Common use of Most Favored Nation Clause in Contracts

Most Favored Nation. During the period from May 23, 2010 through 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 future investors 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 Anchor Investors by the Transaction Documents, unless, in any such case, each 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 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, 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. Without limiting the foregoing, the Company shall not offer any investors in the Other Private Placements, or any other capital raising transaction occurring at the same time as the transactions contemplated by the Transaction Documents on terms more favorable, in form or substance, than those offered in connection with the Investment, unless the Anchor Investors are also provided with such terms or has consented thereto in writing; provided, however, that for purposes of this Section 3.10, the Anchor Investors hereby consent to the Company’s entry into (i) the CapGen Investment Agreement, (ii) 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”), (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), (v) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vi) 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 Anchor 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 (vi) of this 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 Company nor the Company Subsidiaries shall enter into any additional agreements, or modify agreements with any existing agreements or Transaction Documents, including the CapGen Investment Agreement or any other agreements with 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 Anchor Investors Purchasers by the Transaction Documentsthis Agreement, unless, in any such case, each Anchor Investor Purchaser 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 Anchor Investor Purchaser 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, the Anchor Investors each Purchaser 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 investorsinvestors (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 the Other Private Placements, or any other capital raising transaction occurring at the same time as the transactions contemplated by the Transaction Documents on this Agreement, terms more favorable, in form or substance, than those offered in connection with the InvestmentPrivate Placement, unless the Anchor Investors Purchasers are also provided with such terms or has have consented thereto in writing; provided, however, that for purposes of this Section 3.103.12, the Anchor Investors Purchasers hereby consent to the Company’s entry into (i) the CapGen Investment Agreement, (ii) 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”)Revised Stock Purchase Agreements, (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), (viv) 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 Anchor 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 abovePurchasers. 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 (vi) v), of this paragraph 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 if the Second ClosingBorrower engages in any future financing transactions with a third party investor, neither the Company nor Borrower will provide the Company Subsidiaries shall enter into Holder with written notice (the “MFN Notice”) thereof promptly but in no event less than 10 days prior to closing any additional agreements, or modify any existing agreements or Transaction Documents, including the CapGen Investment Agreement or any other agreements with future investors in the Company or any of the Company Subsidiaries (including any Additional Agreements entered into financing transactions. Included 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 Anchor Investors by the Transaction Documents, unless, in any such case, each Anchor Investor 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 or modified 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 or modified agreement within 60 days of written notice from the later of the execution of such additional or modified agreement and May 23, 2010. Such 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 doubtHolder, the Anchor Investors will receive a copy Borrower agrees to amend and restate the Securities (which may include the conversion terms of each additional or modified agreement (including any Additional Agreements entered into with any Additional Investors) agreed this Note), to with one or more other investorsbe identical to the instruments evidencing the subsequent investment. Without limiting Notwithstanding the foregoing, the Company this Section 4.4 shall not offer any investors apply in the Other Private Placements, or any other capital raising transaction occurring at the same time as the transactions contemplated by the Transaction Documents on terms more favorable, in form or substance, than those offered in connection with the Investment, unless the Anchor Investors are also provided with such terms or has consented thereto in writing; provided, however, that for purposes respect of this Section 3.10, the Anchor Investors 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 letter agreement dated as issuance of: (a) shares of Common Stock or options to employees, officers, consultants, advisors or directors of the date hereof between the Company and an Affiliate Borrower pursuant to any stock or option plan duly adopted for such purpose by a majority of the Carlyle Anchor Investor (and members of the related agreements attached thereto) (Board of Directors or a majority of the “Carlyle Investor Letter”)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 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), (v) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”)hereof, and (vic) 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 Anchor Investors; provided furtherinvestment of funds, however, that any proposed modification to any Investor Letter from but shall not include a transaction in which 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 (vi) of this paragraph 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 23The Investor, 2010 through the Second Closing, neither whether or not participating in any issuance by the Company nor of shares of Common Stock or any securities of the Company Subsidiaries shall enter which would entitle the holder thereof to acquire at any time shares of Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into any additional agreementsor exercisable or exchangeable for, or modify 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 existing agreements 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 receives such notice from the Investor of the exercise of its MFN Right on or Transaction Documentsprior 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 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 those of the securities issued in the Subsequent Financing (and, 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 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 CapGen Investment Agreement or any other agreements with future investors in physical exchange of securities. Not later than the Company or any 10th calendar day prior to the day of the Company Subsidiaries (including any Additional Agreements entered into with the Additional Investors) 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 Anchor Investors by the Transaction Documents, unless, in any such case, each 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 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, 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. 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 (a "Subsequent Financing Notice"), which notice shall describe in reasonable detail the Other Private Placements, or any other capital raising transaction occurring at proposed terms of the same time as the transactions contemplated by the Transaction Documents on terms more favorable, in form or substance, than those offered in connection with the Investment, unless the Anchor Investors are also provided with such terms or has consented thereto in writing; provided, however, that for purposes of this Section 3.10Subsequent Financing, the Anchor Investors hereby consent amount of proceeds intended to the Company’s entry into (i) the CapGen Investment Agreement, (ii) the letter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (be raised thereunder and the related agreements attached thereto) (the “Carlyle Investor Letter”), (iii) 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 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), (v) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vi) 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 Anchor 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 (vi) of this paragraph 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 ClosingRights Offering, 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 Anchor Investor Agreement, or any other agreements with existing or future investors 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 Anchor Investors CapGen by the Transaction Documents, unless, in any such case, each Anchor Investor 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 or modified agreement and May 23, 2010. Such Anchor Investor 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, the Anchor Investors CapGen 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. Without limiting the foregoing, the Company shall not offer any investors in the Other Private Placements, or any other capital raising transaction occurring at the same time as the transactions contemplated by the Transaction Documents 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 Investment, unless the Anchor Investors are CapGen is also provided with such terms or CapGen has consented thereto in writing; provided, however, that for purposes of this Section 3.10, the Anchor Investors 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 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”), (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) (the “CapGen Investor Letter”), (v) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vi) 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 Anchor InvestorsCapGen; provided further, however, that any proposed modification to any Investor Letter from the form of such Investor Letter last provided to the Anchor Investors CapGen 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’ 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 (vi) of this 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 From the period from May 23Effective Date until the 24 month anniversary thereof, 2010 through the Second Closingupon any Subsequent Financing, neither the Company nor may elect, in its sole discretion, to exchange all or some of the Shares then held by the Company Subsidiaries shall enter into any for additional agreements, or modify any existing agreements or Transaction Documents, including the CapGen Investment Agreement or any other agreements with future investors in the Company or any of the Company Subsidiaries securities (including any Additional Agreements entered into additional securities issued as part of a unit with the Additional Investorssuch security) 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 Anchor Investors by the Transaction Documents, unless, same type issued in any such case, each Anchor Investor will Subsequent Financing (such exchange to 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 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, 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. Without limiting the foregoing, the Company shall not offer any investors in the Other Private Placements, or any other capital raising transaction occurring made at the same time as the transactions contemplated by the Transaction Documents on terms more favorable, in form or substance, than those offered in connection with the Investment, unless the Anchor Investors are also provided with closing of such terms or has consented thereto in writing; provided, however, that for purposes of this Section 3.10, the Anchor Investors hereby consent to the Company’s entry into (i) the CapGen Investment Agreement, (ii) 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”Subsequent Financing), (iii) on 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), (v) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vi) 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 same terms and conditions thereof in each case in as the form previously delivered Subsequent Financing, based on the Purchase Price multiplied by the number of Shares being exchanged. By way of example, if the User undertakes a Subsequent Financing of convertible debentures and warrants, the Company shall have the right to participate in such Subsequent Financing and use the exchange of its Shares as consideration, on a $1 for $1 basis, in lieu of cash consideration. At least five (5) Trading Days prior to the Anchor Investors; provided furtherclosing of the Subsequent Financing, however, that any proposed modification to any Investor Letter from the form of such Investor Letter provided User shall deliver to the Anchor Investors and any proposed modification Company a written notice of such Investor Letter executed as its intention to effect a Subsequent Financing (“Financing Notice”). The Financing Notice will contain a summary 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 such Subsequent Financing. Upon receipt of the Financing Notice, the Company has until the close of the Trading Market on the third Trading Day following the Financing Notice to in clauses (i)make its election to exchange some, (ii), (iii), (iv), (v) and (vi) or all of this paragraph shall be deemed Previously Disclosed, as that term is used herein, including its Shares then held for the purposes securities offered in the Subsequent Financing as provided for herein. Additionally, in the event the User undertakes multiple Subsequent Financing, the Company will continue to have the right to exchange any shares (but not warrants) received in any prior Subsequent Financing of modifying securities into securities offered in the Company’s representations and warrantiescurrent Subsequent Financing as provided for herein.

