otherwise benefiting such investor in a manner more favorable in any material respect to such investor than the rights and benefits established in favor of the Purchasers by this Agreement, unless, in any such case, each Purchaser will be given a copy of such additional agreement and has been offered the opportunity to receive such rights and benefits of such additional agreement within 60 days of the later of the execution of such additional agreement and May 23, 2010the date hereof. Such Purchaser shall notify the Company in writing, within 30 days after the date it receives a copy of such additional agreement, of its election to receive the rights and benefits set forth therein. For the avoidance of doubt, each Purchaser will receive a copy of each additional agreement agreed to with one or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor or CapGenInvestor). Without limiting the foregoing, the Company shall not offer any investors (other than the Anchor Investors or CapGenInvestors) in any other capital raising transaction occurring at the same time as the transactions contemplated by this Agreement, terms more favorable, in form or substance, than those offered in connection with the Private Placement, unless the Purchasers are also provided with such terms terms. Notwithstanding the foregoing, each Purchaser acknowledges and agrees that, to the extent the Anchor Investors have been explicitly granted additional or have consented thereto more favorable rights in writing; provided, however, that for purposes the Anchor Investment Agreement (as it exists at the time of execution of this Section 3.12Agreement and as it may exist from time to time through the closing of the Anchor Investment), such Purchaser shall not be entitled to such rights. The Company has no other agreements with the Purchasers hereby consent to the Company’s entry into (i) the CapGen Investment Agreement, (ii) the Revised Stock Purchase Agreements, (iii) the letter agreement dated Anchor Investors as of the date hereof between the Company and CapGen (and the related agreements attached thereto)to their purchase of Common Shares, (iv) the other than that certain fee letter agreement dated as of the even date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (v) the letter agreement dated as of the date hereof between the Company and Fir Tree Value Master Fund, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC (collectively, the “Fir Tree Investors”) (the “Fir Tree Investor Letter”), and the terms and conditions thereof in each case herewith disclosed in the form previously delivered by the Company to the Purchasers. For the purposes of this Agreement, all parties agree that the terms and conditions of those documents referred to in clauses (i), (ii), (iii), (iv) and (v), of this paragraph, as well as the terms and provisions of (A) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warrantiesDisclosure Schedules.

Most Favored Nation. During To the period from May 23, 2010 through completion of the Second Closing, neither extent (a) the Company nor the Company Subsidiaries shall enter enters into any additional agreements amendment to, or modification of, the Other Investment Agreement or any other agreement or arrangement with any existing or future investors (including any Purchaser but excluding any Anchor the Other Investor or CapGen) in the Company or any of its Affiliates (each, an “MFN Party”) as of the Company Subsidiaries that have date hereof, including any side letter or similar arrangement after the date hereof (an “Amended Arrangement”)and (b) such Amended Arrangement has the effect of establishing rights under, or otherwise benefiting such investor altering or supplementing the terms of, the Amended and Restated Certificate of Incorporation or any Other Investment Agreement or any other agreement to which the Company and the Other Investor or any of its Affiliates is a party as of the date hereof, in a manner that would (i) provide the MFN Party with rights that are more favorable in any material respect to such investor than the rights and benefits established of Purchaser, (ii) make any securities issued to any MFN Party Senior Securities (as defined in favor the Series A Certificate of Designations) relative to the Purchasers by this AgreementSeries A Preferred Stock or (iii) make any securities issued to any MFN Party, unlessother than the Series C Preferred Stock, Parity Securities (as defined in the Series A Certificate of Designations), with the Series A Preferred Stock, the Company shall, in any such case, each promptly and in good faith disclose such Amended Arrangement to Purchaser. In connection therewith, Purchaser will shall be given a copy of such additional agreement and has been offered the opportunity to receive such the same rights and benefits of such additional agreement within 60 days of the later of the execution of such additional agreement and May 23, 2010. Such Purchaser shall notify and/or seniority granted by the Company in writingany such Amended Arrangement, whether entered into as of the date hereof or hereafter (in the case of seniority, in a manner that preserves the seniority of the Series A Preferred Stock and the Series C Preferred Stock relative to all other classes of outstanding Capital Stock). Purchaser shall be deemed to reject any such offer, unless, within 30 twenty (20) business days after receiving the date it receives a copy final execution version of such Amended Arrangement, it delivers written notice to the Company accepting some or all of the additional agreementrights offered in such Amended Arrangement. However, if Purchaser accepts any such offer, in whole or in part, the Company shall promptly enter into such agreements, including any relevant amendments or modifications of its election to receive the rights and benefits set forth thereinexisting agreements, which Purchaser may reasonably request. For the avoidance of doubt, each Purchaser will receive a copy nothing herein shall override or otherwise limit any approval rights of each additional agreement agreed to with one or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor or CapGen). Without limiting the foregoing, the Company shall not offer any investors (other than the Anchor Investors or CapGen) in any other capital raising transaction occurring at the same time as the transactions contemplated by this Agreement, terms more favorable, in form or substance, than those offered in connection with the Private Placement, unless the Purchasers are also provided with such terms or have consented thereto in writing; provided, however, that for purposes of this Section 3.12, the Purchasers hereby consent Series A Preferred Stock pursuant to the Company’s entry into (i) the CapGen Investment Agreement, (ii) the Revised Stock Purchase Agreements, (iii) the letter agreement dated as Series A Certificate of the date hereof between the Company and CapGen (and the related agreements attached thereto), (iv) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (v) the letter agreement dated as of the date hereof between the Company and Fir Tree Value Master Fund, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC (collectively, the “Fir Tree Investors”) (the “Fir Tree Investor Letter”), and the terms and conditions thereof in each case in the form previously delivered by the Company to the Purchasers. For the purposes of this Agreement, all parties agree that the terms and conditions of those documents referred to in clauses (i), (ii), (iii), (iv) and (v), of this paragraph, as well as the terms and provisions of (A) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warrantiesDesignations.

Most Favored Nation. During the period from May 23, 2010 through completion of the Second Closing, neither the Company nor the Company Subsidiaries shall enter into any additional agreements, or modify any existing agreements or Transaction Documents, including the CapGen Investment Agreement or any other agreements with any existing or future investors (including any Purchaser but excluding any Anchor Investor or CapGen) in the Company or any of the Company Subsidiaries (including any Additional Agreements entered into with the Additional Investors) that have the effect of establishing rights or otherwise benefiting such investor in a manner more favorable in any material respect to such investor than the rights and benefits established in favor of the Purchasers Anchor Investors by this Agreementthe Transaction Documents, unless, in any such case, each Purchaser Anchor Investor will be given a copy of such additional or modified agreement and has been offered the opportunity to receive such rights and benefits of such additional or modified agreement within 60 days of the later of the execution of such additional or modified agreement and May 23, 2010. Such Purchaser Anchor Investor shall notify the Company in writing, within 30 days after the date it receives a copy of such additional or modified agreement, of its election to receive the rights and benefits set forth therein. For the avoidance of doubt, each Purchaser the Anchor Investors will receive a copy of each additional or modified agreement (including any Additional Agreements entered into with any Additional Investors) agreed to with one or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor or CapGen)investors. Without limiting the foregoing, the Company shall not offer any investors (other than in the Anchor Investors Other Private Placements, or CapGen) in any other capital raising transaction occurring at the same time as the transactions contemplated by this Agreement, the Transaction Documents on terms more favorable, in form or substance, than those offered in connection with the Private PlacementInvestment, unless the Purchasers Anchor Investors are also provided with such terms or have has consented thereto in writing; provided, however, that for purposes of this Section 3.123.10, the Purchasers Anchor Investors hereby consent to the Company’s entry into (i) the CapGen Investment Agreement, (ii) the Revised Stock Purchase Agreementsletter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”), (iii) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), (iv) the letter agreement dated as of the date hereof between the Company and CapGen (and the related agreements attached thereto), (ivv) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vvi) the letter agreement dated as of the date hereof between the Company and Fir Tree Value Master Fund, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC (collectively, the “Fir Tree Investors”) (the “Fir Tree Investor Letter”), ) and the terms and conditions thereof in each case in the form previously delivered by the Company to the PurchasersAnchor Investors; providedfurther, however, that any proposed modification to any Investor Letter from the form of such Investor Letter provided to the Anchor Investors and any proposed modification of such Investor Letter executed as of the date hereof after the date hereof shall be subject to the Anchor Investors’ rights and the Company’s obligations set forth above. For the purposes of this Agreement, all parties agree that the terms and conditions of those documents referred to in clauses (i), (ii), (iii), (iv), (v) and (v), vi) of this paragraph, as well as the terms and provisions of (A) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), paragraph shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warranties.

Most Favored Nation. During the period from May 23, 2010 through completion of the Second ClosingRights Offering, neither the Company nor the Company Subsidiaries shall enter into any additional agreements, or modify any existing agreements with or Transaction Documents, including the Anchor Investor Agreement, or any existing or future investors (including any Purchaser but excluding any Anchor Investor or CapGen) in the Company or any of the Company Subsidiaries (including any Additional Agreements entered into with the Additional Investors) that have the effect of establishing rights or otherwise benefiting such investor in a manner more favorable in any material respect to such investor than the rights and benefits established in favor of CapGen by the Purchasers by this AgreementTransaction Documents, unless, in any such case, each Purchaser CapGen will be given a copy of such additional or modified agreement and has been offered the opportunity to receive such rights and benefits of such additional or modified agreement within 60 days of the later of the execution of such additional agreement and May 23, 2010. Such Purchaser CapGen shall notify the Company in writing, within 30 days after the date it receives a copy of such additional or modified agreement, of its election to receive the rights and benefits set forth therein. For the avoidance of doubt, each Purchaser CapGen will receive a copy of each additional or modified agreement (including any Additional Agreements entered into with any Investors) agreed to with one or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor or CapGen)investors. Without limiting the foregoing, the Company shall not offer any investors (other than in the Anchor Investors Other Private Placements, or CapGen) in any other capital raising transaction occurring at the same time as the transactions contemplated by this Agreementthe Transaction Documents, including the transaction with Anchorage and Carlyle in the Anchor Investor Agreement and related Transaction Documents, as these are modified as of the date hereof after disclosure to CapGen, on terms more favorable, in form or substance, than those offered in connection with the Private PlacementInvestment, unless the Purchasers are CapGen is also provided with such terms or have CapGen has consented thereto in writing; provided, however, that for purposes of this Section 3.123.10, the Purchasers CapGen hereby consent consents to the Company’s entry into (in each case in the form last provided to CapGen): (i) the CapGen Anchor Investment Agreement, (ii) the Revised Stock Purchase Agreementsletter agreement dated as of the date hereof between the Company and an Affiliate of Carlyle (and the related agreements attached thereto) (the “Carlyle Investor Letter”), (iii) the letter agreement dated as of the date hereof between the Company and an Affiliate of Anchorage (and the related agreements attached thereto) (the “Anchorage Investor Letter”), (iv) the letter agreement dated as of the date hereof between the Company and CapGen (and the related agreements attached thereto) (the “CapGen Investor Letter”), (ivv) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vvi) the letter agreement dated as of the date hereof between the Company and Fir Tree Value Master Fund, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC (collectively, the “Fir Tree Investors”) (the “Fir Tree Investor Letter”), ) and the terms and conditions thereof in each case in the form previously delivered by the Company to CapGen; provided further, however, that any proposed modification to any Investor Letter from the Purchasersform of such Investor Letter last provided to CapGen and any proposed modification of such Investor Letter executed as of the date hereof after the date hereof shall be subject to CapGen’s rights and the Company’s obligations set forth above. For the purposes of this Agreement, all parties agree that the terms and conditions of those documents referred to in clauses (i), (ii), (iii), (iv), (v) and (v), vi) of this paragraph, as well as the terms and provisions of (A) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), paragraph shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warranties.

