PLACE OF
BUSINESS LOCATED IN A NATION THAT IS THEN SUBJECT TO AN OFAC SANCTIONS PROGRAM.
IN THE EVENT OF ANY SUCH ASSIGNMENT, THE ASSIGNEE SHALL AGREE TO BE BOUND BY ALL
OF THE TERMS AND CONDITIONS IMPOSED ON THE INVESTOR UNDER SECTION 3 OF THIS
AGREEMENT, SECTION 27 OF THE SECURITIES PURCHASE AGREEMENT AND UNDER THE
WARRANT.
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3.5
EXCLUDED SECURITIES.
THE PRE-EMPTIVE RIGHTS
ESTABLISHED BY THIS SECTION 3 SHALL HAVE NO APPLICATION TO ANY OF THE FOLLOWING
EQUITY SECURITIES:
(A)
SHARES OF COMMON STOCK, OPTIONS, WARRANTS
OR OTHER COMMON STOCK PURCHASE RIGHTS ISSUED OR TO BE ISSUED PURSUANT TO THE
2007 LONG-TERM INCENTIVE COMPENSATION PLAN OF THE COMPANY, AS AMENDED FROM TIME
TO TIME.
(B)
STOCK ISSUED PURSUANT TO RIGHTS OR
AGREEMENTS AFTER THE DATE OF THIS AGREEMENT; PROVIDED THAT THE PRE-EMPTIVE
RIGHTS ESTABLISHED BY THIS SECTION 3 APPLIED WITH RESPECT TO THE INITIAL SALE OR
GRANT BY THE COMPANY OF SUCH RIGHTS OR AGREEMENTS;
(C)
ANY EQUITY SECURITIES ISSUED FOR
CONSIDERATION OTHER THAN CASH PURSUANT TO A MERGER, CONSOLIDATION, ACQUISITION
OR SIMILAR BUSINESS COMBINATION;
(D)
SHARES OF COMMON STOCK ISSUED IN CONNECTION
WITH ANY STOCK SPLIT, STOCK DIVIDEND OR RECAPITALIZATION BY THE COMPANY;
(E)
ANY EQUITY SECURITIES ISSUED UPON THE
EXERCISE OR CONVERSION OF ANY INSTRUMENT, SECURITY, NOTE, WARRANT, OPTION OR
OTHER RIGHT OUTSTANDING ON THE DATE OF THIS AGREEMENT;
(F)
ANY EQUITY SECURITIES ISSUED PURSUANT TO
OR IN CONNECTION WITH ANY EQUIPMENT-LEASING OR OTHER CAPITAL OR OPERATING LEASE
ARRANGEMENT, OR DEBT FINANCING FROM A BANK, SIMILAR FINANCIAL INSTITUTION OR
OTHER LENDER, IN WHICH THE ISSUANCE OF THE EQUITY SECURITIES WAS SECONDARY TO
SUCH TRANSACTION;
(G)
ANY EQUITY SECURITIES ISSUED IN CONNECTION
WITH STRATEGIC ALLIANCES INVOLVING THE COMPANY OR ANY OF ITS SUBSIDIARIES; AND
(H)
ANY EQUITY SECURITIES ISSUED IN A PUBLIC
OFFERING.
SECTION 4.
MISCELLANEOUS
4.1
GOVERNING LAW.
THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
EXCLUDING CHOICE-OF-LAW RULES THEREOF.
4.2
REMEDIES.
EACH PARTY AGREES THAT IN EVENT
THAT A SETTLEMENT OF ANY CONTROVERSY, CLAIM OR DISPUTE IS NOT REACHED BY MUTUAL
AGREEMENT, SUCH CONTROVERSY, CLAIM OR DISPUTE WILL BE SETTLED BY ARBITRATION
ADMINISTERED IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN
ARBITRATION ASSOCIATION.
THE PLACE OF ARBITRATION WILL BE IN LONDON, ENGLAND
AND THE ARBITRATOR'S REPORT WILL BE SUBMITTED WITHIN SIX (6) MONTHS OF THE
INITIATION OF THE ARBITRATION PROCESS.
THE APPLICABLE FEDERAL OR STATE COURT
SHALL HAVE JURISDICTION TO ENFORCE ANY AWARD OR REMEDY GRANTED IN THE
ARBITRATION.
EACH PARTY WILL BEAR ITS OWN COSTS INCURRED IN THE COURSE OF
ARBITRATION.
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4.3
SUCCESSORS AND ASSIGNS.
EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED HEREIN, THIS AGREEMENT SHALL BIND AND INURE TO THE BENEFIT OF
THE COMPANY AND THE INVESTOR AND THEIR RESPECTIVE PERMITTED SUCCESSORS AND
ASSIGNS; PROVIDED, HOWEVER, THAT, ANY PROPOSED TRANSFERS OF INVESTOR'S RIGHTS
UNDER THIS AGREEMENT SHALL BE SUBJECT TO THE OTHER PROVISIONS OF SECTIONS 2.7
AND 3.4 OF THIS AGREEMENT AND PRIOR TO THE RECEIPT BY THE COMPANY OF