Most Favored Nation. During the period from May 23, 2010 through 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 future investors 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 Anchor Investors by the Transaction Documents, unless, in any such case, each 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 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, 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. Without limiting the foregoing, the Company shall not offer any investors in the Other Private Placements, or any other capital raising transaction occurring at the same time as the transactions contemplated by the Transaction Documents on terms more favorable, in form or substance, than those offered in connection with the Investment, unless the Anchor Investors are also provided with such terms or has consented thereto in writing; provided, however, that for purposes of this Section 3.10, the Anchor Investors hereby consent to the Company’s entry into (i) the CapGen Investment Agreement, (ii) 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”), (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), (v) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vi) 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 Anchor Investors; provided furtherprovidedfurther, 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 (vi) of this 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, or modify agreements with any existing agreements or Transaction Documents, including the CapGen Investment Agreement or any other agreements with future investors (including any Purchaser but excluding any Anchor Investor) 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 Anchor Investors Purchasers by the Transaction Documentsthis Agreement, unless, in any such case, each Anchor Investor Purchaser 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, 2010the date hereof. Such Anchor Investor Purchaser 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, the Anchor Investors each Purchaser 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 investorsinvestors (including any additional agreement entered into with any Purchaser but excluding any agreements with any Anchor Investor). Without limiting the foregoing, the Company shall not offer any investors (other than the Anchor Investors) in the Other Private Placements, or any other capital raising transaction occurring at the same time as the transactions contemplated by the Transaction Documents on this Agreement, terms more favorable, in form or substance, than those offered in connection with the InvestmentPrivate Placement, unless the Anchor Investors Purchasers are also provided with such terms or has consented thereto in writing; providedterms. Notwithstanding the foregoing, howevereach Purchaser acknowledges and agrees that, that for purposes of this Section 3.10, to the extent the Anchor Investors hereby consent have been explicitly granted additional or more favorable rights in the Anchor Investment Agreement (as it exists at the time of execution of this Agreement and as it may exist from time to time through the Company’s entry into (i) closing of the CapGen Investment AgreementAnchor Investment), (ii) such Purchaser shall not be entitled to such rights. The Company has no other agreements with the letter agreement dated Anchor Investors as of the date hereof between the Company and an Affiliate related to their purchase of the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”)Common Shares, (iii) the other than that certain fee letter agreement dated as of the even 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), (v) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vi) 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 Anchor 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 (vi) of this paragraph 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 the Second Closing, neither extent (a) the Company nor the Company Subsidiaries shall enter enters into any additional agreementsamendment to, or modify any existing agreements or Transaction Documentsmodification of, including the CapGen Other Investment Agreement or any other agreements agreement or arrangement with future investors in the Company Other Investor or any of its Affiliates (each, an “MFN Party”) as of the Company Subsidiaries (date hereof, including any Additional Agreements entered into with side letter or similar arrangement after the Additional Investorsdate hereof (an “Amended Arrangement”)and (b) that have 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 Anchor Investors by Series A Preferred Stock or (iii) make any securities issued to any MFN Party, other than the Transaction DocumentsSeries C Preferred Stock, unlessParity Securities (as defined in the Series A Certificate of Designations), with the Series A Preferred Stock, the Company shall, in any such case, each Anchor Investor will promptly and in good faith disclose such Amended Arrangement to Purchaser. In connection therewith, Purchaser shall be given a copy of such additional or modified agreement and has been offered the opportunity to receive such the same 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 Anchor Investor 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 rights offered in such Amended Arrangement. However, if Purchaser accepts any such offer, in whole or modified agreementin 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, nothing herein shall override or otherwise limit any approval rights of 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. Without limiting the foregoing, the Company shall not offer any investors in the Other Private Placements, or any other capital raising transaction occurring at the same time as the transactions contemplated by the Transaction Documents on terms more favorable, in form or substance, than those offered in connection with the Investment, unless the Anchor Investors are also provided with such terms or has consented thereto in writing; provided, however, that for purposes of this Section 3.10, the Anchor Investors hereby consent Series A Preferred Stock pursuant to the Company’s entry into (i) the CapGen Investment Agreement, (ii) the letter agreement dated as Series A Certificate 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), (v) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vi) 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 Anchor 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 (vi) of this paragraph 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 In the period from May 23, 2010 through the Second Closing, neither event the Company nor sells or issues any convertible instruments including any Stock Acquisition Rights (other than the issuance of stock options to service providers of the Company) 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, the Company Subsidiaries shall enter into any additional agreements, provide the Investor with written notice of such sale or modify any existing agreements or Transaction Documentsissuance no later than five (5) days after the closing date thereof, including the CapGen Investment Agreement or price and terms of such convertible instruments (the “Subsequent Instruments”). In the event the Investor determines, in its sole and absolute discretion, that any other agreements with future investors 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 or shall 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 event within thirty (30) days after the end of each of the first three (3) quarters of each fiscal year of the Company Subsidiaries and within ninety (including any Additional Agreements entered into with the Additional Investors90) 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 Anchor Investors by the Transaction Documents, unless, in any such case, each 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 Anchor Investor shall notify the Company in writing, within 30 days after the date it receives end of each fiscal year of the Company. Such Financial Statements shall be in reasonable detail and prepared on a copy consistent basis. Additionally, regardless of such additional or modified agreement, of its election to receive whether the rights and benefits set forth therein. For the avoidance of doubtCompany prepares Financial Statements, the Anchor Investors will receive a copy Company shall deliver to the Major Investor such information relating to the financial condition, business or corporate affairs of each additional or modified agreement (including any Additional Agreements entered into with any Additional Investors) agreed the Company as such Major Investor may from time to with one or more other investorstime reasonably request. Without limiting Notwithstanding anything to the foregoingcontrary in this Section 5.2(a), the Company shall not offer any investors in the Other Private Placements, or any other capital raising transaction occurring at the same time as the transactions contemplated by the Transaction Documents on terms more favorable, in form or substance, than those offered in connection with the Investment, unless the Anchor Investors are also provided with such terms or has consented thereto in writing; provided, however, that for purposes of be obligated under this Section 3.10, the Anchor Investors 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 letter agreement dated as of the date hereof attorney-client privilege between the Company and an Affiliate its counsel; and the Investor agrees to maintain the confidentiality of all 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), (v) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vi) 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 Anchor Investors; provided further, however, that any proposed modification to any Investor Letter from the form of such Investor Letter information provided to the Anchor Investors Investor under this Section 5.2(a) and agrees not to use such information other than for a purpose reasonably related to the Investor’s investment in the Company. Participation Rights. Each time the Company proposes to offer any proposed modification 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 Letter executed shall have a right of first offer to participate in such offering(s), on the same terms and for the same price as all other investors in such offering(s), by purchasing an aggregate number of Equity Securities (whether in one offering or across multiple offerings) valued at up to the date hereof after the date hereof Participation Amount. The Major Investor’s right of first offer set forth in this Section 5.2(b) shall be subject to the Anchor Investors’ rights and the Company’s obligations set forth abovecompliance with applicable securities laws. For the purposes of this Agreement, all parties agree “Major Investor” Rights. The