Most Favored Nation. During In the period from May 23, 2010 through completion event the Company sells or issues any convertible instruments including any Stock Acquisition Rights (other than the issuance of stock options to service providers of the Second ClosingCompany) at any time prior to the earlier of (a) the automatic conversion of the J-KISS or (b) the exercise of all the J-KISSes by the Investor, neither the Company nor shall provide the Investor with written notice of such sale or issuance no later than five (5) days after the closing date thereof, including the price and terms of such convertible instruments (the “Subsequent Instruments”). In the event the Investor determines, in its sole and absolute discretion, that any Subsequent Instrument contains terms more favorable to the holder(s) thereof than the terms set forth in the J-KISS, the Investor may elect to exchange the J-KISS for a Subsequent Instrument. Major Investor Rights. In the event the Investor, together with its affiliates, purchases one or more KISSes with an aggregate Purchase Price equal to or exceeding [5,000,000] yen (a “Major Investor”), the Company Subsidiaries shall enter into provide such Major Investor with the following rights: Information Rights. The Company shall deliver to the Major Investor its Financial Statements upon request, as soon as practicable, but in any additional agreements with any existing or future investors event within thirty (including any Purchaser but excluding any Anchor Investor or CapGen30) in days after the Company or any end of each of the first three (3) quarters of each fiscal year of the Company Subsidiaries that have the effect of establishing rights or otherwise benefiting such investor in a manner more favorable in any material respect to such investor than the rights and benefits established in favor of the Purchasers by this Agreement, unless, in any such case, each Purchaser will be given a copy of such additional agreement and has been offered the opportunity to receive such rights and benefits of such additional agreement within 60 days of the later of the execution of such additional agreement and May 23, 2010. Such Purchaser shall notify the Company in writing, within 30 ninety (90) days after the date it receives a copy of such additional agreement, of its election to receive the rights and benefits set forth therein. For the avoidance of doubt, each Purchaser will receive a copy end of each additional agreement agreed fiscal year of the Company. Such Financial Statements shall be in reasonable detail and prepared on a consistent basis. Additionally, regardless of whether the Company prepares Financial Statements, the Company shall deliver to with one the Major Investor such information relating to the financial condition, business or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor corporate affairs of the Company as such Major Investor or CapGenmay from time to time reasonably request. Notwithstanding anything to the contrary in this Section 5.2(a). Without limiting the foregoing, the Company shall not offer any investors (other than the Anchor Investors or CapGen) in any other capital raising transaction occurring at the same time as the transactions contemplated by this Agreement, terms more favorable, in form or substance, than those offered in connection with the Private Placement, unless the Purchasers are also provided with such terms or have consented thereto in writing; provided, however, that for purposes of be obligated under this Section 3.12, the Purchasers hereby consent 5.2(a) to the Company’s entry into provide information that (ix) it deems in good faith to be a trade secret or highly confidential information or (y) the CapGen Investment Agreement, (ii) disclosure of which would adversely affect the Revised Stock Purchase Agreements, (iii) the letter agreement dated as of the date hereof attorney-client privilege between the Company and CapGen (its counsel; and the Investor agrees to maintain the confidentiality of all of the information provided to the Investor under this Section 5.2(a) and agrees not to use such information other than for a purpose reasonably related agreements attached theretoto the Investor’s investment in the Company. Participation Rights. Each time the Company proposes to offer any Equity Securities at any time through and including the closing of the Next Equity Financing, the Company shall provide the Major Investor with at least ten (10) business days prior written notice of such offering, including the price and terms thereof. The Major Investor shall have a right of first offer to participate in such offering(s), (iv) on the letter agreement dated same terms and for the same price as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”all other investors in such offering(s), and by purchasing an aggregate number of Equity Securities (vwhether in one offering or across multiple offerings) the letter agreement dated as of the date hereof between the Company and Fir Tree Value Master Fund, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC (collectively, the “Fir Tree Investors”) (the “Fir Tree Investor Letter”), and the terms and conditions thereof in each case in the form previously delivered by the Company valued at up to the PurchasersParticipation Amount. For the purposes The Major Investor’s right of first offer set forth in this Agreement, all parties agree Section 5.2(b) shall be subject to compliance with applicable securities laws. “Major Investor” Rights. The Company shall ensure that the terms and conditions of those documents referred to in clauses (i), (ii), (iii), (iv) and (v), of this paragraph, as well as the terms and provisions of (A) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Major Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), shall be deemed Previously Disclosedto be a “Major Investor” (or such similar term) for all purposes, as that term is used hereinincluding, including for without limitation, rights of first offer and information rights, in relevant financing documents related to all subsequent sales of Equity Securities, to the purposes of modifying the Company’s representations and warrantiesextent such concept exists.

Most Favored Nation. During The Investor, whether or not participating in any issuance by the period from May 23, 2010 through completion Company of shares of Common Stock or any securities of the Second ClosingCompany which would entitle the holder thereof to acquire at any time shares of Common Stock, neither including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares of Common Stock ("Common Stock Equivalents") from the date hereof until the three (3) year anniversary of the date hereof (a "Subsequent Financing"), shall have the right, exercisable at any time prior to the ten (10) calendar days following the date on which the Subsequent Financing Notice (as defined below) is delivered to the Investor (the "Notice Termination Time") for such Subsequent Financing, to accept the securities and terms of such Subsequent Financing in lieu of the Exchange Shares and the terms of this Agreement ("MFN Right"), subject to the terms and conditions set forth herein. If the Company nor receives such notice from the Company Subsidiaries Investor of the exercise of its MFN Right on or prior to the Notice Termination Time for such Subsequent Financing, then: (a) effective upon the closing of such Subsequent Financing, the terms of the Exchange Securities (and, if and to the extent relevant, the underlying securities) then held by the Investor and this Agreement (collectively, "Present Terms") shall enter into any additional agreements automatically be amended by (i) substituting the form, mix and Present Terms of such securities (and, if and to the extent relevant, the underlying securities) with any existing or future investors those of the securities issued in the Subsequent Financing (including any Purchaser but excluding any Anchor Investor or CapGenand, if and to the extent relevant, the underlying securities) (the "Subsequent Financing Terms") and (ii) incorporating by reference, mutatis mutandis, the Subsequent Financing Terms in lieu of the Present Terms; and (b) thereafter, upon the reasonable request of the Company or any the Investor, the parties shall reasonably cooperate with each other in order to further or better evidence or effect such substitution(s) and amendment(s), and to otherwise carry out the intent and purposes of this Section 7, including the physical exchange of securities. Not later than the 10th calendar day prior to the day of the Company Subsidiaries that have the effect expected announcement of establishing rights or otherwise benefiting such investor in a manner more favorable in any material respect to such investor than the rights and benefits established in favor of the Purchasers by this Agreement, unless, in any such case, each Purchaser will be given a copy of such additional agreement and has been offered the opportunity to receive such rights and benefits of such additional agreement within 60 days of the later of the execution of such additional agreement and May 23, 2010. Such Purchaser shall notify the Company in writing, within 30 days after the date it receives a copy of such additional agreement, of its election to receive the rights and benefits set forth therein. For the avoidance of doubt, each Purchaser will receive a copy of each additional agreement agreed to with one or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor or CapGen). Without limiting the foregoingSubsequent Financing, the Company shall not offer any investors deliver to the Investor a written notice of the Company's intention to effect a Subsequent Financing (other than a "Subsequent Financing Notice"), which notice shall describe in reasonable detail the Anchor Investors or CapGen) in any other capital raising transaction occurring at proposed terms of the same time as the transactions contemplated by this Agreement, terms more favorable, in form or substance, than those offered in connection with the Private Placement, unless the Purchasers are also provided with such terms or have consented thereto in writing; provided, however, that for purposes of this Section 3.12Subsequent Financing, the Purchasers hereby consent amount of proceeds intended to the Company’s entry into (i) the CapGen Investment Agreement, (ii) the Revised Stock Purchase Agreements, (iii) the letter agreement dated as of the date hereof between the Company and CapGen (be raised thereunder and the related agreements attached thereto), (iv) the letter agreement dated Person or Persons through or with whom such Subsequent Financing is proposed to be effected and shall include a term sheet and transaction documents relating thereto as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (v) the letter agreement dated as of the date hereof between the Company and Fir Tree Value Master Fund, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC (collectively, the “Fir Tree Investors”) (the “Fir Tree Investor Letter”), and the terms and conditions thereof in each case in the form previously delivered by the Company to the Purchasers. For the purposes of this Agreement, all parties agree that the terms and conditions of those documents referred to in clauses (i), (ii), (iii), (iv) and (v), of this paragraph, as well as the terms and provisions of (A) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warrantiesattachment.

Most Favored Nation. During the period from May 23, 2010 through completion of the Second Closing, neither the Company nor the Company Subsidiaries Each Purchaser shall enter into any additional agreements with any existing or future investors (including any Purchaser but excluding any Anchor Investor or CapGen) in the Company or any of the Company Subsidiaries that have the effect right, exercisable at any time following the consummation of establishing rights or otherwise benefiting such investor in a manner more favorable in any material respect to such investor than the rights and benefits established in favor of the Purchasers by this Agreement, unless, in any such case, each Purchaser will be given a copy of such additional agreement and has been offered the opportunity to receive such rights and benefits of such additional agreement within 60 days of the later of the execution of such additional agreement and May 23, 2010. Such Purchaser shall notify the Company in writing, within 30 days after the date it receives a copy of such additional agreement, of its election to receive the rights and benefits set forth therein. For the avoidance of doubt, each Purchaser will receive a copy of each additional agreement agreed to with one or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor or CapGen). Without limiting the foregoing, the Company shall not offer any investors (other than the Anchor Investors or CapGen) in any other capital raising transaction occurring at the same time as the transactions contemplated by this that certain Agreement and Plan of Merger, dated December 11, 2023, by and among the Company, Adicure, Inc. and Evofem Biosciences, Inc., (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Merger Agreement”), terms more favorable, in form or substance, than those offered and at any time following the consummation of the transactions contemplated by that certain Exchange Agreement to be entered into in connection with the Private Placement, unless the Purchasers are also provided with such terms Merger Agreement on or have consented thereto in writing; provided, however, that for purposes of this Section 3.12, the Purchasers hereby consent to the Company’s entry into (i) the CapGen Investment Agreement, (ii) the Revised Stock Purchase Agreements, (iii) the letter agreement dated as of about the date hereof by and between the Company and CapGen the holders of certain preferred stock of Evofem Biosciences, Inc. (as amended, restated, amended and the related agreements attached thereto)restated, (iv) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (v) the letter agreement dated as of the date hereof between the Company and Fir Tree Value Master Fund, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC (collectivelysupplemented or otherwise modified from time to time, the “Fir Tree InvestorsEvofem Exchange Agreement”) to accept, in lieu of the Securities and the terms of this Agreement, the securities and related terms of any series of the Company’s preferred stock issued by the Company upon the consummation of the transactions contemplated by the Merger Agreement and/or the transactions contemplated by the Evofem Exchange Agreement, with the particular series of the Company’s preferred stock whose terms are to be substituted for the Present Terms (as defined below) in accordance with this Section 4.13 being at the election of the Purchaser (such series of the Company’s preferred stock, the “Elected Series”) (the “Fir Tree Investor LetterMFN Right”); provided, notwithstanding anything to the contrary set forth herein, that the MFN Right shall apply to allow any Purchaser exercising its MFN Right hereunder to accept all terms of the Elected Series elected by such Purchaser except for the senior ranking of the preferences as to dividends, distributions and payments upon the liquidation, dissolution and winding up of the Company of the series of preferred stock issued to the parties identified on Schedule 4.13 attached hereto pursuant to the transactions contemplated by the Merger Agreement (the “Ranking Limitation”). Upon the Company’s receipt of written notice from such Purchaser of the exercise of its MFN Right, which notice shall indicate the applicable Elected Series elected by such Purchaser for application of its MFN Right, then: (i) effective as of the consummation of the transactions contemplated by the Merger Agreement or as of the consummation of the transactions contemplated by the Evofem Exchange Agreement, as applicable, the terms of the Securities (and, if and to the extent relevant, the underlying securities) then held by Purchaser and this Agreement (collectively, “Present Terms”) shall automatically be amended, solely with respect to such Purchaser by (x) substituting the form, mix and Present Terms of such Securities (and, if and to the extent relevant, the underlying securities) with those of the applicable Elected Series (the “Elected Series Terms”) in accordance with this Section 4.13 and (y) incorporating by reference, mutatis mutandis, the Elected Series Terms in lieu of the Present Terms, subject in each case to the Ranking Limitation; and (ii) thereafter, upon the request of the Company or such Purchaser, the parties shall reasonably cooperate with each other in order to further or better evidence or effect such substitution(s) and amendment(s), and to otherwise carry out the terms intent and conditions thereof in each case in purposes of this Section 4.13, including the form previously delivered by the Company to the Purchasersphysical exchange of securities. For the purposes of this Agreementavoidance, all parties agree that neither the terms and conditions of those documents referred to in clauses (i), (ii), (iii), (iv) and (v), of this paragraph, as well as the terms and provisions of (A) the letter agreement dated as consent of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (nor any other Purchaser shall be required for a Purchaser to exercise its rights under this Section 4.13 and the related agreements attached thereto) (election of a Purchaser to exercise its rights under this Section 4.13 shall apply solely to such Purchaser and shall not affect the “Carlyle Investor Letter”) and (B) rights of any other Purchaser under the letter agreement dated as of Transaction Documents; provided, notwithstanding anything to the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”)contrary set forth herein, that if more than one Purchaser elects to exercise its rights under this Section 4.13, this Section 4.13 shall be deemed Previously Disclosed, as that term is used herein, including for applied with respect to such electing Purchasers in the purposes same manner and proportionately in relation to the respective number of modifying the Company’s representations and warrantiesshares of Series B-1 Preferred Stock purchased by such electing Purchasers hereunder.

