PAULSON SHALL BE ENTITLED TO ONLY ONE SEAT ON THE BOARD, SUBJECT TO
THE CONDITIONS SET FORTH IN THIS AGREEMENT, PRIOR TO THE TERMINATION DATE; OR
5
(VIII)
SEEK TO CALL, OR TO REQUEST THE CALL OF, A SPECIAL MEETING OF THE
STOCKHOLDERS OF THE COMPANY; OR
(IX)
DEPOSIT ANY SECURITIES OF THE COMPANY INTO A VOTING TRUST, OR
SUBJECT ANY SECURITIES OF THE COMPANY TO ANY AGREEMENT OR ARRANGEMENT WITH
RESPECT TO THE VOTING OF SUCH SECURITIES (OTHER THAN PURSUANT TO SECTION 2 OF
THIS AGREEMENT), OR OTHER AGREEMENT OR ARRANGEMENT HAVING SIMILAR EFFECT TO
WHICH, IN EACH CASE, A PERSON WHO IS NOT AN AFFILIATE OF PAULSON IS A PARTY; OR
(X)
EXECUTE ANY WRITTEN STOCKHOLDER CONSENT WITH RESPECT TO THE
COMPANY, EXCEPT IN ACCORDANCE WITH SECTION 2 OF THIS AGREEMENT; OR
(XI)
EXCEPT WITH RESPECT TO A PROPOSED CHANGE OF CONTROL TRANSACTION
EXPRESSLY SUBJECT TO THE VOTING REQUIREMENTS SET FORTH IN SECTION 2(B), SEEK OR
REQUEST PERMISSION TO DO ANY OF THE FOREGOING, MAKE, INITIATE, TAKE OR
PARTICIPATE IN ANY DEMAND, REQUEST, ACTION (LEGAL OR OTHERWISE) OR PROPOSAL TO
AMEND, WAIVE OR TERMINATE ANY PROVISION OF THIS AGREEMENT; OR
(XII)
DISCLOSE ANY INTENTION, PLAN OR ARRANGEMENT INCONSISTENT WITH THE
FOREGOING.
(B)
NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS SECTION 3, THE
PARTIES TO THIS AGREEMENT ACKNOWLEDGE AND AGREE THAT:
(I)
AT ANY TIME PRIOR TO SEPTEMBER 30, 2010 (THE "PURCHASE PERIOD"),
PAULSON MAY ACQUIRE BENEFICIAL OWNERSHIP OF ADDITIONAL SHARES OF NEW COMMON
STOCK; PROVIDED, THAT IN NO EVENT, BEFORE, DURING OR AFTER THE PURCHASE PERIOD,
MAY PAULSON ACQUIRE OR BENEFICIALLY OWN IN EXCESS OF 45% OF THE SHARES OF NEW
COMMON STOCK THEN ISSUED AND OUTSTANDING (INCLUSIVE OF THE SHARES OF NEW COMMON
STOCK ISSUED TO PAULSON BY THE COMPANY ON THE EFFECTIVE DATE IN EXCHANGE FOR ALL
OF THE CLASS 3 AND CLASS 4 CLAIMS OF PAULSON PURSUANT TO THE PLAN); PROVIDED
FURTHER, THAT PAULSON MAY ACQUIRE BENEFICIAL OWNERSHIP OF ADDITIONAL SHARES OF
NEW COMMON STOCK (INCLUDING AFTER THE PURCHASE PERIOD) PURSUANT TO PAULSON'S
EXERCISE OF ITS PREEMPTIVE RIGHTS SET FORTH IN SECTION 11, SUBJECT TO THE 45%
BENEFICIAL OWNERSHIP LIMITATION SET FORTH ABOVE IN THIS SECTION 3(B)(I);
(II)
THE PROVISIONS OF SECTION 3(A) SHALL NOT RESTRICT THE ACTIONS OF
PAULSON TAKEN IN RESPECT OF A CHANGE OF CONTROL TRANSACTION THE TERMS OF WHICH
REQUIRE AS A CONDITION TO CONSUMMATION OF SUCH CHANGE OF CONTROL TRANSACTION
COMPLIANCE WITH THE APPLICABLE VOTING RESTRICTIONS SET FORTH IN SECTIONS
2(B)(II), (III) AND (IV) (AND WHICH CONDITION IS NOT WAIVED); AND
(III)
THE PROVISIONS OF SECTION 3(A) WILL NOT LIMIT IN ANY RESPECT
PAULSON'S ABILITY TO PRIVATELY MAKE PROPOSALS TO THE BOARD WITH RESPECT TO ANY
OF THE ACTIONS, ACTIVITIES, OR MATTERS OTHERWISE RESTRICTED BY SECTION 3(A).
4.
NON-INTERFERENCE.
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(A)
THE COMPANY WILL NOT, BY AMENDMENT OF ITS AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION (THE "CHARTER"), ITS AMENDED AND RESTATED BYLAWS
(THE "BYLAWS"), OR ITS RIGHTS AGREEMENT (THE "RIGHTS AGREEMENT"), OR THROUGH ANY
OTHER MEANS, CIRCUMVENT OR SEEK