Company shall ensure that the terms and conditions of those documents referred to in clauses (i), (ii), (iii), (iv), (v) and (vi) of this paragraph Major Investor 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 While any of the period from May 23Securities remain outstanding, 2010 through the Second Closing, neither the Company nor the Company Subsidiaries shall not enter into any additional agreements, public or modify any existing agreements or Transaction Documents, including the CapGen Investment Agreement or any other agreements with future investors in the Company or any private offering of the Company Subsidiaries its securities (including securities convertible into shares of Common Stock) with any Additional Agreements entered into with the Additional Investorsindividual or entity (an “Other Investor”) 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 Anchor Investors Investor by this Agreement or the Transaction Documents, Series C Preferred Shares or Warrant unless, in any such case, each Anchor the Investor will be given a copy of such additional or modified agreement and 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 or modified agreement within 60 days obligations hereunder) for an equivalent amount of the later of the execution of such additional or modified agreement securities to be sold to, and May 23, 2010. Such 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 doubtobligations to be established with, the Anchor Investors will receive 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 copy more favorable Warrant exercise price of each additional or modified agreement the Other Investor and (ii) a senior liquidation preference to the Other Investor. In order to exercise such right, an Investor shall send the Company a written notice of its 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, the rights under this Section shall terminate with respect to such offering of 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 Agreements entered into with any Additional Investors) agreed to with one or more other investors. Without limiting the foregoing, the Company shall not offer any investors in the Other Private Placements, or any other capital raising transaction occurring at the same time as the transactions contemplated by the Transaction Documents on terms more favorable, in form or substance, than those offered in connection with the Investment, unless the Anchor Investors are also provided with such terms or has consented thereto in writing; provided, however, that for purposes of this Section 3.10, the Anchor Investors hereby consent warrants issued to the Company’s entry into (i) the CapGen Investment Agreement, underwriters); (ii) the letter agreement dated issuance and/or sale of securities by the Company in connection with a business acquisition, joint venture or partnership; (iii) the 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; (iv) the issuance of securities by the Company as compensation; and (v) the issuance of securities by the Company under agreements already in place and disclosed to Investors 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), (v) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vi) 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 Anchor 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 (vi) of this 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 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 future investors 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 Anchor Investors by the Transaction Documents, unless, in any such case, each 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 Shortly before the execution of such additional this Agreement, GigCapital4 may have entered into, or modified agreement and May 23concurrently with, 2010. Such 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 doubtshortly after, the Anchor Investors will receive a copy execution of each additional or modified agreement this Agreement, GigCapital4 may enter into, separate agreements with other investors (including any Additional Agreements entered into with any the “Additional Investors”) agreed for the purchase and sale of GigCapital4 common stock imposing restrictions on dispositions of GigCapital4 common stock by the Additional Investors similar to with one or more other investors. Without limiting the foregoingthose herein ((i) and (ii) collectively, the Company shall “Additional Investor Agreements”). GigCapital4 agrees not offer any investors to provide the Additional Investors material terms in the Other Private Placements, or any other capital raising transaction occurring at Additional Investor Agreements that are more favorable to such Additional Investors than the same time as the transactions contemplated by the Transaction Documents on terms more favorable, in form or substance, than those offered in connection with the Investment, unless the Anchor Investors are also provided with such terms or has consented thereto in writing; provided, however, that for purposes of this Section 3.10, the Anchor Investors hereby consent to the Company’s entry into Investors in this Agreement, except that (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 letter agreement dated as Additional Investor Agreements may provide that the ratable reduction in the number of Shares contemplated in Section 4(b) applies for purposes beyond Section 4(b), including by ratably reducing the date hereof between the Company and an Affiliate number of the Carlyle Anchor Investor (and the related agreements attached theretoShares subject to Section 1(a) (the “Carlyle Investor Letter”)or, (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), (v) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vi) 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 Anchor 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), clause (ii), (iii), (iv), (v) and (vithe section(s) of this paragraph shall be deemed Previously Disclosedsuch Additional Investor Agreements containing the provisions analogous to those set forth in Section 1(a) or Section 4(b) hereof, as applicable). In the event that term is used 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 each Investor shall have the 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 As of the period from May 23Effective Time, 2010 through the Second Closing, 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 agreementsOther 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, granting any rights to, or modify waiving any existing agreements provision of this Agreement in a manner that benefits, solely any Person other than the OEP Stockholders, the Swarth Stockholder or Transaction Documentstheir Affiliates and (2) this ‎Section 7.01 shall not apply to any commercial agreement entered into between the OEP Stockholders, including the CapGen Investment Agreement or Swarth Stockholder and any other agreements with future investors in of their respective Affiliates, on the one hand, and the Company or any of its Affiliates, on the Company Subsidiaries (including any Additional Agreements entered into with other hand, in the Additional Investors) 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 Anchor Investors by disinterested Directors then serving on the Transaction Documents, unless, in any such case, each Anchor Investor will be given a copy Board 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 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, 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. Without limiting the foregoing, the Company shall not offer any investors in the Other Private Placements, or any other capital raising transaction occurring at the same time as the transactions contemplated by the Transaction Documents on terms more favorable, in form or substance, than those offered in connection with the Investment, unless the Anchor Investors are also provided with such terms or has consented thereto in writing; provided, however, that for purposes of this Section 3.10, the Anchor Investors hereby consent to the Company’s entry into (i) the CapGen Investment Agreement, (ii) 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”), (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), (v) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vi) 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 Anchor 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 (vi) of this paragraph 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 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 future investors 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 The Buyer hereby represents and benefits established in favor of the Anchor Investors by the Transaction Documents, unless, in any such case, each 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 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, 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. Without limiting the foregoing, the Company shall not offer any investors in the Other Private Placements, or any other capital raising transaction occurring at the same time as the transactions contemplated by the Transaction Documents on terms more favorable, in form or substance, than those offered in connection with the Investment, unless the Anchor Investors are also provided with such terms or has consented thereto in writing; provided, however, that for purposes of this Section 3.10, the Anchor Investors hereby consent to the Company’s entry into (i) the CapGen Investment Agreement, (ii) the letter agreement dated warrants as of the date hereof between the Company and an Affiliate covenants and agrees that none of the Carlyle Anchor Investor 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 theretoor other similar instrument) (the “Carlyle Investor Letter”), (iii) the letter agreement dated outstanding as of the date hereof between the Company and (each an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor LetterOther Purchase Agreement”), (iv) is at a higher Purchase Price per Warrant or is otherwise more favorable to such person than those of the letter agreement dated as of Seller and this Agreement. If, on the date hereof between or within sixty days hereafter, the Company and CapGen (and the related agreements attached thereto), (v) the letter agreement dated as 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 date hereof between the Company Seller and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vi) 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 Anchor 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 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), (v) and (vi) 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 Section 4.15 shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations apply similarly and warrantiesequally to each Other Purchase Agreement.