Most Favored Nation. During the period from May 23, 2010 through completion of the Second Closing, neither the Company nor the Company Subsidiaries shall enter into any additional agreements with any existing or future investors (including any Purchaser but excluding any Anchor Investor or CapGen) in the Company or any of the Company Subsidiaries that have the effect of establishing rights or otherwise benefiting such investor in a manner more favorable in any material respect to such investor than the rights and benefits established in favor of the Purchasers by this Agreement, unless, in any such case, each Purchaser will be given a copy of such additional agreement and has been offered the opportunity to receive such rights and benefits of such additional agreement within 60 days of the later of the execution of such additional agreement and May 23, 2010. Such Purchaser shall notify the Company in writing, within 30 days after the date it receives a copy of such additional agreement, of its election to receive the rights and benefits set forth therein. For the avoidance of doubt, each Purchaser will receive a copy of each additional agreement agreed to with one or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor or CapGen). Without limiting the foregoing, the Company shall not offer any investors (other than the Anchor Investors or CapGen) in any other capital raising transaction occurring at the same time as the transactions contemplated by this Agreement, terms more favorable, in form or substance, than those offered in connection with the Private Placement, unless the Purchasers are also provided with such terms or have consented thereto in writing; provided, however, that for purposes of this Section 3.12, the Purchasers hereby consent to the Company’s entry into (i) the CapGen Investment Agreement, (ii) the Revised Stock Purchase Agreements, (iii) the letter agreement dated as of the date hereof between the Company and CapGen (and the related agreements attached thereto), (iviii) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), ) and (viv) the letter agreement dated as of the date hereof between the Company and Fir Tree Value Master Fund, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC (collectively, the “Fir Tree Investors”) (the “Fir Tree Investor Letter”), and the terms and conditions thereof in each case in the form previously delivered by the Company to the Purchasers. Purchasers For the purposes of this Agreement, all parties agree that the terms and conditions of those documents referred to in clauses (i), (ii), (iii), (iv) and (viv), of this paragraph, as well as the terms and provisions of (A) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warranties.

Most Favored Nation. During the period from May 23, 2010 through completion of the Second Closing, neither the Company nor the Company Subsidiaries shall enter into any additional agreements with any existing or future investors (including any Purchaser but excluding any Anchor Investor or CapGen) in the Company or any of the Company Subsidiaries that have the effect of establishing rights or otherwise benefiting such investor in a manner more favorable in any material respect to such investor than the rights The Buyer hereby represents and benefits established in favor of the Purchasers by this Agreement, unless, in any such case, each Purchaser will be given a copy of such additional agreement and has been offered the opportunity to receive such rights and benefits of such additional agreement within 60 days of the later of the execution of such additional agreement and May 23, 2010. Such Purchaser shall notify the Company in writing, within 30 days after the date it receives a copy of such additional agreement, of its election to receive the rights and benefits set forth therein. For the avoidance of doubt, each Purchaser will receive a copy of each additional agreement agreed to with one or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor or CapGen). Without limiting the foregoing, the Company shall not offer any investors (other than the Anchor Investors or CapGen) in any other capital raising transaction occurring at the same time as the transactions contemplated by this Agreement, terms more favorable, in form or substance, than those offered in connection with the Private Placement, unless the Purchasers are also provided with such terms or have consented thereto in writing; provided, however, that for purposes of this Section 3.12, the Purchasers hereby consent to the Company’s entry into (i) the CapGen Investment Agreement, (ii) the Revised Stock Purchase Agreements, (iii) the letter agreement dated warrants as of the date hereof between and covenants and agrees that none of the Company and CapGen terms offered to any person on the date hereof or within three (and 3) months hereafter to any person with respect to any purchase of, amendment of or waiver regarding any warrant to purchase the related agreements attached thereto), Shares (ivor other similar instrument) the letter agreement dated outstanding as of the date hereof between the Company and Midtown Acquisitions L.P. (the each an “Davidson Investor LetterOther Purchase Agreement”), is at a higher Purchase Price per Warrant or is otherwise more favorable to such person than those of the Seller and (v) the letter agreement dated as of this Agreement. If , on the date hereof between the Company and Fir Tree Value Master Fund, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC or within three (collectively3) months hereafter, the “Fir Tree Investors”) (Buyer enters into an Other Purchase Agreement at a higher Purchase Price per Warrant or with more favorable terms or conditions to such person than those of the “Fir Tree Investor Letter”), Seller and the terms and conditions thereof in each case in the form previously delivered by the Company to the Purchasers. For the purposes of this Agreement, all parties agree then (i) the Buyer shall provide notice thereof to the Seller promptly following the occurrence thereof and (ii) Purchase Price per Warrant stated in this Agreement shall be, without any further action by the Seller or the Buyer, automatically amended and modified in an economically and legally equivalent manner such that the Seller shall receive the benefit of the higher Purchase Price per Warrant or more favorable terms and and/or conditions (as the case may be) set forth in such Other Purchase Agreement, provided that upon written notice to the Buyer at any time the Seller may elect not to accept the benefit of those documents referred any such amended or modified term or condition, in which event the term or condition contained in this Agreement shall apply to the Seller as it was in clauses (i), (ii), (iii), (iv) and (v), effect immediately prior to such amendment or modification as if such amendment or modification never occurred with respect to the Seller. The provisions of this paragraph, as well as the terms Section 4.15 shall apply similarly and provisions of (A) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warrantiesequally to each Other Purchase Agreement.

Most Favored Nation. During the period from May 23, 2010 through completion The Company hereby represents and warrants as of the Second Closing, neither the Company nor the Company Subsidiaries shall enter into any additional agreements with any existing or future investors (including any Purchaser but excluding any Anchor Investor or CapGen) in the Company or any date hereof that none of the Company Subsidiaries that have terms offered to any Person relating to the effect exchange of establishing rights any Warrants and any subsequent amendment thereto (each an “Exchange Document”), is or otherwise benefiting such investor in a manner will be more favorable in any material respect to such investor Person than the rights and benefits established in favor those of the Purchasers by Transferee Holder and the Holder and this Agreement, unless, in any such case, each Purchaser will be given a copy of such additional agreement and has been offered the opportunity to receive such rights and benefits of such additional agreement within 60 days of the later of the execution of such additional agreement and May 23, 2010. Such Purchaser shall notify the Company in writing, within 30 days after the date it receives a copy of such additional agreement, of its election to receive the rights and benefits set forth therein. For the avoidance of doubt, each Purchaser will receive a copy of each additional agreement agreed to with one or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor or CapGen). Without limiting the foregoing, the Company shall not offer any investors Agreement (other than the Anchor Investors or CapGen) in any other capital raising transaction occurring at the same time as the transactions contemplated by this Agreement, terms more favorable, in form or substance, than those offered in connection with the Private Placement, unless the Purchasers are also provided with such terms or have consented thereto in writingreimbursement of legal fees); provided, however, that for purposes the purpose of this Section 3.125(n) the terms offered to any Person in an Exchange Document shall be evaluated in their entirety and be compared to the terms offered to the Transferee Holder and the Holder pursuant to this Agreement in their entirety. If, and whenever on or after the date hereof, the Purchasers hereby consent to the Company’s entry Company enters into (i) the CapGen Investment Agreementan Exchange Document, (ii) the Revised Stock Purchase Agreements, (iii) the letter agreement dated as of the date hereof between then the Company and CapGen (and the related agreements attached thereto), (iv) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. shall provide written notice (the “Davidson Investor LetterExchange Document Notice”)) thereof to the Transferee Holder and the Holder promptly following the occurrence thereof. The Transferee Holder and the Holder shall have five (5) Business Days from the receipt of an Exchange Document Notice to elect to get the benefit of, and (v) the letter agreement dated as be subject to, all of the date hereof between rights and obligations under the Company and Fir Tree Value Master Fund, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC (collectivelyrelated Exchange Document. In the event of any such election by the Holder, the “Fir Tree Investors”) (the “Fir Tree Investor Letter”), and the terms and conditions thereof in each case in the form previously delivered aggregate consideration payable by the Company to the PurchasersHolder (x) shall equal (i) the aggregate consideration payable in respect of the exchange of the Warrants pursuant to such Exchange Document, minus the aggregate consideration paid to the Holder under this Agreement (the consideration to the Holder, for the avoidance of doubt, is $4,141,200), and (y) shall be payable in cash by wire transfer of immediately available funds unless the Company and the Holder shall mutually agree in writing upon the issuance of shares of Common Stock in whole or in part in lieu thereof. For the purposes of this Section 5(n), any shares of Common Stock issued pursuant to an Exchange Document or the Transferee Holder’s or the Holder’s election hereunder will be valued at 82% of the arithmetic average of the Weighted Average Prices (as defined in the Exchange Note) for the three (3) Trading Days immediately preceding the entry into such Exchange Agreement, all parties agree . In the event that the terms and conditions of those documents referred Transferee Holder or the Holder shall not deliver a written notice to in clauses (i), (ii), (iii), (iv) and (v), the Company electing to receive the benefits of this paragraphSection 5(n) on or prior to the fifth (5th) Business Day after the delivery of an Exchange Document Notice by the Company, as well as then the terms Transferee Holder’s and the Holder’s rights with respect to the applicable Exchange Document shall terminate and be of no further force and effect. The provisions of this Section 5(n) shall apply similarly and equally to each Exchange Document. This Section 5(n) shall not apply to any Exchange Document that provides for the payment of aggregate consideration (Aincluding cash, indebtedness and securities as valued pursuant to this Section 5(n)) the letter agreement dated as of the date hereof between by the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warrantiesless than $250,000.

