THE EVENT EQUITY SECURITIES ARE ISSUED AS PART OF A UNIT WITH
OTHER SECURITIES, THE RIGHT WILL APPLY TO SUCH UNIT AND NOT SEPARATELY TO ANY
COMPONENT OF SUCH UNIT.
(B)
THE RIGHT MAY BE EXERCISED BY PAULSON, OR,
AT PAULSON'S ELECTION, ONE OR MORE OF ITS AFFILIATES, AS THE CASE MAY BE,
PROVIDED THAT THE PERSON EXERCISING THE RIGHT MUST (I) BE AN ACCREDITED INVESTOR
AND (II) DELIVER WRITTEN NOTICE TO THE COMPANY OF SUCH EXERCISE OF THE RIGHT
WHICH IS RECEIVED BY THE COMPANY WITHIN TWENTY (20) BUSINESS DAYS AFTER THE DATE
ON WHICH PAULSON RECEIVES NOTICE FROM THE COMPANY OF THE PROPOSED ISSUANCE.
THE
CLOSING OF THE PURCHASE AND SALE PURSUANT TO THE EXERCISE OF THE RIGHT SHALL
OCCUR ON THE DATE SCHEDULED BY THE COMPANY FOR THE ISSUANCE, WHICH MAY NOT BE
EARLIER THAN TEN (10) BUSINESS DAYS AND NO LATER THAN SIXTY (60) 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
12
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 (5) 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.
(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