Most Favored Nation. During the period from May 23, 2010 through the Second Closing, neither the 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 future investors in the Company or any hereby represents and warrants as of the Company Subsidiaries date hereof that none of the terms offered to any Person relating to the exchange of any Warrants and any subsequent amendment thereto (including any Additional Agreements entered into with the Additional Investors) that have the effect of establishing rights 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 those of the Holder and this Agreement (other than the rights and benefits established in favor reimbursement of the Anchor Investors by the Transaction Documents, unless, in any such case, each 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 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, 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. Without limiting the foregoing, the Company shall not offer any investors in the Other Private Placements, or any other capital raising transaction occurring at the same time as the transactions contemplated by the Transaction Documents on terms more favorable, in form or substance, than those offered in connection with the Investment, unless the Anchor Investors are also provided with such terms or has consented thereto in writinglegal fees); provided, however, that for purposes the purpose of this Section 3.105(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 Anchor Investors hereby consent to the Company’s entry Company enters into (i) the CapGen Investment Agreementan Exchange Document, (ii) the letter agreement dated as of the date hereof between then the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) shall provide written notice (the “Carlyle 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, (iii) the letter agreement dated as and be subject to, all of the date hereof between the Company rights and an Affiliate of the Anchorage Anchor Investor (and obligations under the related agreements attached thereto) (Exchange Document. In the “Anchorage Investor Letter”), (iv) event of any such election by the letter agreement dated as of the date hereof between the Company and CapGen (and the related agreements attached thereto), (v) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vi) 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 (collectivelyHolder, 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 Anchor Investors; provided furtherHolder (x) shall equal (i) the aggregate consideration payable in respect of the exchange of the Warrants pursuant to such Exchange Document, however, that any proposed modification to any Investor Letter from minus the form of such Investor Letter provided aggregate consideration paid to the Anchor Investors Holder under this Agreement (the consideration to the Holder, for the avoidance of doubt, is $958,800), and any proposed modification of such Investor Letter executed as of the date hereof after the date hereof (y) shall be subject to payable in cash by wire transfer of immediately available funds unless the Anchor Investors’ rights Company and the Company’s obligations set forth aboveHolder 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), (v) and (vi) the Company electing to receive the benefits of this paragraph Section 5(n) on or prior to the fifth (5th) Business Day after the delivery of an Exchange Document Notice by the Company, then the Holder’s rights with respect to the applicable Exchange Document shall terminate and be deemed Previously Disclosed, as 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 term is used herein, including provides for the purposes payment of modifying aggregate consideration (including cash, indebtedness and securities as valued pursuant to this Section 5(n)) by the Company’s representations and warrantiesCompany of less than $250,000.

Most Favored Nation. During (a) In the period from May 23, 2010 through the Second Closing, neither event that the Company nor issues and sells additional securities (the “Additional Securities”) for cash consideration on a private placement basis within twelve (12) months of the Closing Date (a “Subsequent Offering”), then, subject to any regulatory restrictions: (i) the Company Subsidiaries shall enter into notify the Subscriber of such Subsequent Offering; (ii) the Subscriber may elect, at its sole discretion, by written notice to the Company (the “Election Notice”) delivered within fifteen (15) business days of the receipt of notice by the Company under Section 5.4(a)(i) above, to exchange some or all of the Units purchased hereunder for that number of Additional Securities set forth in Section 5.4(a)(iii) below; (iii) the number of Additional Securities to be delivered under this Section 5.4 shall be such number of Additional Securities that the Subscriber would have received had they purchased such Additional Securities for the aggregate Offering Price of the Units being surrendered (subject to appropriate adjustment in the event of any additional agreementsstock split, stock dividend, recapitalization or the like by the Company), where the effective price of such Additional Securities being purchased is the greater of: (A) price at which such Additional Securities were offered and sold under the Subsequent Offering and (B) the applicable maximum permitted discount set out in Section 607(e) of the TSX Company Manual calculated as at the date of this Agreement; (iv) the Subscriber shall deliver to the Company all certificates evidencing the Common Shares and Warrants making up the Units being surrendered; and (v) upon receipt of the Election Notice and the surrendered certificates, the Company shall promptly issue to the Subscriber new certificates for such Additional Securities. (b) To the extent that shareholder approval is required to give effect to an exchange for Additional Securities under Section 5.4(a), the Company will use its best efforts to obtain such shareholder approval and will secure agreements to vote to approve such exchange from the holders of not less than twenty-five (25) percent of the Company’s then issued and outstanding shares. (c) For greater certainty, the rights and obligations of the Subscriber and the Company under Section 5.4(a) shall only apply in respect of the first Subsequent Offering undertaken by the Company in such twelve (12) month period and shall terminate following such offering whether or not the Subscriber elects to exchange any or all of its Units in accordance therewith. (d) For greater certainty, a Subsequent Offering shall not include the issuance and sale of: (i) any securities to employees, officers or directors of, or modify any existing agreements consultants or Transaction Documents, including the CapGen Investment Agreement or any other agreements with future investors in advisors to 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 subsidiary, pursuant to 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 Anchor Investors by the Transaction Documents, unless, in any such case, each 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 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, 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. Without limiting the foregoing, the Company shall not offer any investors in the Other Private Placements, or any other capital raising transaction occurring at the same time as the transactions contemplated by the Transaction Documents on terms more favorable, in form or substance, than those offered in connection with stock purchase or stock option plans or other arrangements that are approved by the Investment, unless the Anchor Investors are also provided with such terms or has consented thereto in writing; provided, however, that for purposes Board of this Section 3.10, the Anchor Investors hereby consent to the Company’s entry into (i) the CapGen Investment Agreement, Directors; (ii) the letter agreement dated any securities pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date hereof between the Company of this Agreement; 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), (v) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vi) 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 Anchor Investors; provided further, however, that any proposed modification securities pursuant 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 rights or agreements granted 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 so long as the terms and conditions of those documents referred rights established by this Section 5.4 were complied with or were inapplicable to in clauses (i), (ii), such rights or agreements; (iii)) any securities for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors; (iv)) any securities issued in connection with any equipment lease or strategic transaction, including any preferred service provider arrangement, approved by the Board of Directors; (v) and any securities issued in connection with any stock split, stock dividend or recapitalization by the Company; and (vi) of this paragraph shall be deemed Previously Disclosed, as any securities that term is used herein, including for are issued by the purposes of modifying Company pursuant to a registration statement filed under the Company’s representations and warrantiesSecurities Act or prospectus filed under the Canadian securities laws.