Most Favored Nation. During the period from May 23, 2010 through completion The Company hereby represents and warrants as of the Second Closing, neither date hereof that none of the Company nor the Company Subsidiaries shall enter into terms offered to any additional agreements with any existing or future investors other investor (including in any Purchaser but excluding any Anchor Investor or CapGenagreement entered into in connection therewith) in the Company a private placement of Shares or any other equity securities of the Company Subsidiaries that have prior to or substantially concurrent with the effect of establishing rights or otherwise benefiting such investor in a manner deSPAC Closing, is more favorable in any material respect to such investor than the rights and benefits established in favor of the Purchasers by this Agreement, unless, in any such case, each Purchaser will be given a copy of such additional agreement and has been offered the opportunity to receive such rights and benefits of such additional agreement within 60 days of the later of the execution of such additional agreement and May 23, 2010. Such Purchaser shall notify the Company in writing, within 30 days after the date it receives a copy of such additional agreement, of its election to receive the rights and benefits set forth therein. For the avoidance of doubt, each Purchaser will receive a copy of each additional agreement agreed to with one or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor or CapGen). Without limiting the foregoing, the Company shall not offer any investors (other than the Anchor Investors or CapGen) in any other capital raising transaction occurring at the same time as the transactions contemplated by this Agreement, terms more favorableinvestor, in form or substance, than those offered in connection provided to the Investor under this Agreement with respect to the securities subscribed for hereunder. The Company shall not enter into any subscription or other investment agreement with respect to a private placement of equity securities of the Company substantially concurrent with the Private Placement, unless the Purchasers are also provided with such deSPAC Closing that contains terms or have consented thereto in writing; providedconditions more favorable to an investor, howevertaken as a whole, than the terms provided to the Investor under this Agreement without the prior express written consent of the Investor and, provided further, that to the extent the Investor provides such express written consent, the Company will modify or revise the terms of this Agreement in order for purposes the transaction contemplated hereby to ensure the terms provided to the Investor are comparable to the terms provided to the other investor in all material aspects. Provided further that, to the extent the Company does offer any other investor a private placement of equity securities of the Company substantially concurrent with the deSPAC Closing after the date hereof, no such subscription or other investment agreement shall contain a most favored nation clause, in the form of this Section 3.127.16 or otherwise, that does not carve out this Agreement (along with any other agreements entered into in connection herewith) without the Purchasers hereby written consent of the Investor. The foregoing shall not apply to any (i) arrangement for recapitalization of the Company’s entry into (i) share capital in accordance with the CapGen Investment Business Combination Agreement, (ii) exchange of equity securities of the Revised Company for exchangeable bonds issued by Vingroup Joint Stock Purchase AgreementsCompany, a public company listed on the Ho Chi Minh Stock Exchange, Vietnam, pursuant to a deed poll dated April 29, 2022 by the Company, (iii) the letter agreement dated as of the date hereof between the Company and CapGen (and the provision that is solely related agreements attached thereto)to any regulation imposed on, or tax provisions applicable to, an investor that is party to such agreement, (iv) provision that is personal to such investor solely based on the letter agreement dated as place of the date hereof between the Company and Midtown Acquisitions L.P. organization or headquarters, or organizational form of (the “Davidson Investor Letter”)or regulations applicable to) such investor, and or (v) subject to the letter agreement dated as prior written consent of the date hereof between the Company and Fir Tree Value Master FundInvestor (which consent shall not be unreasonably withheld, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC (collectively, the “Fir Tree Investors”) (the “Fir Tree Investor Letter”delayed or conditioned), and the terms and conditions thereof in each case in the form previously delivered by the Company to the Purchasers. For the purposes of this Agreementbona fide commercial, all parties agree that the terms and conditions of those documents referred to in clauses intellectual property, technological or strategic collaboration arrangements with investors (ior their respective Affiliates), (ii), (iii), (iv) and (v), of this paragraph, as well as the terms and provisions of (A) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warranties.

Most Favored Nation. During the period from May 23, 2010 through completion As of the Second ClosingEffective Time, the Company represents and warrants to the OEP Stockholders and the Swarth Stockholder that neither the Company nor any of its Affiliates is a party to any stockholders agreement, side letter agreement or other agreement with any OEP Stockholder, Swarth Stockholder or any of their respective Affiliate that grants rights to such OEP Stockholder, Swarth Stockholder or Affiliate in addition to the rights hereunder (an “Other Agreement”), other than this Agreement, the Merger Agreement and the agreements listed on Schedule III hereto. From and after the Effective Time, the Company Subsidiaries shall will not, and will not permit any of its Affiliates to, (A) enter into any additional Other Agreement that grants rights to any OEP Stockholder, Swarth Stockholder or any of their respective Affiliates that are superior (the “Superior Rights”), to those belonging to the Swarth Stockholder or the OEP Stockholders, respectively, under this Agreement, unless the Company offers to enter into a corresponding agreement for the benefit of the Swarth Stockholder or the OEP Stockholders, respectively or (B) waive any provision of this Agreement in a manner that benefits the OEP Stockholders or the Swarth Stockholder unless it offers to grant a corresponding waiver for the benefit of the Swarth Stockholder or the OEP Stockholders, respectively; provided, that (1) nothing in this ‎Section 7.01 shall prohibit the Company from entering into any agreements with with, granting any existing rights to, or future investors waiving any provision of this Agreement in a manner that benefits, solely any Person other than the OEP Stockholders, the Swarth Stockholder or their Affiliates and (including 2) this ‎Section 7.01 shall not apply to any Purchaser but excluding commercial agreement entered into between the OEP Stockholders, the Swarth Stockholder and any Anchor Investor or CapGen) in of their respective Affiliates, on the one hand, and the Company or any of its Affiliates, on the Company Subsidiaries other hand, in the ordinary course of business on arms-length terms and that have the effect of establishing rights or otherwise benefiting such investor in is approved by a manner more favorable in any material respect to such investor than the rights and benefits established in favor majority of the Purchasers by this Agreement, unless, in any such case, each Purchaser will be given a copy disinterested Directors then serving on the Board of such additional agreement and has been offered the opportunity to receive such rights and benefits of such additional agreement within 60 days of the later of the execution of such additional agreement and May 23, 2010. Such Purchaser shall notify the Company in writing, within 30 days after the date it receives a copy of such additional agreement, of its election to receive the rights and benefits set forth therein. For the avoidance of doubt, each Purchaser will receive a copy of each additional agreement agreed to with one or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor or CapGen). Without limiting the foregoing, the Company shall not offer any investors (other than the Anchor Investors or CapGen) in any other capital raising transaction occurring at the same time as the transactions contemplated by this Agreement, terms more favorable, in form or substance, than those offered in connection with the Private Placement, unless the Purchasers are also provided with such terms or have consented thereto in writing; provided, however, that for purposes of this Section 3.12, the Purchasers hereby consent to the Company’s entry into (i) the CapGen Investment Agreement, (ii) the Revised Stock Purchase Agreements, (iii) the letter agreement dated as of the date hereof between the Company and CapGen (and the related agreements attached thereto), (iv) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (v) the letter agreement dated as of the date hereof between the Company and Fir Tree Value Master Fund, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC (collectively, the “Fir Tree Investors”) (the “Fir Tree Investor Letter”), and the terms and conditions thereof in each case in the form previously delivered by the Company to the Purchasers. For the purposes of this Agreement, all parties agree that the terms and conditions of those documents referred to in clauses (i), (ii), (iii), (iv) and (v), of this paragraph, as well as the terms and provisions of (A) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warrantiesDirectors.

Most Favored Nation. During the period from May 23, 2010 through completion of the Second ClosingRights Offering, neither the Company nor the Company Subsidiaries shall enter into any additional agreements, or modify any existing agreements with or Transaction Documents, including the Anchor Investor Agreement, or any existing or future investors (including any Purchaser but excluding any Anchor Investor or CapGen) in the Company or any of the Company Subsidiaries (including any Additional Agreements entered into with the Additional Investors) that have the effect of establishing rights or otherwise benefiting such investor in a manner more favorable in any material respect to such investor than the rights and benefits established in favor of CapGen by the Purchasers by this AgreementTransaction Documents, unless, in any such case, each Purchaser CapGen will be given a copy of such additional or modified agreement and has been offered the opportunity to receive such rights and benefits of such additional or modified agreement within 60 days of the later of the execution of such additional agreement and May 23, 2010. Such Purchaser CapGen shall notify the Company in writing, within 30 days after the date it receives a copy of such additional or modified agreement, of its election to receive the rights and benefits set forth therein. For the avoidance of doubt, each Purchaser CapGen will receive a copy of each additional or modified agreement (including any Additional Agreements entered into with any Investors) agreed to with one or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor or CapGen)investors. Without limiting the foregoing, the Company shall not offer any investors (other than in the Anchor Investors Other Private Placements, or CapGen) in any other capital raising transaction occurring at the same time as the transactions contemplated by this Agreementthe Transaction Documents, including the transaction with Anchorage and Carlyle in the Anchor Investor Agreement and related Transaction Documents, as these are modified as of the date hereof after disclosure to CapGen, on terms more favorable, in form or substance, than those offered in connection with the Private PlacementInvestment, unless the Purchasers are CapGen is also provided with such terms or have CapGen has consented thereto in writing; provided, however, that for purposes of this Section 3.123.10, the Purchasers CapGen hereby consent consents to the Company’s entry into (in each case in the form last provided to CapGen): (i) the CapGen Anchor Investment Agreement, (ii) the Revised Stock Purchase Agreementsletter agreement dated as of the date hereof between the Company and an Affiliate of Carlyle (and the related agreements attached thereto) (the “Carlyle Investor Letter”), (iii) the letter agreement dated as of the date hereof between the Company and an Affiliate of Anchorage (and the related agreements attached thereto) (the “Anchorage Investor Letter”), (iv) the letter agreement dated as of the date hereof between the Company and CapGen (and the related agreements attached thereto) (the “CapGen Investor Letter”), (ivv) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vvi) the letter agreement dated as of the date hereof between the Company and Fir Tree Value Master Fund, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC (collectively, the “Fir Tree Investors”) (the “Fir Tree Investor Letter”), ) and the terms and conditions thereof in each case in the form previously delivered by the Company to CapGen; provided further, however, that any proposed modification to any Investor Letter from the Purchasersform of such Investor Letter last provided to CapGen and any proposed modification of such Investor Letter executed as of the date hereof after the date hereof shall be subject to CapGen’s rights and the Company’s obligations set forth above. For the purposes of this Agreement, all parties agree that the terms and conditions of those documents referred to in clauses (i), (ii), (iii), (iv), (v) and (v), vi) of this paragraph, as well as the terms and provisions of (A) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), paragraph shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warranties.

