BUSINESS DAYS AFTER THE COMPANY RECEIVES NOTICE OF THE EXERCISE OF
THE RIGHT.
(C)
NOTHING IN THIS SECTION 11 SHALL BE DEEMED TO PREVENT ANY PERSON
FROM PURCHASING FOR CASH OR THE COMPANY FROM ISSUING ANY ADDITIONAL EQUITY
SECURITIES WITHOUT FIRST COMPLYING WITH THE PROVISIONS OF THIS SECTION 11;
PROVIDED THAT, (I) THE BOARD HAS DETERMINED IN GOOD FAITH THAT (A) THE COMPANY
NEEDS A PROMPT CASH INVESTMENT, (B) NO ALTERNATIVE FINANCING ON TERMS NO LESS
FAVORABLE TO THE COMPANY IN THE AGGREGATE THAN SUCH PURCHASE IS AVAILABLE ON A
NO LESS TIMELY BASIS, AND (C) THE DELAY CAUSED BY COMPLIANCE WITH THE PROVISIONS
OF THIS SECTION 11 IN CONNECTION WITH SUCH INVESTMENT WOULD BE REASONABLY LIKELY
TO MATERIALLY ADVERSELY AFFECT THE COMPANY; (II) THE COMPANY GIVES PROMPT NOTICE
TO PAULSON OF SUCH INVESTMENT AS SOON AS PRACTICABLE, AND IN ANY EVENT AT LEAST
FIVE BUSINESS DAYS PRIOR TO THE CONSUMMATION OF SUCH INVESTMENT; AND (III) THE
PURCHASING HOLDER OR THE COMPANY ENABLES PAULSON TO EXERCISE ITS RIGHTS TO
PURCHASE ITS PRO RATA SHARE AS PROMPTLY AS PRACTICABLE FOLLOWING THE INITIAL
PROMPT CASH INVESTMENT.
FOR PURPOSES OF THIS SECTION 11(C), THE TERM "PRO RATA
SHARE" SHALL BE BASED ON PAULSON'S AND ITS AFFILIATES' BENEFICIAL OWNERSHIP OF
OUTSTANDING EQUITY SECURITIES RELATIVE TO THE TOTAL NUMBER OF OUTSTANDING EQUITY
SECURITIES, IN EACH CASE PRIOR TO THE ISSUANCE BY THE COMPANY OF EQUITY
SECURITIES IN THE TRANSACTION CONTEMPLATED BY THIS SECTION 11(C).
12.
MISCELLANEOUS.
(A)
SURVIVAL.
THE REPRESENTATIONS AND WARRANTIES, COVENANTS AND
AGREEMENTS CONTAINED IN THIS AGREEMENT SHALL SURVIVE THE EXECUTION OF THIS
AGREEMENT AND ANY INVESTIGATION AT ANY TIME BY OR ON BEHALF OF PAULSON OR THE
COMPANY.
THE PROVISIONS OF SECTION 11 AND, TO THE EXTENT NECESSARY FOR THE
INTERPRETATION OR ENFORCEMENT OF SECTION 11, SECTIONS 8, 9 AND 12, OF THIS
AGREEMENT SHALL SURVIVE THE EXPIRATION OF THIS AGREEMENT.
12
(B)
ENTIRE AGREEMENT.
THIS AGREEMENT CONTAINS THE ENTIRE AGREEMENT
BETWEEN THE PARTIES HERETO CONCERNING THE SUBJECT MATTER HEREOF AND SUPERSEDES
ALL PRIOR WRITTEN AND PRIOR OR CONTEMPORANEOUS ORAL AGREEMENTS BETWEEN THE
PARTIES WITH RESPECT TO SUCH MATTERS.
(C)
AMENDMENT.
THE AGREEMENTS SET FORTH IN THIS AGREEMENT MAY BE
MODIFIED OR WAIVED ONLY BY A SEPARATE WRITING BY THE COMPANY AND PAULSON
EXPRESSLY SO MODIFYING OR WAIVING SUCH AGREEMENTS.
(D)
NO WAIVER.
NO FAILURE OR DELAY BY THE COMPANY IN EXERCISING ANY
RIGHT, POWER OR PRIVILEGE HEREUNDER SHALL OPERATE AS A WAIVER THEREOF, NOR SHALL
ANY SINGLE OR PARTIAL EXERCISE THEREOF PRECLUDE ANY OTHER OR FURTHER EXERCISE
THEREOF OR THE EXERCISE OF ANY RIGHT, POWER OR PRIVILEGE HEREUNDER.
(E)
ASSIGNMENT.
ANY ASSIGNMENT OR ATTEMPTED ASSIGNMENT OF THIS
AGREEMENT BY PAULSON WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY SHALL BE
VOID.
(F)
SEVERABILITY.
IF ANY TERM, PROVISION, COVENANT OR RESTRICTION OF
THIS AGREEMENT IS HELD BY A COURT OF COMPETENT JURISDICTION TO BE INVALID, VOID
OR UNENFORCEABLE, THE REMAINDER OF THE TERMS, PROVISIONS, COVENANTS AND
RESTRICTIONS OF THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT AND SHALL
IN NO