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 agreements with any existing agreements or Transaction Documents, including the CapGen Investment Agreement or any other agreements with 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 Anchor Investors Purchasers by the Transaction Documentsthis Agreement, unless, in any such case, each Anchor Investor Purchaser 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 Anchor Investor Purchaser 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, the Anchor Investors each Purchaser 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 investorsinvestors (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 the Other Private Placements, or any other capital raising transaction occurring at the same time as the transactions contemplated by the Transaction Documents on this Agreement, terms more favorable, in form or substance, than those offered in connection with the InvestmentPrivate Placement, unless the Anchor Investors Purchasers are also provided with such terms or has have consented thereto in writing; provided, however, that for purposes of this Section 3.103.12, the Anchor Investors Purchasers hereby consent to the Company’s entry into (i) the CapGen Investment Agreement, (ii) 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”), (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), (viii) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), ) and (viiv) 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 Anchor 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. 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), ) and (iv), of this paragraph, as well as the terms and provisions of (vA) 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 (viB) the letter agreement dated as of this paragraph 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 from May 23limitations set forth in this Section 4.1, 2010 through the Second Closing, neither the Company nor 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 Company Subsidiaries shall enter into any additional agreements, Holder) pursuant to which Old Notes are exchanged for other debt or modify any existing agreements or Transaction Documents, including the CapGen Investment Agreement or any other agreements with future investors in the Company or any equity securities of the Company Subsidiaries (including any Additional Agreements entered into with the Additional Investorseach an “Other Exchange”) 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 Anchor Investors by the Transaction Documents(excluding, unless, in any such case, each 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 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 for the avoidance of doubt, the Anchor Investors will receive a copy conversion of each additional the Old Notes pursuant to the terms of the indenture governing the same), at any time or modified agreement (including any Additional Agreements entered into with any Additional Investors) agreed from time to with one or more other investors. Without limiting the foregoingtime, the Company shall not offer any investors will, no later than two (2) Business Days after the Company’s disclosure on Form 8-K (or in the Other Private Placements, or any other capital raising transaction occurring at the same time as the transactions contemplated another report filed by the Transaction Documents 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 Confidentiality Agreement, provide the Holder with all non-public information disclosed by or on terms more favorable, in form or substance, than those offered behalf of the Company to any Other Holders in connection with the Investment, unless applicable Other Exchange (as well as any additional non-public information as the Anchor Investors are also provided Holder may reasonably request through the Election Deadline (as defined below) in connection with such terms or has consented thereto in writing; provided, however, that for purposes of this Section 3.10, the Anchor Investors hereby consent to the Company’s entry into (i) the CapGen Investment Agreement, (ii) 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 an Affiliate of the Carlyle Anchor Investor (Holder, and the related agreements attached thereto) (the “Carlyle Investor Letter”in any event as may be permitted by applicable securities laws), (iii) on 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), (v) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vi) 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 same terms and conditions thereof applicable to such Other Holders that participated therein (provided that the Holder will instead be required to surrender its MFN Notes (as defined below) in each case in connection with such Other Exchange, and the form previously delivered Holder may only participate therein up to the aggregate amount of MFN Notes that it holds), by delivering to the Company to the Anchor Investors; provided further, however, that any proposed modification to any Investor Letter from the form written notice of such Investor Letter provided to election by no later than 5:00 p.m. (California time) on the Anchor Investors and any proposed modification of such Investor Letter executed as third (3rd) Business Day after its receipt 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 applicable MFN Notice (i), (ii), (iii), (iv), (v) and (vi) of this paragraph 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 the period from May 23So long as this Warrant is outstanding, 2010 through the Second Closing, neither if the Company nor sells or issues any new security on terms that differ from this Warrant, the Company Subsidiaries shall enter into any additional agreements, will provide the Registered Holder with written notice of such sale or modify any existing agreements or Transaction Documentsissuance, including the CapGen Investment Agreement or any other agreements with future investors in the Company or any terms of the Company Subsidiaries new security, no later than five (including 5) days after the closing date thereof. If the Registered Holder reasonably believes any Additional Agreements entered into with term of the Additional Investors) that have the effect of establishing rights or otherwise benefiting such investor in a manner new security is more favorable in to the holder of such security or that the new security contains any material respect to such investor than the rights and benefits established term in favor of the Anchor Investors by holder of such security that the Transaction DocumentsRegistered Holder reasonably believes was not similarly provided to the Registered Holder in this Warrant, unless, in any such case, each Anchor Investor will be given a copy then (i) the Registered Holder shall notify the Company of such additional or modified agreement and has been offered the opportunity to receive such rights and benefits of such additional or modified agreement more favorable term within 60 days three (3) Business Days of the later issuance or amendment (as applicable) of the execution respective security or if later, within three (3) Business Days of such additional or modified agreement and May 23, 2010. Such Anchor Investor shall notify the Company in writingproviding holder written notice of the transaction accompanied by copies of the definitive transaction documents, within 30 days after and (ii) such term, at the date it receives Registered Holder’s option, shall become a copy part of such additional this Warrant (regardless of whether the Company or modified agreementthe Registered Holder complied with the notification provision of this Warrant). If the Registered Holder elects to have the term become a part of this Warrant, of its election to receive the rights and benefits set forth therein. For the avoidance of doubt, 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. Without limiting the foregoing, then the Company shall not offer any investors in the Other Private Placements, or any other capital raising transaction occurring at the same time as the transactions contemplated by the Transaction Documents on terms more favorable, immediately deliver acknowledgment of such adjustment in form or substance, than those offered in connection with the Investment, unless the Anchor Investors are also provided with such terms or has consented thereto in writing; provided, however, that for purposes of this Section 3.10, the Anchor Investors hereby consent and substance reasonably satisfactory to the Company’s entry into (i) the CapGen Investment Agreement, (ii) 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) Registered Holder (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), (v) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vi) 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 InvestorsAcknowledgment”) within three (the “Fir Tree Investor Letter”3) and the terms and conditions thereof in each case in the form previously delivered by the Company to the Anchor Investors; provided further, however, that any proposed modification to any Investor Letter Business Days of Company’s receipt of request from the form of such Investor Letter Registered Holder, 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 that Company’s obligations set forth above. For failure to timely provide the purposes of this Agreement, all parties agree that Acknowledgement shall not affect the terms and conditions of those documents referred to in clauses (i), (ii), (iii), (iv), (v) and (vi) of this paragraph shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warrantiesautomatic amendments contemplated hereby.