Most Favored Nation. During In the period from May 23, 2010 through completion event that at any time on or prior to the earlier to occur of the Second Closing, neither consummation of the eToys Merger or the public announcement by the Company nor of the termination of the eToys Merger (the date thereof, as it may be definitionally extended for purposes of Section 9 and this Section 23 by the Company Subsidiaries shall enter in its sole discretion, the “MFN Period Expiration Date”) the Company issues, or enters into any additional agreements with agreement to issue, any existing or future investors of its equity securities, including any securities (including debt securities) that are convertible or exercisable into, or exchangeable for, such equity securities, to one or more Other Purchasers, and if, in connection with such issuance, the Other Purchasers to which such securities are issued (the “Favored Issuees”) (A) receive any Purchaser but excluding any Anchor Investor or CapGeneconomic terms (including, without limitation, price, the effective common stock conversion price, the percentage warrant coverage and the warrant exercise price) in the Company or any of the Company Subsidiaries that have the effect of establishing rights or otherwise benefiting such investor in a manner more favorable in any material respect incident to such investor than issuance which are superior to the rights and benefits established in favor economic terms applicable to the Purchaser’s purchase of the Purchasers by securities pursuant to this Agreement, unless(B) are accorded investor rights vis-à-vis the Company that are either (i) superior to similar rights accorded to the Purchaser pursuant to this Agreement, or (ii) in any such case, each Purchaser will be given a copy addition to the corpus of such additional agreement and has been offered rights conferred on the opportunity Purchaser pursuant to receive such rights and benefits of such additional agreement within 60 days this Agreement, or (C) are issued securities with any powers, rights, preferences or privileges senior to those of the later of the execution of such additional agreement and May 23Convertible Preferred Stock, 2010. Such Purchaser shall notify the Company in writing, within 30 days after the date it receives a copy of such additional agreement, of its election to receive the rights and benefits set forth therein. For the avoidance of doubt, each Purchaser will receive a copy of each additional agreement agreed to with one or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor or CapGen). Without limiting the foregoing, then the Company shall not offer any investors timely provide to the Purchaser the right to participate in such issuance, on the identical terms and conditions as the Favored Issuees (based upon the Purchaser’s U.S.$700,004.04 investment hereunder), in exchange for the cancellation of all of the Purchaser’s rights under this Agreement, the Warrants and the Certificate of Designation, other than the Anchor Investors or CapGen) in any other capital raising transaction occurring at right of the same time as Purchaser to retain 50% of the transactions contemplated Warrants purchased by the Purchaser pursuant to this Agreement, terms more favorable, in form or substance, than those offered in connection with the Private Placement, unless the Purchasers are also provided with such terms or have consented thereto in writing; provided, however, that for purposes of this Section 3.12, the Purchasers hereby consent Agreement (subject to the Company’s entry into (i) the CapGen Investment Agreement, (ii) the Revised Stock Purchase Agreements, (iii) the letter agreement dated as original terms of the date hereof between the Company and CapGen (and the related agreements attached theretosuch Warrants), (iv) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (v) the letter agreement dated as of the date hereof between the Company and Fir Tree Value Master Fund, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC (collectively, the “Fir Tree Investors”) (the “Fir Tree Investor Letter”), and the terms and conditions thereof in each case in the form previously delivered by the Company to the Purchasers. For the purposes of this Agreement, all parties agree that the terms and conditions of those documents referred to in clauses (i), (ii), (iii), (iv) and (v), of this paragraph, as well as the terms and provisions of (A) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warranties.

Most Favored Nation. During the period from May 23, 2010 through completion of the Second Closing, neither the Company nor the Company Subsidiaries shall enter into any additional agreements, or modify any existing agreements or Transaction Documents, including the CapGen Investment Agreement or any other agreements with any existing or future investors (including any Purchaser but excluding any Anchor Investor or CapGen) in the Company or any of the Company Subsidiaries (including any Additional Agreements entered into with the Additional Investors) that have the effect of establishing rights or otherwise benefiting such investor in a manner more favorable in any material respect to such investor than the rights and benefits established in favor of the Purchasers Anchor Investors by this Agreementthe Transaction Documents, unless, in any such case, each Purchaser Anchor Investor will be given a copy of such additional or modified agreement and has been offered the opportunity to receive such rights and benefits of such additional or modified agreement within 60 days of the later of the execution of such additional or modified agreement and May 23, 2010. Such Purchaser Anchor Investor shall notify the Company in writing, within 30 days after the date it receives a copy of such additional or modified agreement, of its election to receive the rights and benefits set forth therein. For the avoidance of doubt, each Purchaser the Anchor Investors will receive a copy of each additional or modified agreement (including any Additional Agreements entered into with any Additional Investors) agreed to with one or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor or CapGen)investors. Without limiting the foregoing, the Company shall not offer any investors (other than in the Anchor Investors Other Private Placements, or CapGen) in any other capital raising transaction occurring at the same time as the transactions contemplated by this Agreement, the Transaction Documents on terms more favorable, in form or substance, than those offered in connection with the Private PlacementInvestment, unless the Purchasers Anchor Investors are also provided with such terms or have has consented thereto in writing; provided, however, that for purposes of this Section 3.123.10, the Purchasers Anchor Investors hereby consent to the Company’s entry into (i) the CapGen Investment Agreement, (ii) the Revised Stock Purchase Agreementsletter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”), (iii) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor 42 Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), (iv) the letter agreement dated as of the date hereof between the Company and CapGen (and the related agreements attached thereto), (ivv) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vvi) the letter agreement dated as of the date hereof between the Company and Fir Tree Value Master Fund, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC (collectively, the “Fir Tree Investors”) (the “Fir Tree Investor Letter”), ) and the terms and conditions thereof in each case in the form previously delivered by the Company to the PurchasersAnchor Investors; provided further, however, that any proposed modification to any Investor Letter from the form of such Investor Letter provided to the Anchor Investors and any proposed modification of such Investor Letter executed as of the date hereof after the date hereof shall be subject to the Anchor Investors’ rights and the Company’s obligations set forth above. For the purposes of this Agreement, all parties agree that the terms and conditions of those documents referred to in clauses (i), (ii), (iii), (iv), (v) and (v), vi) of this paragraph, as well as the terms and provisions of (A) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), paragraph shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warranties.

Most Favored Nation. During the period from May 23, 2010 through completion of the Second Closing, neither the The Company nor the Company Subsidiaries shall enter into any additional agreements with any existing or future investors (including any Purchaser but excluding any Anchor Investor or CapGen) in the Company or any of the Company Subsidiaries that have the effect of establishing rights or otherwise benefiting such investor in a manner more favorable in any material respect to such investor than the rights hereby represents and benefits established in favor of the Purchasers by this Agreement, unless, in any such case, each Purchaser will be given a copy of such additional agreement and has been offered the opportunity to receive such rights and benefits of such additional agreement within 60 days of the later of the execution of such additional agreement and May 23, 2010. Such Purchaser shall notify the Company in writing, within 30 days after the date it receives a copy of such additional agreement, of its election to receive the rights and benefits set forth therein. For the avoidance of doubt, each Purchaser will receive a copy of each additional agreement agreed to with one or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor or CapGen). Without limiting the foregoing, the Company shall not offer any investors (other than the Anchor Investors or CapGen) in any other capital raising transaction occurring at the same time as the transactions contemplated by this Agreement, terms more favorable, in form or substance, than those offered in connection with the Private Placement, unless the Purchasers are also provided with such terms or have consented thereto in writing; provided, however, that for purposes of this Section 3.12, the Purchasers hereby consent to the Company’s entry into (i) the CapGen Investment Agreement, (ii) the Revised Stock Purchase Agreements, (iii) the letter agreement dated warrants as of the date hereof between and covenants and agrees from and after the Company and CapGen (and date hereof until the related agreements attached thereto), (iv) the letter agreement dated as first anniversary of the date hereof between hereof, that none of the Company terms offered to any Person with respect to any consent, release, amendment, settlement or waiver relating to the terms, conditions and Midtown Acquisitions L.P. transactions contemplated hereby (the each a “Davidson Investor LetterSettlement Document”), and (v) the letter agreement dated as is or will be more favorable to such Person than those of the date hereof between the Company Holder and Fir Tree Value Master Fundthis Agreement or would otherwise result in such other holder (each, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC (collectively, the an “Fir Tree InvestorsOther Holder”) of the Existing Warrant (the each, a “Fir Tree Investor LetterSettlement Warrant”), or its designee, directly or indirectly, acquiring more than (or having the right to acquire more than, as applicable) one share of Common Stock, in exchange for (whether by exchange, reduction, cancelation or any other transaction with respect to) any one share of Common Stock issuable upon exercise (without regard to any cashless exercise) of such Settlement Warrant (a “Settlement Make-Whole Event”). If, and whenever on or after the terms and conditions thereof in each case in the form previously delivered by date hereof, the Company enters into a Settlement Document, then (i) the Company shall provide notice thereof to the Purchasers. For Holder immediately following the purposes of this Agreement, all parties agree that occurrence thereof and (ii) the terms and conditions of those documents referred this Agreement shall be, without any further action by the Holder or the Company, automatically amended and modified in an economically and legally equivalent manner such that the Holder shall receive the benefit of the more favorable terms and/or conditions (as the case may be) set forth in such Settlement Document and, if a Settlement Make-Whole Event occurs, the Company shall deliver to in clauses the Holder, as additional securities issuable pursuant to the Exchange hereunder for the Existing Warrant, such aggregate number of additional shares of Common Stock as equal to the product of (a) ______ multiplied by (b) the difference of (i)) the quotient of (x) the aggregate number of shares of Common Stock (on an as-converted and as-exercised (without regard to cashless exercise) basis) issued (or issuable to) such Other Holder (or its designee) pursuant to such Settlement Agreement and (y) the aggregate number of shares of Common Stock issuable upon exercise (without regard to any cashless exercise) of the Settlement Warrants subject to reduction, exchange, cancellation or otherwise pursuant to such Settlement Make-Whole Event, less (ii) one (1). Notwithstanding the foregoing, (iii)upon written notice to the Company at any time the Holder may elect not to accept the benefit of any such amended or modified term or condition, (iv) and (v), in which event the term or condition contained in this Agreement shall apply to the Holder as it was in effect immediately prior to such amendment or modification as if such amendment or modification never occurred with respect to the Holder. The provisions of this paragraph, as well as the terms Section 11 shall apply similarly and provisions of (A) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warrantiesequally to each Settlement Document.

