Amendment of Section 5.4. Section 5.4 of the Agreement is hereby amended and restated to read as follows:
Amendment of Section 5.4. Section 5.4 is hereby deleted in its entirety and amended and shall read as follows:
Amendment of Section 5.4. Section 5.4 of the Existing Servicing Agreement is hereby amended in its entirety to read to follows:
Amendment of Section 5.4. Section 5.4 of the Distribution Agreement is hereby amended and restated in its entirety as follows:
Amendment of Section 5.4. Section 5.4 of the Original Agreement is hereby amended to delete the last sentence of such section and replace such sentence with the following new sentence: Each of the Company, Parent and Sub will, and will cause its respective Subsidiaries to, take all reasonable actions necessary to obtain any consent, authorization, order or approval of, or any exemption by, any Governmental Entity (collectively, the “Requisite Regulatory Approvals”) or otherwise any public or private third party required to be obtained or made by Parent, Sub, the Company or any of their Subsidiaries in connection with the Merger, the Transaction or the taking of any action contemplated thereby or by this Agreement or the Ancillary Agreements.
Amendment of Section 5.4. Section 5.4 of the Employment Agreement shall be replaced in its entirety with the following text:
Amendment of Section 5.4. Section 5.4 of the Rights Agreement is hereby amended by deleting the last sentence thereof in its entirety and replacing it with the following: “Notwithstanding anything herein to the contrary, (a) the Company shall not supplement, modify, replace or amend this Agreement (including by way of adopting or entering into any other shareholder protection rights agreement or other similar agreement or instrument) in any manner which causes any of Investor 1, Investor 2 or Investor 3 to be deemed an Acquiring Person unless such Person, together with its Affiliates and Associates, becomes the Beneficial Owner of additional shares of Common Stock (other than shares contemplated by clauses (A), (B) or (C) of the definition of “Acquiring Person,” to which this clause shall not apply) after the effectiveness of such supplement, modification, replacement or amendment, as the case may be, and (b) in the event the Company enters into or adopts any other shareholder protection rights agreement or other similar agreement or instrument at any time, the Company agrees that such other agreement or instrument shall not operate in any manner which causes any of Investor 1, Investor 2 or Investor 3 to be deemed an Acquiring Person unless such Person, together with its Affiliates and Associates, becomes the Beneficial Owner of additional shares of Common Stock after the effectiveness of such shareholder protection rights agreement or other similar agreement or instrument.
Amendment of Section 5.4. Section 5.4 of the Purchase Agreement is hereby amended by adding after the last sentence of Section 5.4 the following: In the event SOFTBANK exercises its right to have the Compensation Committee Requirement satisfied pursuant to the immediately preceding sentence and SOFTBANK fails to give the Company notice of such exercise no later than seven days prior to any Closing Date, SOFTBANK shall waive the Company’s obligations pursuant to Section 6.2(k) with respect to such Closing Date.
Amendment of Section 5.4. Section 5.4 of the Investment Agreement is hereby amended to insert a subsection (g) to read as follows:
(g) Notwithstanding anything to the contrary set forth herein, in the event a Deerfield Purchaser fails to exercise its preemptive purchase right as provided in this Section 5.4 in connection with any Qualified Equity Offering in which the WP Purchasers participate to subscribe for the lesser of (x) such Deerfield Purchaser’s Purchaser Percentage Interest and (y) the portion of such Deerfield Purchaser’s Purchaser Percentage Interest that is equivalent to the portion of the WP Purchasers’ Purchaser Percentage Interest represented by the shares that the WP Purchasers subscribe for in such Qualified Equity Offering, Section 5.4 of this Agreement shall terminate with respect to each Deerfield Purchaser. For example, if the WP Purchasers’ Purchaser Percentage Interest is 50% and such Deerfield Purchaser’s Purchaser Percentage is 12%, if the WP Purchasers subscribe for 25% of the securities in such Qualified Equity Offering, such Deerfield Purchaser would be required to subscribe for 6% of the securities in such Qualified Equity Offering to maintain the Deerfield Purchasers’ preemptive purchase right as provided in this Section 5.4.”
Amendment of Section 5.4. Section 5.4 of the Rights Agreement is hereby amended by adding the following at the end of the last sentence thereof: “Notwithstanding anything herein to the contrary, (a) the Company shall not supplement, modify, replace or amend this Agreement (including by way of adopting or entering into any other shareholder protection rights agreement or other similar agreement or instrument) in any manner which causes either Investor 1 or Investor 2 to be deemed an Acquiring Person unless such Investor, together with its Affiliates and Associates, becomes the Beneficial Owner of additional shares of Common Stock after the effectiveness of such supplement, modification, replacement or amendment, as the case may be, and (b) in the event the Company enters into or adopts any other shareholder protection rights agreement or other similar agreement or instrument at any time, the Company agrees that such other agreement or instrument shall not operate in any manner which causes either Investor 1 or Investor 2 to be deemed an Acquiring Person unless such Investor, together with its Affiliates and Associates, becomes the Beneficial Owner of additional shares of Common Stock after the effectiveness of such shareholder protection rights agreement or other similar agreement or instrument. Clause (a) and (b) of the forgoing sentence shall be of no further force or effect (x) as to Investor 1, from and after such time as Investor 1, together with its Affiliates and Associates, is the Beneficial Owner of less than 15% of the then outstanding shares of Common Stock, and (y) as to Investor 2, from and after such time as Investor 2, together with its Affiliates and Associates, is the Beneficial Owner of less than 15% of the then outstanding shares of Common Stock. Notwithstanding anything to the contrary contained in this Agreement, the Company shall have no obligations under this Agreement to Investor 1 from and following the valid termination of the Investment Agreement in accordance with its terms or to Investor 2 from and following the valid termination of the Institutional Investor Investment Agreement in accordance with its terms.