Most Favored Nation. During In the period from May 23, 2010 through event that at any time on or prior to the Second Closing, neither earlier to occur of the consummation of the eToys Merger or the public announcement by 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 future investors 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 termination of the Anchor Investors eToys Merger (the date thereof, as it may be definitionally extended for purposes of Section 9 and this Section 23 by the Transaction Documents, unless, in any such case, each 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 Anchor Investor shall notify the Company in writingits sole discretion, within 30 days after the date it receives a copy of such additional “MFN Period Expiration Date”) the Company issues, or modified agreemententers into any agreement to issue, any of its election to receive the rights and benefits set forth therein. For the avoidance of doubtequity securities, the Anchor Investors will receive a copy of each additional or modified agreement including any securities (including any Additional Agreements entered into with any Additional Investorsdebt securities) agreed that are convertible or exercisable into, or exchangeable for, such equity securities, to with one or more other investors. Without limiting Other Purchasers, and if, in connection with such issuance, the foregoingOther Purchasers to which such securities are issued (the “Favored Issuees”) (A) receive any economic terms (including, without limitation, price, the effective common stock conversion price, the percentage warrant coverage and the warrant exercise price) incident to such issuance which are superior to the economic terms applicable to the Purchaser’s purchase of securities pursuant to this Agreement, (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 addition to the corpus of such rights conferred on the Purchaser pursuant to this Agreement, or (C) are issued securities with any powers, rights, preferences or privileges senior to those of the Convertible Preferred Stock, then the Company shall not offer any investors in the Other Private Placements, or any other capital raising transaction occurring at the same time as the transactions contemplated by the Transaction Documents on terms more favorable, in form or substance, than those offered in connection with the Investment, unless the Anchor Investors are also provided with such terms or has consented thereto in writing; provided, however, that for purposes of this Section 3.10, the Anchor Investors hereby consent timely provide to the Company’s entry into (i) Purchaser the CapGen Investment Agreementright to participate in such issuance, (ii) on 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”), (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), (v) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vi) 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 identical terms and conditions thereof as the Favored Issuees (based upon the Purchaser’s U.S.$1,799,996.88 investment hereunder), in each case in exchange for the form previously delivered cancellation of all of the Purchaser’s rights under this Agreement, the Warrants and the Certificate of Designation, other than the right of the Purchaser to retain 50% of the Warrants purchased by the Company Purchaser pursuant to the Anchor 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 this Agreement (subject to the Anchor Investors’ rights and the Company’s obligations set forth above. For the purposes original terms of this Agreement, all parties agree that the terms and conditions of those documents referred to in clauses (isuch Warrants), (ii), (iii), (iv), (v) and (vi) of this 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 the Second Closing, neither the 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 future investors 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 hereby represents and benefits established in favor of the Anchor Investors by the Transaction Documents, unless, in any such case, each 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 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, 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. Without limiting the foregoing, the Company shall not offer any investors in the Other Private Placements, or any other capital raising transaction occurring at the same time as the transactions contemplated by the Transaction Documents on terms more favorable, in form or substance, than those offered in connection with the Investment, unless the Anchor Investors are also provided with such terms or has consented thereto in writing; provided, however, that for purposes of this Section 3.10, the Anchor Investors hereby consent to the Company’s entry into (i) the CapGen Investment Agreement, (ii) the letter agreement dated warrants as of the date hereof between and covenants and agrees from and after the Company date hereof that if the 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 an Affiliate of the Carlyle Anchor Investor transactions contemplated hereby or thereby (each a “Settlement Document”, and the related agreements attached thereto) (such securities, assets and/or rights, as applicable, issued in connection therewith, collectively, the “Carlyle Investor LetterOther Exchange Securities”), (iii) 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 and an Affiliate Holder in its reasonable discretion, the Holder may, at its option, exchange all, or any part, of the Anchorage Anchor Investor Exchange Warrant and such proportional amount of Exchange Shares issued in connection therewith hereunder (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations and the related agreements attached theretosimilar events) (the “Anchorage Investor Letter”)in each case, (ivsubject to reduction for any net exchange, if applicable) the letter agreement dated as of the date hereof between the Company and CapGen (and the related agreements attached thereto), (v) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vi) 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 InvestorsReturned Securities”), for such amount of Other Exchange Securities (subject to reduction for any net exchange, if applicable) (calculated using the “Fir Tree Investor Letter”) and the terms and conditions thereof exchange ratios in each case such applicable Settlement Document pursuant to documentation in the form previously delivered by the Company to the Anchor Investors; provided further, however, that any proposed modification to any Investor Letter from the form of such Investor Letter provided Settlement Document (excluding any term or condition more restrictive to the Anchor Investors Holder than as set forth herein or that would otherwise disproportionally and any proposed modification of such Investor Letter executed as of adversely affect the date hereof Holder), mutatis mutandis. If, and whenever on or after the date hereof hereof, the Company enters into a Settlement Document, then the Company shall be subject provide notice thereof to the Anchor Investors’ rights and Holder promptly following the Company’s obligations set forth aboveoccurrence 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), (v) and (vi) of this paragraph 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 ClosingRights Offering, 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 Anchor Investor Agreement, or any other agreements with existing or future investors 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 Anchor Investors CapGen by the Transaction Documents, unless, in any such case, each Anchor Investor 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 or modified agreement and May 23, 2010. Such Anchor Investor 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, the Anchor Investors CapGen 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. Without limiting the foregoing, the Company shall not offer any investors in the Other Private Placements, or any other capital raising transaction occurring at the same time as the transactions contemplated by the Transaction Documents 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 Investment, unless the Anchor Investors are CapGen is also provided with such terms or CapGen has consented thereto in writing; provided, however, that for purposes of this Section 3.10, the Anchor Investors 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 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”), (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) (the “CapGen Investor Letter”), (v) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vi) 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 Anchor InvestorsCapGen; provided further, however, that any proposed modification to any Investor Letter from the form of such Investor Letter last provided to the Anchor Investors CapGen 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’ 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 (vi) of this 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 Company hereby represents and warrants as of the period from May 23, 2010 through date hereof that none 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 terms offered to any other agreements with future investors investor (including in the Company any agreement entered into in connection therewith) in a