Most Favored Nation. During Subject to the period from May 23limitations set forth in this Section 4.1, 2010 through completion the Company covenants that if it consummates any transaction (or series of related transactions) with Other Holders of Old Notes (other than one or more affiliates of the Second Closing, neither the Company nor the Company Subsidiaries shall enter into any additional agreements with any existing Holder) pursuant to which Old Notes are exchanged for other debt or future investors (including any Purchaser but excluding any Anchor Investor or CapGen) in the Company or any equity securities of the Company Subsidiaries that have the effect of establishing rights or otherwise benefiting such investor in a manner more favorable in any material respect to such investor than the rights and benefits established in favor of the Purchasers by this Agreement(each an “Other Exchange”) (excluding, unless, in any such case, each Purchaser will be given a copy of such additional agreement and has been offered the opportunity to receive such rights and benefits of such additional agreement within 60 days of the later of the execution of such additional agreement and May 23, 2010. Such Purchaser shall notify the Company in writing, within 30 days after the date it receives a copy of such additional agreement, of its election to receive the rights and benefits set forth therein. For for the avoidance of doubt, each Purchaser will receive a copy the conversion of each additional agreement agreed the Old Notes pursuant to with one the terms of the indenture governing the same), at any time or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor or CapGen). Without limiting the foregoingfrom time to time, the Company shall not offer any investors will, no later than two (other 2) Business Days after the Company’s disclosure on Form 8-K (or in another report filed by the Company under the Exchange Act as permitted by the rules and regulations thereunder) of the consummation of each and every such Other Exchange, deliver to the Holder a written notice (an “MFN Notice”) of each and every such Other Exchange and the publicly-disclosed terms and conditions thereof. Following its delivery of an MFN Notice, the Company will, upon execution and delivery to the Company by the Holder of a confidentiality agreement no less favorable to the Company than the Anchor Investors or CapGen) in any other capital raising transaction occurring at the same time as the transactions contemplated by this Confidentiality Agreement, terms more favorable, in form provide the Holder with all non-public information disclosed by or substance, than those offered on behalf of the Company to any Other Holders in connection with the Private Placement, unless applicable Other Exchange (as well as any additional non-public information as the Purchasers are also provided Holder may reasonably request through the Election Deadline (as defined below) in connection with such terms or have consented thereto in writing; provided, however, that for purposes of this Section 3.12, the Purchasers hereby consent to the Company’s entry into (i) the CapGen Investment Agreement, (ii) the Revised Stock Purchase Agreements, (iii) the letter agreement dated as its evaluation of the date hereof applicable Other Exchange). The Holder may, at its option and in its sole discretion, elect (which election may be revoked by the Holder at any time prior to its consummation of such Other Exchange) to participate in any such Other Exchange (through a subsequent closing of such Other Exchange or subject to such other procedures as may be agreed to between the Company and CapGen (the Holder, and the related agreements attached theretoin any event as may be permitted by applicable securities laws), on the same terms and conditions applicable to such Other Holders that participated therein (ivprovided that the Holder will instead be required to surrender its MFN Notes (as defined below) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (v) the letter agreement dated as of the date hereof between the Company and Fir Tree Value Master Fund, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC (collectively, the “Fir Tree Investors”) (the “Fir Tree Investor Letter”)in connection with such Other Exchange, and the terms and conditions thereof in each case in Holder may only participate therein up to the form previously delivered aggregate amount of MFN Notes that it holds), by delivering to the Company to written notice of such election by no later than 5:00 p.m. (California time) on the Purchasers. For the purposes of this Agreement, all parties agree that the terms and conditions of those documents referred to in clauses third (i), (ii), (iii), (iv3rd) and (v), of this paragraph, as well as the terms and provisions of (A) the letter agreement dated as Business Day after its receipt of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor applicable MFN Notice (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warranties.the

Most Favored Nation. During Shortly before the period from May 23, 2010 through completion execution of the Second Closing, neither the Company nor the Company Subsidiaries shall enter into any additional agreements with any existing or future investors (including any Purchaser but excluding any Anchor Investor or CapGen) in the Company or any of the Company Subsidiaries that have the effect of establishing rights or otherwise benefiting such investor in a manner more favorable in any material respect to such investor than the rights and benefits established in favor of the Purchasers by this Agreement, unlessGigCapital4 may have entered into, in any such caseor concurrently with, each Purchaser will be given a copy of such additional agreement and has been offered the opportunity to receive such rights and benefits of such additional agreement within 60 days of the later of or shortly after, the execution of such additional agreement and May 23this Agreement, 2010. Such Purchaser shall notify the Company in writingGigCapital4 may enter into, within 30 days after the date it receives a copy of such additional agreement, of its election to receive the rights and benefits set forth therein. For the avoidance of doubt, each Purchaser will receive a copy of each additional agreement agreed to separate agreements with one or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor the “Additional Investors”) for the purchase and sale of GigCapital4 common stock imposing restrictions on dispositions of GigCapital4 common stock by the Additional Investors similar to those herein ((i) and (ii) collectively, the “Additional Investor or CapGenAgreements”). Without limiting GigCapital4 agrees not to provide the foregoing, Additional Investors material terms in the Company shall not offer any investors (other Additional Investor Agreements that are more favorable to such Additional Investors than the Anchor terms provided to the Investors or CapGen) in any other capital raising transaction occurring at the same time as the transactions contemplated by this Agreement, terms more favorable, in form or substance, than those offered in connection with the Private Placement, unless the Purchasers are also provided with such terms or have consented thereto in writing; provided, however, except that for purposes of this Section 3.12, the Purchasers hereby consent to the Company’s entry into (i) the CapGen Investment Additional Investor Agreements for Additional Investors (including with such Additional Investors’ affiliates) who are not parties to a Note Subscription Agreement (as defined in the Merger Agreement) will, solely for the purposes of the Additional Investor Agreements to which such Additional Investors are a party, have an expanded definition of what constitutes a Company Material Adverse Effect for the purposes of Section 6(c), and this shall not constitute a breach of this Section 4(g) or provide any rights to either Investor notwithstanding the subsequent sentence and (ii) the Revised Stock Purchase Agreements, (iiiAdditional Investor Agreements may provide that the ratable reduction in the number of Shares contemplated in Section 4(b) the letter agreement dated as of the date hereof between the Company and CapGen (and the related agreements attached theretoapplies for purposes beyond Section 4(b), (iv) including by ratably reducing the letter agreement dated as number of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (v) the letter agreement dated as of the date hereof between the Company and Fir Tree Value Master Fund, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC (collectively, the “Fir Tree Investors”Shares subject to Section 1(a) (the “Fir Tree Investor Letter”)or, and the terms and conditions thereof in each case in the form previously delivered by the Company to the Purchasers. For the purposes of this Agreement, all parties agree that the terms and conditions of those documents referred to in clauses (i), clause (ii), (iii), (ivthe section(s) and (v), of this paragraphsuch Additional Investor Agreements containing the provisions analogous to those set forth in Section 1(a) or Section 4(b) hereof, as well as applicable). In the event that GigCapital4 provides the Additional Investors with material terms in the Additional Investor Agreements that are more favorable than the terms provided to the Investors in this Agreement at any time prior to the Business Combination Closing Date, GigCapital4 shall promptly inform each Investor of such more favorable terms, and provisions of (A) each Investor shall have the letter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), shall be deemed Previously Disclosed, as that term is used mutual right to elect to have such more favorable terms included herein, including for in which case the purposes of modifying Parties shall promptly amend this Agreement to effect the Company’s representations and warrantiessame.

Most Favored Nation. During In the period from May 23, 2010 through completion event that at any time on or prior to the earlier to occur of the Second Closing, neither consummation of the eToys Merger or the public announcement by the Company nor of the termination of the eToys Merger (the date thereof, as it may be definitionally extended for purposes of Section 9 and this Section 23 by the Company Subsidiaries shall enter in its sole discretion, the “MFN Period Expiration Date”) the Company issues, or enters into any additional agreements with agreement to issue, any existing or future investors of its equity securities, including any securities (including debt securities) that are convertible or exercisable into, or exchangeable for, such equity securities, to one or more Other Purchasers, and if, in connection with such issuance, the Other Purchasers to which such securities are issued (the “Favored Issuees”) (A) receive any Purchaser but excluding any Anchor Investor or CapGeneconomic terms (including, without limitation, price, the effective common stock conversion price, the percentage warrant coverage and the warrant exercise price) in the Company or any of the Company Subsidiaries that have the effect of establishing rights or otherwise benefiting such investor in a manner more favorable in any material respect incident to such investor than issuance which are superior to the rights and benefits established in favor economic terms applicable to the Purchaser’s purchase of the Purchasers by securities pursuant to this Agreement, unless(B) are accorded investor rights vis-à-vis the Company that are either (i) superior to similar rights accorded to the Purchaser pursuant to this Agreement, or (ii) in any such case, each Purchaser will be given a copy addition to the corpus of such additional agreement and has been offered rights conferred on the opportunity Purchaser pursuant to receive such rights and benefits of such additional agreement within 60 days this Agreement, or (C) are issued securities with any powers, rights, preferences or privileges senior to those of the later of the execution of such additional agreement and May 23Convertible Preferred Stock, 2010. Such Purchaser shall notify the Company in writing, within 30 days after the date it receives a copy of such additional agreement, of its election to receive the rights and benefits set forth therein. For the avoidance of doubt, each Purchaser will receive a copy of each additional agreement agreed to with one or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor or CapGen). Without limiting the foregoing, then the Company shall not offer any investors timely provide to the Purchaser the right to participate in such issuance, on the identical terms and conditions as the Favored Issuees (based upon the Purchaser’s U.S.$1,799,996.88 investment hereunder), in exchange for the cancellation of all of the Purchaser’s rights under this Agreement, the Warrants and the Certificate of Designation, other than the Anchor Investors or CapGen) in any other capital raising transaction occurring at right of the same time as Purchaser to retain 50% of the transactions contemplated Warrants purchased by the Purchaser pursuant to this Agreement, terms more favorable, in form or substance, than those offered in connection with the Private Placement, unless the Purchasers are also provided with such terms or have consented thereto in writing; provided, however, that for purposes of this Section 3.12, the Purchasers hereby consent Agreement (subject to the Company’s entry into (i) the CapGen Investment Agreement, (ii) the Revised Stock Purchase Agreements, (iii) the letter agreement dated as original terms of the date hereof between the Company and CapGen (and the related agreements attached theretosuch Warrants), (iv) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (v) the letter agreement dated as of the date hereof between the Company and Fir Tree Value Master Fund, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC (collectively, the “Fir Tree Investors”) (the “Fir Tree Investor Letter”), and the terms and conditions thereof in each case in the form previously delivered by the Company to the Purchasers. For the purposes of this Agreement, all parties agree that the terms and conditions of those documents referred to in clauses (i), (ii), (iii), (iv) and (v), of this paragraph, as well as the terms and provisions of (A) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warranties.

Most Favored Nation. During the period from May 23, 2010 through completion of the Second Closing, neither the The Company nor the Company Subsidiaries shall enter into any additional agreements with any existing or future investors (including any Purchaser but excluding any Anchor Investor or CapGen) in the Company or any of the Company Subsidiaries that have the effect of establishing rights or otherwise benefiting such investor in a manner more favorable in any material respect to such investor than the rights hereby represents and benefits established in favor of the Purchasers by this Agreement, unless, in any such case, each Purchaser will be given a copy of such additional agreement and has been offered the opportunity to receive such rights and benefits of such additional agreement within 60 days of the later of the execution of such additional agreement and May 23, 2010. Such Purchaser shall notify the Company in writing, within 30 days after the date it receives a copy of such additional agreement, of its election to receive the rights and benefits set forth therein. For the avoidance of doubt, each Purchaser will receive a copy of each additional agreement agreed to with one or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor or CapGen). Without limiting the foregoing, the Company shall not offer any investors (other than the Anchor Investors or CapGen) in any other capital raising transaction occurring at the same time as the transactions contemplated by this Agreement, terms more favorable, in form or substance, than those offered in connection with the Private Placement, unless the Purchasers are also provided with such terms or have consented thereto in writing; provided, however, that for purposes of this Section 3.12, the Purchasers hereby consent to the Company’s entry into (i) the CapGen Investment Agreement, (ii) the Revised Stock Purchase Agreements, (iii) the letter agreement dated warrants as of the date hereof between the Company and CapGen (covenants and the related agreements attached thereto), (iv) the letter agreement dated as of agrees from and after the date hereof between that if the Company terms offered to any Person (including, without limitation, any security (as amended, exchanged, modified or waived from time to time) issued to any Person in connection with the Securities Purchase Agreement (each., an “Other Security”) with respect to any consent, release, amendment, exchange, settlement or waiver relating to any Other Security or the terms, conditions and Midtown Acquisitions L.P. transactions contemplated hereby or thereby (each a “Settlement Document”, and such securities, assets and/or rights, as applicable, issued in connection therewith, collectively, the “Davidson Investor LetterOther Exchange Securities”), and (v) the letter agreement dated as is or will be more favorable to such Person than those of the date hereof between Holder and this Agreement, as determined by the Company Holder in its reasonable discretion, the Holder may, at its option, exchange all, or any part, of the Exchange Warrant and Fir Tree Value Master Fundsuch proportional amount of Exchange Shares issued in connection therewith hereunder (as adjusted for stock splits, LPstock dividends, Fir Tree Capital Opportunity Master Fundstock combinations, LPrecapitalizations and similar events) (in each case, Fir Tree Mortgage Opportunity Master Fundsubject to reduction for any net exchange, LP and Fir Tree REOF II Master Fund, LLC if applicable) (collectively, the “Fir Tree Investors”) (the “Fir Tree Investor LetterReturned Securities”), and for such amount of Other Exchange Securities (subject to reduction for any net exchange, if applicable) calculated using the terms and conditions thereof exchange ratios in each case such applicable Settlement Document pursuant to documentation in the form previously delivered by of such Settlement Document (excluding any term or condition more restrictive to the Holder than as set forth herein or that would otherwise disproportionally and adversely affect the Holder), mutatis mutandis. If, and whenever on or after the date hereof, the Company enters into a Settlement Document, then the Company shall provide notice thereof to the PurchasersHolder promptly following the occurrence thereof. For the purposes The provisions of this Agreement, all parties agree that the terms Section 24 shall apply similarly and conditions of those documents referred equally to in clauses (i), (ii), (iii), (iv) and (v), of this paragraph, as well as the terms and provisions of (A) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warrantieseach Settlement Document.

