WITH THE
TERMS OF SECTION 7(A) OF THE CERTIFICATE OF DESIGNATION FOR THE SERIES B
PREFERRED STOCK AND SECTION 7(A) OF THE CERTIFICATE OF DESIGNATION FOR THE
SERIES C PREFERRED STOCK, RESPECTIVELY.
THE PARTIES ACKNOWLEDGE AND AGREE THAT
IN THE EVENT THAT ANY HOLDER OF SERIES B PREFERRED STOCK OR SERIES C PREFERRED
STOCK (OTHER THAN THE HOLDERS) HAS HIS OR ITS SHARES REDEEMED ON TERMS MORE
FAVORABLE THAN THOSE CONTAINED IN THE CERTIFICATE OF DESIGNATION WITH RESPECT TO
SUCH SERIES, EACH HOLDER SHALL BE ENTITLED TO HAVE ITS OR HIS SHARES OF SERIES B
PREFERRED STOCK AND/OR SERIES C PREFERRED STOCK, AS APPLICABLE, REDEEMED ON THE
MOST FAVORABLE TERMS AFFORDED TO ANY OTHER SUCH HOLDER.
4.4.
OFFICER'S CERTIFICATE.
AN OFFICER OF THE
COMPANY SHALL DELIVER TO THE HOLDERS A CERTIFICATE CERTIFYING THAT THE
CONDITIONS SPECIFIED IN SECTIONS 4.1, 4.2 AND 4.3 HEREOF HAVE BEEN SATISFIED.
4.5.
ADDITIONAL CONDITIONS PRECEDENT.
EACH HOLDER
SHALL HAVE RECEIVED EACH OF THE FOLLOWING, AS APPLICABLE:
(A)
THE CONVERTIBLE NOTE EXECUTED AND DELIVERED
BY THE COMPANY IN FAVOR OF SUCH HOLDER;
(B)
CERTIFICATES FOR THEIR RESPECTIVE SHARES OF
SERIES D PREFERRED STOCK EXECUTED AND DELIVERED BY THE COMPANY;
(C)
THEIR RESPECTIVE WARRANTS EXECUTED AND
DELIVERED BY THE COMPANY; AND
(D)
SUCH OTHER AND FURTHER DOCUMENTS, AGREEMENTS
AND INSTRUMENTS AS THE HOLDERS OR THEIR COUNSEL MAY REASONABLY REQUIRE TO
EVIDENCE, CONFIRM OR GIVE EFFECT TO THE UNDERTAKINGS OF THE COMPANY SET FORTH
HEREIN.
5.
Miscellaneous.
5.1.
GOVERNING LAW.
THIS AGREEMENT AND EACH OTHER EXCHANGE AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
ANY ACTION BROUGHT
BY ANY PARTY AGAINST ANOTHER CONCERNING THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT AND EACH OTHER EXCHANGE AGREEMENT SHALL BE BROUGHT ONLY IN THE STATE
COURTS OF NEW YORK OR IN THE FEDERAL COURTS LOCATED IN THE STATE OF NEW YORK, IN
EACH CASE SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN.
ALL PARTIES
AND THE INDIVIDUALS EXECUTING THIS AGREEMENT AND THE OTHER EXCHANGE AGREEMENTS
ON BEHALF OF THE COMPANY AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS AND
WAIVE TRIAL BY JURY.
IN THE EVENT THAT ANY PROVISION OF THIS AGREEMENT OR ANY
OTHER EXCHANGE AGREEMENT DELIVERED IN CONNECTION HEREWITH IS INVALID OR
UNENFORCEABLE UNDER ANY APPLICABLE STATUTE OR RULE OF LAW, THEN SUCH PROVISION
SHALL BE DEEMED INOPERATIVE TO THE EXTENT THAT IT MAY CONFLICT THEREWITH AND
SHALL BE DEEMED MODIFIED TO CONFORM WITH SUCH STATUTE OR RULE OF LAW.
ANY SUCH
PROVISION WHICH MAY PROVE INVALID OR
UNENFORCEABLE UNDER ANY LAW SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF
ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER EXCHANGE AGREEMENT.
5.2.
TERMINATION.
THIS AGREEMENT SHALL TERMINATE AND
BE OF NO FURTHER FORCE OR EFFECT IF THE CLOSING (AS DEFINED IN THE ASSET
PURCHASE AGREEMENT) SHALL NOT HAVE BEEN CONSUMMATED BY JANUARY 31, 2010;
PROVIDED, HOWEVER, THAT IN SUCH EVENT, THE COMPANY AGREES TO ISSUE TO THE SHAAR