private placement of Shares or any other equity securities of the Company Subsidiaries (including any Additional Agreements entered into prior to or substantially concurrent with the Additional Investors) that have 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 Anchor Investors by the Transaction Documents, unless, in any such case, each 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 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, 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. Without limiting the foregoing, the Company shall not offer any investors in the Other Private Placements, or any other capital raising transaction occurring at the same time as the transactions contemplated by the Transaction Documents on 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 Investment, unless the Anchor Investors are also provided with such deSPAC Closing that contains terms or has 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 3.107.16 or otherwise, that does not carve out this Agreement (along with any other agreements entered into in connection herewith) without the Anchor Investors 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) the letter agreement dated as exchange of equity securities of the date hereof between Company for exchangeable bonds issued by Vingroup Joint Stock Company, a public company listed on the Company and an Affiliate of Ho Chi Minh Stock Exchange, Vietnam, pursuant to a deed poll dated April 29, 2022 by the Carlyle Anchor Investor (and the related agreements attached thereto) (the “Carlyle Investor Letter”)Company, (iii) the letter agreement dated as of the date hereof between the Company and provision that is solely related to any regulation imposed on, or tax provisions applicable to, an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor Letter”)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 CapGen organization or headquarters, or organizational form of (and the related agreements attached thereto)or regulations applicable to) such investor, or (v) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vi) 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 Anchor 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 prior written consent of the Company’s obligations set forth above. For the purposes of this AgreementInvestor (which consent shall not be unreasonably withheld, all parties agree that the terms and conditions of those documents referred to in clauses (idelayed or conditioned), bona fide commercial, intellectual property, technological or strategic collaboration arrangements with investors (iior their respective Affiliates), (iii), (iv), (v) and (vi) of this 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 the Second Closing, neither the 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 future investors in the Company or any hereby represents and warrants as of the Company Subsidiaries date hereof that none of the terms offered to any Person relating to the exchange of any Warrants and any subsequent amendment thereto (including any Additional Agreements entered into with the Additional Investors) that have the effect of establishing rights 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 those of the Transferee Holder and the Holder and this Agreement (other than the rights and benefits established in favor reimbursement of the Anchor Investors by the Transaction Documents, unless, in any such case, each 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 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, 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. Without limiting the foregoing, the Company shall not offer any investors in the Other Private Placements, or any other capital raising transaction occurring at the same time as the transactions contemplated by the Transaction Documents on terms more favorable, in form or substance, than those offered in connection with the Investment, unless the Anchor Investors are also provided with such terms or has consented thereto in writinglegal fees); provided, however, that for purposes the purpose of this Section 3.105(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 Anchor Investors hereby consent to the Company’s entry Company enters into (i) the CapGen Investment Agreementan Exchange Document, (ii) the letter agreement dated as of the date hereof between then the Company and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) shall provide written notice (the “Carlyle 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, (iii) the letter agreement dated as and be subject to, all of the date hereof between the Company rights and an Affiliate of the Anchorage Anchor Investor (and obligations under the related agreements attached thereto) (Exchange Document. In the “Anchorage Investor Letter”), (iv) event of any such election by the letter agreement dated as of the date hereof between the Company and CapGen (and the related agreements attached thereto), (v) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vi) 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 (collectivelyHolder, 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 Anchor Investors; provided furtherHolder (x) shall equal (i) the aggregate consideration payable in respect of the exchange of the Warrants pursuant to such Exchange Document, however, that any proposed modification to any Investor Letter from minus the form of such Investor Letter provided aggregate consideration paid to the Anchor Investors Holder under this Agreement (the consideration to the Holder, for the avoidance of doubt, is $4,141,200), and any proposed modification of such Investor Letter executed as of the date hereof after the date hereof (y) shall be subject to payable in cash by wire transfer of immediately available funds unless the Anchor Investors’ rights Company and the Company’s obligations set forth aboveHolder 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), (v) and (vi) the Company electing to receive the benefits of this paragraph Section 5(n) on or prior to the fifth (5th) Business Day after the delivery of an Exchange Document Notice by the Company, then the Transferee Holder’s and the Holder’s rights with respect to the applicable Exchange Document shall terminate and be deemed Previously Disclosed, as 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 term is used herein, including provides for the purposes payment of modifying aggregate consideration (including cash, indebtedness and securities as valued pursuant to this Section 5(n)) by the Company’s representations and warrantiesCompany of less than $250,000.

Most Favored Nation. During the period from May 23, 2010 through the Second Closing, neither the 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 future investors 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 hereby represents and benefits established in favor of the Anchor Investors by the Transaction Documents, unless, in any such case, each 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 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, 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. Without limiting the foregoing, the Company shall not offer any investors in the Other Private Placements, or any other capital raising transaction occurring at the same time as the transactions contemplated by the Transaction Documents on terms more favorable, in form or substance, than those offered in connection with the Investment, unless the Anchor Investors are also provided with such terms or has consented thereto in writing; provided, however, that for purposes of this Section 3.10, the Anchor Investors hereby consent to the Company’s entry into (i) the CapGen Investment Agreement, (ii) the letter agreement dated warrants as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Investor (covenants and the related agreements attached thereto) (the “Carlyle Investor Letter”), (iii) the letter agreement dated as of the date hereof between the Company agrees from 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), (v) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vi) 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 Anchor 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 until July 12, 2023, that none of the terms offered to any other holder of warrants issued on or around the time of the 2020 Warrants (each “Other Warrants”) with respect to any amendment, modification or waiver of such Other Warrants (an “Other Warrant Agreement”), is or will be subject more favorable to such other holder than those of the Holder and this agreement, unless such terms are concurrently offered to the Anchor Investors’ rights Holder. If, and whenever on or after the Company’s obligations set forth above. For date hereof until July 12, 2023, the purposes Company enters into an Other Warrant Agreement relating to such Other Warrants, then (i) the Company shall provide notice thereof to the Holder promptly following the occurrence thereof (“Notice of this Agreement, all parties agree that Transaction”) and (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), (v) in which event the terms and (vi) 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 this paragraph shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations apply similarly and warrantiesequally to each such Other Warrant Agreement.”