Most Favored Nation. During the period from May 23, 2010 through completion of the Second Closing, neither the Company nor the Company Subsidiaries shall enter into any additional agreements with any existing or future investors (including any Purchaser but excluding any Anchor Investor or CapGen) in the Company or any of the Company Subsidiaries that have the effect of establishing rights or otherwise benefiting such investor in a manner more favorable in any material respect to such investor than the rights The Buyer hereby represents and benefits established in favor of the Purchasers by this Agreement, unless, in any such case, each Purchaser will be given a copy of such additional agreement and has been offered the opportunity to receive such rights and benefits of such additional agreement within 60 days of the later of the execution of such additional agreement and May 23, 2010. Such Purchaser shall notify the Company in writing, within 30 days after the date it receives a copy of such additional agreement, of its election to receive the rights and benefits set forth therein. For the avoidance of doubt, each Purchaser will receive a copy of each additional agreement agreed to with one or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor or CapGen). Without limiting the foregoing, the Company shall not offer any investors (other than the Anchor Investors or CapGen) in any other capital raising transaction occurring at the same time as the transactions contemplated by this Agreement, terms more favorable, in form or substance, than those offered in connection with the Private Placement, unless the Purchasers are also provided with such terms or have consented thereto in writing; provided, however, that for purposes of this Section 3.12, the Purchasers hereby consent to the Company’s entry into (i) the CapGen Investment Agreement, (ii) the Revised Stock Purchase Agreements, (iii) the letter agreement dated warrants as of the date hereof between and covenants and agrees that none of the Company and CapGen terms offered to any person on the date hereof or within sixty days hereafter to any person with respect to any purchase of, amendment of or waiver regarding any warrant to purchase Common Stock (and the related agreements attached thereto), (ivor other similar instrument) the letter agreement dated outstanding as of the date hereof between the Company and Midtown Acquisitions L.P. (the each an “Davidson Investor LetterOther Purchase Agreement”), is at a higher Purchase Price per Warrant or is otherwise more favorable to such person than those of the Seller and (v) the letter agreement dated as of this Agreement. If, on the date hereof between the Company and Fir Tree Value Master Fund, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC (collectivelyor within sixty days hereafter, the “Fir Tree Investors”) (Buyer enters into an Other Purchase Agreement at a higher Purchase Price per Warrant or with more favorable terms or conditions to such person than those of the “Fir Tree Investor Letter”), Seller and the terms and conditions thereof in each case in the form previously delivered by the Company to the Purchasers. For the purposes of this Agreement, all parties agree then (i) the Buyer shall provide notice thereof to the Seller promptly following the occurrence thereof and (ii) Purchase Price per Warrant stated in this Agreement shall be, without any further action by the Seller or the Buyer, automatically amended and modified in an economically and legally equivalent manner such that the Seller shall receive the benefit of the higher Purchase Price Per Warrant or more favorable terms and /or conditions (as the case may be) set forth in such Other Purchase Agreement, provided that upon written notice to the Buyer at any time the Seller may elect not to accept the benefit of those documents referred any such amended or modified term or condition, in which event the term or condition contained in this Agreement shall apply to the Seller as it was in clauses (i), (ii), (iii), (iv) and (v), effect immediately prior to such amendment or modification as if such amendment or modification never occurred with respect to the Seller. The provisions of this paragraph, as well as the terms Section 4.15 shall apply similarly and provisions of (A) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warrantiesequally to each Other Purchase Agreement.

Most Favored Nation. During the period from May 23, 2010 through completion While any of the Second ClosingSecurities remain outstanding, neither the Company nor the Company Subsidiaries shall not enter into any additional agreements public or private offering of its securities (including securities convertible into shares of Common Stock) with any existing individual or future investors entity (including any Purchaser but excluding any Anchor Investor or CapGenan “Other Investor”) in the Company or any of the Company Subsidiaries that have has the effect of establishing rights or otherwise benefiting such investor Other Investor in a manner more favorable in any material respect to such investor Other Investor than the rights and benefits established in favor of the Purchasers Investor by this Agreement, Agreement or the Series C Preferred Shares or Warrant unless, in any such case, each Purchaser will be given a copy of such additional agreement and the Investor has been offered provided with written notice (the opportunity “Company Notice”) and no less than 10 days to receive such exercise the right, but not the obligation, to exchange all of the Securities held by it (and its rights and benefits of such additional agreement within 60 days obligations hereunder) for an equivalent amount of the later of the execution of such additional agreement securities to be sold to, and May 23, 2010. Such Purchaser shall notify the Company in writing, within 30 days after the date it receives a copy of such additional agreement, of its election to receive the rights and benefits set forth thereinobligations to be established with, the Other Investor, based on the purchase price paid by Investor under this Agreement for the Securities so exchanged, except that Investor shall retain (i) a more favorable Warrant exercise price of the Other Investor and (ii) a senior liquidation preference to the Other Investor. For In order to exercise such right, an Investor shall send the avoidance Company a written notice of doubtits exercise (the “Investor Notice”). If the Investor Notice is not received by the Company within ten (10) days of Investor’s receipt of the Company Notice, each Purchaser will receive a copy the rights under this Section shall terminate with respect to such offering of each additional agreement agreed to with one or more other investors the Company’s securities. Notwithstanding the foregoing, this Section 9.8 shall not include: (i) securities issued in an underwritten public offering by the Company (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor or CapGen). Without limiting the foregoing, the Company shall not offer any investors (other than the Anchor Investors or CapGen) in any other capital raising transaction occurring at the same time as the transactions contemplated by this Agreement, terms more favorable, in form or substance, than those offered in connection with the Private Placement, unless the Purchasers are also provided with such terms or have consented thereto in writing; provided, however, that for purposes of this Section 3.12, the Purchasers hereby consent warrants issued to the Company’s entry into (i) the CapGen Investment Agreement, underwriters); (ii) the Revised Stock Purchase Agreementsissuance and/or sale of securities by the Company in connection with a business acquisition, joint venture or partnership; (iii) the letter agreement dated as issuance by the Company of shares of common stock upon the exercise of a stock option or warrant or the conversion of a security outstanding on the date hereof between the Company and CapGen (and the related agreements attached thereto), hereof; (iv) the letter agreement dated as issuance of the date hereof between securities by the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), as compensation; and (v) the letter agreement dated issuance of securities by the Company under agreements already in place and disclosed to Investors as of the date hereof between the Company and Fir Tree Value Master Fund, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC (collectively, the “Fir Tree Investors”) (the “Fir Tree Investor Letter”), and the terms and conditions thereof in each case in the form previously delivered by the Company to the Purchasers. For the purposes of this Agreement, all parties agree that the terms and conditions of those documents referred to in clauses (i), (ii), (iii), (iv) and (v), of this paragraph, as well as the terms and provisions of (A) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warranties.

Most Favored Nation. During Subject to the period next sentence, from May 23the Closing Date until the earlier of (i) twelve (12) months after the Closing Date, 2010 through completion of (ii) the Second Closingday after the date on which the Company’s Common Stock is listed on a U.S. national securities exchange, neither or (iii) the Company nor date on which the Company Subsidiaries shall enter into any additional agreements with any existing or future investors (including any Purchaser but excluding any Anchor Investor or CapGen) in the Company or no longer holds any of the Shares acquired by it hereunder, the Company Subsidiaries shall not consummate any unregistered private offering or an initial (but not any subsequent) public offering for cash consideration of its capital stock (or securities convertible into shares of capital stock) (the “Other Securities”) to any individual or entity (an “Other Investor”) that have provides such Other Investor with any right, benefit, term or condition relating to the effect of establishing rights or otherwise benefiting such investor in a manner Shares that is more favorable in any material respect to such investor the Other Investor than the rights rights, benefits, terms and benefits conditions relating to the Shares established in favor of the Purchasers by Purchaser pursuant to this AgreementAgreement and the other Transaction Documents, unless, in any such case, each Purchaser will be given a copy of such additional agreement and has been offered the opportunity to receive such rights and benefits of such additional agreement within 60 days of the later of the execution of such additional agreement and May 23, 2010. Such Purchaser shall notify the Company in writing, within 30 days after the date it receives a copy of such additional agreement, of its election to receive the rights and benefits set forth therein. For the avoidance of doubt, each Purchaser will receive a copy of each additional agreement agreed to with one or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor or CapGen). Without limiting the foregoing, the Company shall not offer any investors (other than the Anchor Investors or CapGen) in any other capital raising transaction occurring at the same time as the transactions contemplated by this Agreement, terms more favorable, in form or substance, than those offered in connection with the Private Placement, unless the Purchasers are also provided with such terms or have consented thereto in writing; provided, however, that for purposes of this Section 3.12, the Purchasers hereby consent to the Company’s entry into (i) the CapGen Investment AgreementCompany notifies the Purchaser of such more favorable right, benefit, term or condition within two (2) Business Days prior to the issuance of the Other Securities, and (ii) Purchaser has been provided with the opportunity to execute a definitive written agreement or agreements between the Company and the Purchaser (which may be an amendment to this Agreement or another Transaction Document), duly executed by the Company, providing the Purchaser such right, benefit, term or condition, solely with respect to the Shares then held by the Purchaser, not later than the date of issuance of the Other Securities. Notwithstanding anything in the preceding sentence to the contrary, the foregoing shall not apply to (i) the price of the other Securities (but without prejudice to Section 4.11) or the number thereof, (ii) any provision that is solely related to any regulation imposed on, or tax provisions applicable to, the Revised Stock Purchase AgreementsOther Investor (unless the Purchaser is subject to the same or similar regulations or requirements), (iii) any provision that is personal to the letter agreement dated as Other Investor solely based on the place of organization or headquarters, or organizational form of or governing documents of (or regulations applicable to) the date hereof between Other Investor (unless the Company and CapGen (and Purchaser has the related agreements attached theretosame or similar place of organization or headquarters, or organizational form, or regulations applicable to the investor), or (iv) any provision that relates to commercial rights that primarily involve or are ancillary to the letter agreement dated as provision of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (v) the letter agreement dated as of the date hereof between the Company and Fir Tree Value Master Fund, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC (collectivelyservices, the “Fir Tree Investors”) (purchase or sale of goods or other assets, or the “Fir Tree Investor Letter”), and the terms and conditions thereof in each case in the form previously delivered by the Company to the Purchasers. For the purposes grant or receipt of this Agreement, all parties agree that the terms and conditions of those documents referred to in clauses (i), (ii), (iii), (iv) and (v), of this paragraph, as well as the terms and provisions of (A) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warrantiesrights under a license.

