DISCLOSE IN WRITING ALL CLAIMS OF THE DEBTORS
THAT THEY BENEFICIALLY OWN AND ANY CLAIMS OF THE DEBTORS WHICH ARE SUBJECT TO
TRADE CONFIRMATIONS AS OF SUCH DATE."
5.
ACQUISITIONS OF INTERESTS.
SECTION 5.12 OF THE ORIGINAL
AGREEMENT IS HEREBY AMENDED AND RESTATED IN FULL AS FOLLOWS:
"5.12
ACQUISITIONS OF INTERESTS.
FROM THE DATE OF THIS AGREEMENT TO AND
INCLUDING THE CLOSING DATE, NEITHER PAULSON NOR ANY STANDBY PURCHASER NOR ANY OF
THEIR RESPECTIVE AFFILIATES SHALL, DIRECTLY OR INDIRECTLY, PURCHASE, ACQUIRE, OR
ENTER INTO ANY AGREEMENT, ARRANGEMENT OR UNDERSTANDING WITH RESPECT TO THE
PURCHASE OR ACQUISITION BY PAULSON, ANY STANDBY PURCHASER OR ANY OF THEIR
RESPECTIVE AFFILIATES OF, ANY CLAIMS OF ANY DEBTOR OR ANY NEW COMMON STOCK,
EXCEPT PURSUANT TO THIS AGREEMENT, UNLESS (I) SUCH PURCHASE, ACQUISITION OR
ENTRY INTO ANY SUCH AGREEMENT, ARRANGEMENT OR UNDERSTANDING WOULD NOT CAUSE THE
STANDBY PURCHASERS TO EXCEED THE OWNERSHIP LIMITATION AND (II) SUCH TRANSACTION
HAS BEEN DISCLOSED TO THE COMPANY IN WRITING PRIOR TO THE DATE OF THE FIRST
AMENDMENT.
NOTHING IN THIS AGREEMENT SHALL RESTRICT OR PROHIBIT PAULSON OR ANY
STANDBY PURCHASER OR ANY OF THEIR RESPECTIVE AFFILIATES FROM (A) FINANCING,
PLEDGING IN CONNECTION WITH ANY FINANCING TRANSACTION, SELLING, OR CONTRACTING
TO SELL ANY CLAIMS OF THE DEBTORS OR (B) ENTERING INTO ANY SWAP OR OTHER
ARRANGEMENT THAT TRANSFERS TO ANOTHER PERSON, IN WHOLE OR IN PART, ANY OF THE
VOTING OR ECONOMIC CONSEQUENCES OF OWNERSHIP OF ANY CLAIMS OF THE DEBTORS."
6.
CONDITIONS TO POST EFFECTIVE CLOSING.
THE OBLIGATION OF THE
STANDBY PURCHASERS TO CONSUMMATE THE POST EFFECTIVE CLOSING SHALL BE SUBJECT TO
(I) THE POST EFFECTIVE STANDBY PURCHASE SHARES BEING, WHEN ISSUED, (A) DULY
AUTHORIZED, VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE, (B) NOT ISSUED IN
VIOLATION OF ANY PURCHASE OPTION, CALL OPTION, RIGHT OF FIRST REFUSAL,
PREEMPTIVE RIGHT, SUBSCRIPTION RIGHT OR ANY SIMILAR RIGHT UNDER ANY PROVISION OF
THE DELAWARE GENERAL CORPORATION LAW, THE AMENDED AND RESTATED CERTIFICATE OF
INCORPORATION OR THE AMENDED AND RESTATED BYLAWS OR ANY CONTRACT TO WHICH THE
COMPANY OR ANY OF ITS SUBSIDIARIES IS A PARTY OR BY WHICH ANY OF ITS OR THEIR
RESPECTIVE ASSETS ARE BOUND AND (C) DELIVERED BY THE COMPANY FREE AND CLEAR OF
ALL LIENS, EXCEPT FOR LIENS CREATED BY, OR OTHERWISE RESULTING FROM ACTIONS BY,
THE RECIPIENT OF SUCH
6
SHARES AND (II) THE POST EFFECTIVE STANDBY PURCHASE SHARES BEING LISTED AND
AUTHORIZED FOR TRADING ON THE NASDAQ GLOBAL MARKET.
7.
ENTIRE AGREEMENT.
THE ORIGINAL AGREEMENT AS AMENDED BY THIS
AMENDMENT, INCLUDING THE TERMS OF THE AGREEMENTS CONTEMPLATED THEREBY AND
HEREBY, CONTAIN THE ENTIRE AGREEMENT BY AND BETWEEN THE COMPANY AND THE STANDBY
PURCHASERS WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THE ORIGINAL
AGREEMENT, AS AMENDED BY THIS AMENDMENT, AND SUPERSEDE ALL PRIOR WRITTEN AND
PRIOR OR CONTEMPORANEOUS ORAL, AGREEMENTS AND REPRESENTATIONS WITH RESPECT
THERETO.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AMENDMENT, THE ORIGINAL
AGREEMENT IS NOT AMENDED OR MODIFIED NOR ANY PROVISION THEREOF WAIVED.
8.
GOVERNING LAW; JURISDICTION; VENUE; NO JURY TRIAL.
THIS
AMENDMENT AND