Most Favored Nation. During Each Purchaser shall have the period right, exercisable at any time following the consummation of the transactions contemplated by 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 May 23time to time, 2010 through the Second Closing“Merger Agreement”), neither and at any time following the consummation of the transactions contemplated by that certain Exchange Agreement to be entered into in connection with the Merger Agreement on or about the date hereof by and between the Company nor and the holders of certain preferred stock of Evofem Biosciences, Inc. (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Evofem 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 Subsidiaries shall enter into any additional agreements, or modify any existing agreements or Transaction Documents, including upon the CapGen Investment Agreement or any other agreements with future investors in the Company or any consummation 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 Anchor Investors by the Transaction Documents, unless, in any such case, each 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 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, 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. Without limiting the foregoing, the Company shall not offer any investors in the Other Private Placements, or any other capital raising transaction occurring at the same time as the transactions contemplated by the Transaction Documents on terms more favorableMerger Agreement and/or the transactions contemplated by the Evofem Exchange Agreement, in form or substance, than those offered in connection with the Investment, unless the Anchor Investors are also provided with such terms or has consented thereto in writing; provided, however, that for purposes particular series of this Section 3.10, the Anchor Investors hereby consent to the Company’s entry into preferred stock whose terms are to be substituted for the Present Terms (ias defined below) in accordance with this Section 4.13 being at the CapGen Investment Agreement, (ii) the letter agreement dated as election of the date hereof between the Company and an Affiliate Purchaser (such series 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), (v) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vi) 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 (collectivelyCompany’s preferred stock, the “Fir Tree InvestorsElected 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 terms extent relevant, the underlying securities) with those of the applicable Elected Series (the “Elected Series Terms”) in accordance with this Section 4.13 and conditions thereof (y) incorporating by reference, mutatis mutandis, the Elected Series Terms in lieu of the Present Terms, subject in each case in to the form previously delivered by 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 Anchor Investors; provided furtherintent and purposes of this Section 4.13, however, that any proposed modification to any Investor Letter from including the form physical exchange 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 abovesecurities. For the purposes avoidance, neither the consent of this Agreement, all parties agree that the terms and conditions of those documents referred to in clauses (i), (ii), (iii), (iv), (v) and (vi) of this paragraph Company nor any other Purchaser shall be deemed Previously Disclosedrequired for a Purchaser to exercise its rights under this Section 4.13 and the election of a Purchaser to exercise its rights under this Section 4.13 shall apply solely to such Purchaser and shall not affect the rights of any other Purchaser under the Transaction Documents; provided, as that term is used notwithstanding anything to the contrary set forth herein, including for that if more than one Purchaser elects to exercise its rights under this Section 4.13, this Section 4.13 shall be 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 Except as relates to (a) Commercial Arrangements and (b) the period from May 23letter agreement, 2010 through 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 agreementsconsummation of the transactions contemplated by the Business Combination Agreement, SPAC issues or agrees to issue equity securities, or modify any existing agreements or Transaction Documentssecurities convertible into equity securities, including the CapGen Investment Agreement or any other agreements with future investors in the Company or any of the Company Subsidiaries (including any Additional Agreements entered into with the Additional Investors) 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 this Subscription Agreement, then SPAC will provide the Anchor Investors by the Transaction DocumentsInvestor with written notice thereof, unless, in any such case, each Anchor Investor 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 notice to the Investor promptly (and in any event within two business days) following (i) the entry into any definitive documentation related to the Favored Terms or modified agreement (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 has been offered restate this Subscription Agreement to contain the opportunity to receive Favored Terms in such manner as provides the Investor with substantially identical rights and benefits of such additional or modified agreement within 60 days of privileges to those contained in the later of Favored Terms. Notwithstanding the execution of such additional or modified agreement and May 23foregoing, 2010. Such Anchor the 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 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, a transaction involving the Anchor Investors will receive a copy issuance of each additional equity or modified agreement (including any Additional Agreements debt securities) entered into by SPAC or its subsidiaries with any Additional Investors) agreed to with one or more customers, strategic partners and/or other investors. Without limiting the foregoing, the Company shall not offer any investors in the Other Private Placements, or any other capital raising transaction occurring at the same time as the transactions contemplated by the Transaction Documents on terms more favorable, in form or substance, than those offered in connection with the Investment, unless the Anchor Investors are also provided with such terms or has consented thereto in writing; provided, however, that for purposes of this Section 3.10, the Anchor Investors hereby consent commercial counterparties relating to the Company’s entry into (i) the CapGen Investment Agreementdesign, (ii) the letter agreement dated as manufacture, production and delivery of the date hereof between the Company small modular nuclear reactors and an Affiliate of the Carlyle Anchor Investor (and the related agreements attached thereto) technology (the “Carlyle Investor LetterCommercial Arrangements”), (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), (v) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vi) 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 Anchor 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 (vi) of this 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 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 (ii) the Second Closing, neither day after the Company nor date on which the Company Subsidiaries shall enter into any additional agreementsCompany’s Common Stock is listed on a U.S. national securities exchange, or modify any existing agreements or Transaction Documents, including (iii) the CapGen Investment Agreement or any other agreements with future investors in date on which the Company or Purchaser no longer holds any of the Shares acquired by it hereunder, the Company Subsidiaries shall not consummate any unregistered private offering or an initial (including but not any Additional Agreements entered subsequent) public offering for cash consideration of its capital stock (or securities convertible into with shares of capital stock) (the Additional Investors“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 Anchor Investors by Purchaser pursuant to this Agreement and the other Transaction Documents, unless, in any such case, each 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 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, 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. Without limiting the foregoing, the Company shall not offer any investors in the Other Private Placements, or any other capital raising transaction occurring at the same time as the transactions contemplated by the Transaction Documents on terms more favorable, in form or substance, than those offered in connection with the Investment, unless the Anchor Investors are also provided with such terms or has consented thereto in writing; provided, however, that for purposes of this Section 3.10, the Anchor Investors 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 letter agreement dated as of the date hereof between the Company and an Affiliate of the Carlyle Anchor Other Investor (and unless the related agreements attached thereto) (Purchaser is subject to the “Carlyle Investor Letter”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 the Company and an Affiliate of the Anchorage Anchor Other Investor (and unless the related agreements attached thereto) (Purchaser has the “Anchorage Investor Letter”same 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 CapGen (and the related agreements attached thereto), (v) the letter agreement dated as of the date hereof between the Company and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vi) 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 Anchor Investors; provided further, however, that any proposed modification to any Investor Letter from the form grant or receipt 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 (vi) of this paragraph shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations and warrantiesunder a license.

Most Favored Nation. During the period from May 23, 2010 through 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 future investors 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 The Buyer hereby represents and benefits established in favor of the Anchor Investors by the Transaction Documents, unless, in any such case, each 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 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, 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. Without limiting the foregoing, the Company shall not offer any investors in the Other Private Placements, or any other capital raising transaction occurring at the same time as the transactions contemplated by the Transaction Documents on terms more favorable, in form or substance, than those offered in connection with the Investment, unless the Anchor Investors are also provided with such terms or has consented thereto in writing; provided, however, that for purposes of this Section 3.10, the Anchor Investors hereby consent to the Company’s entry into (i) the CapGen Investment Agreement, (ii) the letter agreement dated warrants as of the date hereof between the Company and an Affiliate covenants and agrees that none of the Carlyle Anchor Investor 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 theretoShares (or other similar instrument) (the “Carlyle Investor Letter”), (iii) the letter agreement dated outstanding as of the date hereof between the Company and (each an Affiliate of the Anchorage Anchor Investor (and the related agreements attached thereto) (the “Anchorage Investor LetterOther Purchase Agreement”), (iv) is at a higher Purchase Price per Warrant or is otherwise more favorable to such person than those of the letter agreement dated as of Seller and this Agreement. If , on the date hereof between or within three (3) months hereafter, the Company and CapGen (and the related agreements attached thereto), (v) the letter agreement dated as 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 date hereof between the Company Seller and Midtown Acquisitions L.P. (the “Davidson Investor Letter”), and (vi) 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 Anchor 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 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), (v) and (vi) 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 Section 4.15 shall be deemed Previously Disclosed, as that term is used herein, including for the purposes of modifying the Company’s representations apply similarly and warrantiesequally to each Other Purchase Agreement.