Most Favored Nation. During the period from May 23, 2010 through completion The Company hereby represents and warrants as of the Second Closing, neither the Company nor the Company Subsidiaries shall enter into any additional agreements with any existing or future investors (including any Purchaser but excluding any Anchor Investor or CapGen) in the Company or any date hereof that none of the Company Subsidiaries that have terms offered to any Person relating to the effect exchange of establishing rights any Warrants and any subsequent amendment thereto (each an “Exchange Document”), is or otherwise benefiting such investor in a manner will be more favorable in any material respect to such investor Person than the rights and benefits established in favor those of the Purchasers by Holder and this Agreement, unless, in any such case, each Purchaser will be given a copy of such additional agreement and has been offered the opportunity to receive such rights and benefits of such additional agreement within 60 days of the later of the execution of such additional agreement and May 23, 2010. Such Purchaser shall notify the Company in writing, within 30 days after the date it receives a copy of such additional agreement, of its election to receive the rights and benefits set forth therein. For the avoidance of doubt, each Purchaser will receive a copy of each additional agreement agreed to with one or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor or CapGen). Without limiting the foregoing, the Company shall not offer any investors Agreement (other than the Anchor Investors or CapGen) in any other capital raising transaction occurring at the same time as the transactions contemplated by this Agreement, terms more favorable, in form or substance, than those offered in connection with the Private Placement, unless the Purchasers are also provided with such terms or have consented thereto in writingreimbursement of legal fees); provided, however, that for purposes the purpose of this Section 3.125(n) the terms offered to any Person in an Exchange Document shall be evaluated in their entirety and be compared to the terms offered to the Holder pursuant to this Agreement in their entirety. If, and whenever on or after the date hereof, the Purchasers hereby consent to the Company’s entry Company enters into (i) the CapGen Investment Agreementan Exchange Document, (ii) the Revised Stock Purchase Agreements, (iii) the letter agreement dated as of the date hereof between then the Company and CapGen (and the related agreements attached thereto), (iv) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. shall provide written notice (the “Davidson Investor LetterExchange Document Notice”)) thereof to the Holder promptly following the occurrence thereof. The Holder shall have five (5) Business Days from the receipt of an Exchange Document Notice to elect to get the benefit of, and (v) the letter agreement dated as be subject to, all of the date hereof between rights and obligations under the Company and Fir Tree Value Master Fund, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC (collectivelyrelated Exchange Document. In the event of any such election by the Holder, the “Fir Tree Investors”) (the “Fir Tree Investor Letter”), and the terms and conditions thereof in each case in the form previously delivered aggregate consideration payable by the Company to the PurchasersHolder (x) shall equal (i) the aggregate consideration payable in respect of the exchange of the Warrants pursuant to such Exchange Document, minus the aggregate consideration paid to the Holder under this Agreement (the consideration to the Holder, for the avoidance of doubt, is $958,800), and (y) shall be payable in cash by wire transfer of immediately available funds unless the Company and the Holder shall mutually agree in writing upon the issuance of shares of Common Stock in whole or in part in lieu thereof. For the purposes of this Section 5(n), any shares of Common Stock issued pursuant to an Exchange Document or the Holder’s election hereunder will be valued at 82% of the arithmetic average of the Weighted Average Prices (as defined in the Exchange Note) for the three (3) Trading Days immediately preceding the entry into such Exchange Agreement, all parties agree . In the event that the terms and conditions of those documents referred Holder shall not deliver a written notice to in clauses (i), (ii), (iii), (iv) and (v), the Company electing to receive the benefits of this paragraphSection 5(n) on or prior to the fifth (5th) Business Day after the delivery of an Exchange Document Notice by the Company, as well as then the terms Holder’s rights with respect to the applicable Exchange Document shall terminate and be of no further force and effect. The provisions of this Section 5(n) shall apply similarly and equally to each Exchange Document. This Section 5(n) shall not apply to any Exchange Document that provides for the payment of aggregate consideration (Aincluding cash, indebtedness and securities as valued pursuant to this Section 5(n)) the letter agreement dated as of the date hereof between by the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warrantiesless than $250,000.

Most Favored Nation. During Except as relates to (a) Commercial Arrangements and (b) the period from May 23letter agreement, 2010 through completion dated as of September 12, 2023, among SPAC, X-energy and Xxxxxxxxxx Enterprises, LLC (as in effect as of the Second Closingdate of this Subscription Agreement and without giving effect to any subsequent waivers or other modifications), neither if, prior to the Company nor Closing Date or otherwise in connection with the Company Subsidiaries shall enter into any additional agreements with any existing or future investors (including any Purchaser but excluding any Anchor Investor or CapGen) in the Company or any consummation of the Company Subsidiaries transactions contemplated by the Business Combination Agreement, SPAC issues or agrees to issue equity securities, or securities convertible into equity securities, of SPAC, and such newly issued securities would have material terms that have the effect of establishing rights or otherwise benefiting such investor in a manner are more favorable in any material respect to such investor (the “Favored Terms”) than the rights and benefits established terms and/or conditions contained in favor of the Purchasers by this Subscription Agreement, unlessthen SPAC will provide the Investor with written notice thereof, in any such case, each Purchaser will be given together with a copy of all documentation relating to the Favored Terms and, upon request of the Investor, any additional information related to the Favored Terms. SPAC will provide such additional agreement notice to the Investor promptly (and has been offered in any event within two business days) following (i) the opportunity entry into any definitive documentation related to receive the Favored Terms or (ii) if such issuances will be made pursuant to definitive documentation in existence on or prior to the date of this Subscription Agreement, such time as SPAC becomes aware that such issuance on Favored Terms is reasonably likely to occur. In the event that the Investor determines that the Favored Terms as a whole are preferable to the terms and/or conditions contained in this Subscription Agreement, the Investor will notify SPAC in writing within one business day following the Investor’s receipt of such notice from SPAC. Promptly after receipt of such written notice from the Investor, but in any event within one business day, SPAC will amend and restate this Subscription Agreement to contain the Favored Terms in such manner as provides the Investor with substantially identical rights and benefits of such additional agreement within 60 days of privileges to those contained in the later of Favored Terms. Notwithstanding the execution of such additional agreement and May 23foregoing, 2010. Such Purchaser the Investor shall notify the Company in writing, within 30 days after the date it receives a copy of such additional agreement, of its election not be entitled to receive the rights and benefits set forth therein. For Favored Terms to the extent such terms are included in documentation related to a transaction (including, for the avoidance of doubt, each Purchaser will receive a copy transaction involving the issuance of each additional agreement agreed to with one equity or more other investors (including any additional agreement debt securities) entered into by SPAC or its subsidiaries with any Purchaser but excluding any agreements with any Anchor Investor or CapGen). Without limiting the foregoingcustomers, the Company shall not offer any investors (strategic partners and/or other than the Anchor Investors or CapGen) in any other capital raising transaction occurring at the same time as the transactions contemplated by this Agreement, terms more favorable, in form or substance, than those offered in connection with the Private Placement, unless the Purchasers are also provided with such terms or have consented thereto in writing; provided, however, that for purposes of this Section 3.12, the Purchasers hereby consent commercial counterparties relating to the Company’s entry into (i) the CapGen Investment Agreementdesign, (ii) the Revised Stock Purchase Agreementsmanufacture, (iii) the letter agreement dated as production and delivery of the date hereof between the Company small modular nuclear reactors and CapGen (and the related agreements attached thereto), (iv) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. technology (the “Davidson Investor LetterCommercial Arrangements”), and (v) the letter agreement dated as of the date hereof between the Company and Fir Tree Value Master Fund, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC (collectively, the “Fir Tree Investors”) (the “Fir Tree Investor Letter”), and the terms and conditions thereof in each case in the form previously delivered by the Company to the Purchasers. For the purposes of this Agreement, all parties agree that the terms and conditions of those documents referred to in clauses (i), (ii), (iii), (iv) and (v), of this paragraph, as well as the terms and provisions of (A) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warranties.

Most Favored Nation. During the period from May 23, 2010 through completion of the Second Closing, neither the The Company nor the Company Subsidiaries shall enter into any additional agreements with any existing or future investors (including any Purchaser but excluding any Anchor Investor or CapGen) in the Company or any of the Company Subsidiaries that have the effect of establishing rights or otherwise benefiting such investor in a manner more favorable in any material respect to such investor than the rights hereby represents and benefits established in favor of the Purchasers by this Agreement, unless, in any such case, each Purchaser will be given a copy of such additional agreement and has been offered the opportunity to receive such rights and benefits of such additional agreement within 60 days of the later of the execution of such additional agreement and May 23, 2010. Such Purchaser shall notify the Company in writing, within 30 days after the date it receives a copy of such additional agreement, of its election to receive the rights and benefits set forth therein. For the avoidance of doubt, each Purchaser will receive a copy of each additional agreement agreed to with one or more other investors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor or CapGen). Without limiting the foregoing, the Company shall not offer any investors (other than the Anchor Investors or CapGen) in any other capital raising transaction occurring at the same time as the transactions contemplated by this Agreement, terms more favorable, in form or substance, than those offered in connection with the Private Placement, unless the Purchasers are also provided with such terms or have consented thereto in writing; provided, however, that for purposes of this Section 3.12, the Purchasers hereby consent to the Company’s entry into (i) the CapGen Investment Agreement, (ii) the Revised Stock Purchase Agreements, (iii) the letter agreement dated warrants as of the date hereof between the Company and CapGen (covenants and the related agreements attached thereto), (iv) the letter agreement dated as of agrees from and after the date hereof between until July 12, 2023, that none of the Company and Midtown Acquisitions L.P. terms offered to any other holder of warrants issued on or around the time of the 2020 Warrants (the each “Davidson Investor LetterOther Warrants”) with respect to any amendment, modification or waiver of such Other Warrants (an “Other Warrant Agreement”), is or will be more favorable to such other holder than those of the Holder and (v) this agreement, unless such terms are concurrently offered to the letter agreement dated as of Holder. If, and whenever on or after the date hereof between until July 12, 2023, the Company and Fir Tree Value Master Fundenters into an Other Warrant Agreement relating to such Other Warrants, LP, Fir Tree Capital Opportunity Master Fund, LP, Fir Tree Mortgage Opportunity Master Fund, LP and Fir Tree REOF II Master Fund, LLC then (collectively, i) the Company shall provide notice thereof to the Holder promptly following the occurrence thereof (“Fir Tree InvestorsNotice of Transaction”) and (the “Fir Tree Investor Letter”), and the terms and conditions thereof in each case in the form previously delivered by the Company to the Purchasers. For the purposes of this Agreement, all parties agree that ii) the terms and conditions of those documents referred to this agreement shall be, without any further action by the Holder or the Company, automatically amended and modified in clauses an economically and legally equivalent manner such that the Holder shall receive the benefit of the more favorable terms and the obligation of the conditions (ias the case may be) set forth in such Other Warrant Agreement (including, if applicable, the issuance of additional underlying shares of Common Stock), provided that upon written notice to the Company within five (ii)5) days after receiving a Notice of Transaction, (iii)the Holder may provide written notice to the Company electing not to accept all of the benefits of any such amended and modified term and the related conditions, (iv) and (v), of this paragraph, as well as in which event the terms and conditions contained in this agreement shall apply to the Holder as it was in effect immediately prior to such amendment or modification as if such amendment or modification never occurred with respect to the Holder. The provisions of (A) the letter agreement dated as of the date hereof between the Company this paragraph shall apply similarly and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letterequally to each such Other Warrant Agreement.”) and (B) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”), shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warranties.