Rule 144."
shall be replaced with the following:
"..until the sooner of (i) December 31 2011, or (ii) until the Shares and
Warrant Shares have been resold or transferred by all Subscribers pursuant to
the Registration Statement or pursuant to Rule 144."
18.
NO RESET.
EXCEPT AS DESCRIBED HEREIN, BORROWER REPRESENTS THAT
THIS AMENDMENT SHALL NOT RESULT IN THE RESET OR RATCHET OF THE PRICE AT WHICH
ANY COMMON STOCK OF BORROWER WAS ISSUED OR IS ISSUABLE OF ANY OF BORROWER'S
OUTSTANDING COMMON STOCK OR COMMON STOCK WHICH MAY BE ISSUED IN THE FUTURE
INCLUDING THE AMOUNT OF COMMON STOCK WHICH MAY BE ISSUABLE BY BORROWER EXCEPT AS
DESCRIBED ON SCHEDULE 18 HERETO.
19.
FILING OF FORM 8-K.
WITHIN 2 TRADING DAYS OF THE DATE HEREOF, THE
BORROWER SHALL ISSUE A CURRENT REPORT ON FORM 8-K DISCLOSING THE MATERIAL TERMS
OF THE TRANSACTION CONTEMPLATED HEREBY, WHICH SHALL INCLUDE THIS AMENDMENT AS AN
ATTACHMENT THERETO.
20.
EXECUTION.
THIS AMENDMENT MAY BE EXECUTED IN SEPARATE
COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED SHALL BE DEEMED TO BE AN ORIGINAL
AND ALL OF WHICH TAKEN TOGETHER SHALL CONSTITUTE ONE AND THE SAME AGREEMENT.
THIS AMENDMENT MAY ALSO BE EXECUTED BY EITHER PARTY HERETO BY FACSIMILE
SIGNATURE, WHICH SHALL BE DEEMED TO BE AN ORIGINAL SIGNATURE OF SUCH PARTY
HEREON.
21.
SURVIVAL. ALL WARRANTIES AND REPRESENTATIONS (AS OF THE DATE SUCH
WARRANTIES AND REPRESENTATIONS WERE MADE) MADE HEREIN OR IN ANY CERTIFICATE OR
OTHER INSTRUMENT DELIVERED BY IT OR ON ITS BEHALF UNDER THIS AGREEMENT SHALL BE
CONSIDERED TO HAVE BEEN RELIED UPON BY THE PARTIES HERETO AND SHALL SURVIVE THE
ISSUANCE OF THE WARRANTS. THIS AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE
BINDING UPON THE SUCCESSORS AND PERMITTED ASSIGNS OF EACH OF THE PARTIES;
PROVIDED, HOWEVER, THAT NO PARTY MAY ASSIGN THIS AGREEMENT OR THE OBLIGATIONS
AND RIGHTS OF SUCH PARTY HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF THE
OTHER PARTIES HERETO.
22.
ENTIRE AGREEMENT.
THIS AMENDMENT CONSTITUTES THE ENTIRE AGREEMENT
AMONG THE PARTIES, AND SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS AGREEMENTS AND
UNDERSTANDINGS OF THE PARTIES IN CONNECTION HEREWITH.
NO CHANGES,
MODIFICATIONS, TERMINATIONS OR WAIVERS OF ANY OF THE PROVISIONS HEREOF SHALL BE
BINDING UNLESS IN WRITING AND SIGNED BY ALL OF THE PARTIES THERETO.
23.
GOVERNING LAW, VENUE AND JURISDICTION.
ALL QUESTIONS CONCERNING
THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AMENDMENT
SHALL BE DETERMINED PURSUANT TO THE GOVERNING LAW PROVISION OF THE NOTES.
24.
INCORPORATION.
ONCE EXECUTED, THIS AMENDMENT SHALL BE ATTACHED TO
THE NOTES AND SHALL BE DEEMED INCORPORATED THEREIN AND A PART THEREOF.
25.
DEFINED TERMS.
ALL CAPITALIZED TERMS USED HEREIN, UNLESS
OTHERWISE DEFINED HEREIN, SHALL HAVE THE MEANINGS ASCRIBED TO THEM IN THE NOTES.
26.
GENERAL TERMS.
THIS AMENDMENT HAS BEEN EXECUTED AND ENTERED INTO
BY BORROWER AND THE HOLDERS PURSUANT TO THE TERMS OF THE NOTES.
8
27.
CONSTRUCTION.
THE HEADINGS HEREIN ARE FOR CONVENIENCE ONLY, DO
NOT CONSTITUTE A PART OF THIS AGREEMENT AND SHALL NOT BE DEEMED TO LIMIT OR
AFFECT ANY