ex10-2.htm


    Exhibit
10.2

     

    


     

    FORM OF STOCKHOLDER TENDER
AGREEMENT

     

    STOCKHOLDER
TENDER AGREEMENT (this "Agreement"), dated as
of January 5, 2009, is by and among Endo Pharmaceuticals, a Delaware corporation
("Parent"),
[   ], a Delaware corporation and a direct, wholly-owned
Subsidiary of Parent ("Merger Sub") and
[                        ]
("Stockholder")

     

    WHEREAS,
Stockholder is, as of the date hereof, the record and beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), which meaning will apply for all purposes of this Agreement) of
the number of shares of Common Stock, par value $0.001 (the "Company Common
Stock") of Indevus Pharmaceuticals, Inc., a Delaware corporation (the
"Company"), set
forth opposite the name of Stockholder on Schedule I hereto;

     

    WHEREAS,
Parent, Merger Sub, and the Company have entered into an Agreement and Plan of
Merger, dated as of the date hereof, in the form attached hereto as Exhibit A
and as may be amended from time to time (the "Merger Agreement"),
which provides, among other things, for Merger Sub to commence a tender offer
for all of the issued and outstanding shares of Company Common Stock (the "Offer") and,
following the completion of the Offer, the merger of Merger Sub with and into
the Company (the "Merger")  upon
the terms and subject to the conditions set forth in the Merger Agreement
(capitalized terms used herein without definition shall have the respective
meanings specified in the Merger Agreement); and

     

    WHEREAS,
as a condition to the willingness of Parent and Merger Sub to enter into the
Merger Agreement and as an inducement and in consideration
therefor,  Stockholder has agreed to enter into this
Agreement.

     

    NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements set forth herein and in the Merger Agreement, and intending to be
legally bound hereby, the parties hereto agree as follows:

     

    SECTION
1.     Representations and
Warranties of Stockholder.  Stockholder hereby represents and
warrants to Parent and Merger Sub as follows:

     

    (a)         Stockholder (i) is the record and
beneficial owner of
the  shares of Company Common Stock (together with any shares of
Company Common Stock which such Stockholder may acquire at any time in the
future during the term of this Agreement, the "Shares") set forth opposite Stockholder's name
on Schedule I to this
Agreement and (ii) except as set forth in Schedule I to this Agreement, neither
holds nor has any beneficial ownership interest in any other shares of Company
Common Stock or any performance based stock units, restricted stock, deferred
stock units, option (including any granted
pursuant to a Company Option Plan), or warrant to acquire shares of Company
Common Stock or other right or security convertible into or exercisable or
exchangeable for shares of Company Common Stock.

     

    (b)         Stockholder has the legal capacity to execute and deliver
this Agreement and to consummate the transactions contemplated
hereby.

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (c)         This Agreement has been validly executed
and delivered by Stockholder and, assuming this Agreement constitutes a valid
and binding obligation of Parent and Merger
Sub,  constitutes the valid and binding obligation of Stockholder,
enforceable against such Stockholder in accordance with its terms, except (i) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting
enforcement of creditors' rights generally, and (ii) that the availability of
the remedy of specific performance or injunctive or other forms of equitable
relief may be subject to equitable defenses and would be subject to
the discretion of the court before which
any proceeding therefor may be brought.

     

    (d)         Neither the execution and delivery of
this Agreement nor the consummation by Stockholder of the transactions
contemplated hereby will result in a violation of, or a default under, or conflict with, any contract,
trust, commitment, agreement, understanding, arrangement or restriction of any
kind to which Stockholder is a party or by which Stockholder or Stockholder's
assets are bound.   The consummation by Stockholder of the
transactions contemplated hereby will not
(i) violate any provision of any judgment, order or decree applicable to
Stockholder or (ii) to the knowledge of the
Stockholder, require any consent, approval, or notice
under any statute, law, rule or regulation applicable to Stockholder other than
(x) as required under the Exchange Act and the rules and regulations
promulgated thereunder and (y) where the failure to obtain such consents or
approvals or to make such notifications, would not, individually or in the
aggregate, prevent or materially delay the
performance by Stockholder of any of its obligations under this
Agreement.

     

    (e)         The Shares and the certificates, if any,
representing the Shares owned by Stockholder are now, and at all times during
the term hereof will be,
held by Stockholder, by a nominee or custodian for the benefit of Stockholder or
by the depository under the Offer, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, options, rights (other than
community property interests), understandings or
arrangements or any other encumbrances or restrictions whatsoever on title,
transfer, or exercise of any rights of a shareholder in respect of such Shares
(collectively, "Encumbrances"), except for (i) any such
Encumbrances arising
hereunder (in connection therewith any restrictions on transfer or any other
Encumbrances have been waived by appropriate consent), (ii) any rights,
agreements, understandings or arrangements which represent a financial interest
in cash received upon sale of the Shares and (iii)
Encumbrances imposed by federal or state securities laws (collectively,
"Permitted
Encumbrances").

     

    SECTION
2.     Representations and
Warranties of Parent and Merger Sub.  Each of Parent and Merger
Sub hereby, jointly and severally, represents and warrants to Stockholder as
follows:

     

    (a)         Each of Parent and Merger Sub is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, and each of Parent and the Merger Sub has all
requisite corporate power
and authority to execute and deliver this Agreement and the Merger Agreement and
to consummate the transactions contemplated hereby and thereby, and has taken
all necessary corporate action to authorize the execution, delivery and
performance of this Agreement and the Merger
Agreement.

     

     

    
      
        
        

      

      
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    (b)         This Agreement and the Merger Agreement
have been duly authorized, executed and delivered by each of Parent and Merger
Sub, and constitute the valid and binding obligations of each of Parent and
Merger Sub, enforceable against each of them in accordance with
their terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally and (ii) the availability of the remedy of specific performance
or injunctive or other forms of equitable relief may be subject to equitable
defenses and would be subject to the discretion of the court before which any
proceeding therefor may be brought.

     

    (c)         Neither the execution and delivery of this Agreement or the Merger
Agreement by each of Parent and Merger Sub nor the consummation by Parent and
Merger Sub of the transactions contemplated hereby or thereby will result in a
violation of, or a default under, any contract, trust, commitment, agreement, understanding,
arrangement or restriction of any kind to which either Parent or Merger Sub is a
party or by which either Parent or Merger Sub or their respective assets are
bound.  The consummation by Parent and Merger Sub of the
transactions contemplated by this Agreement or
the Merger Agreement will not (i) violate any provision of any judgment,
order or decree applicable to Parent or Merger Sub or (ii) require any
consent, approval or notice under any statute, law, rule or
regulation applicable to either Parent or Merger
Sub, other than (x) filings under the Exchange Act and the rules and
regulations promulgated thereunder and (y) where the failure to obtain such
consents or approvals or to make such notifications, would not,
individually or in the aggregate, prevent or
materially delay the performance by either Parent or Merger Sub of any of their
obligations under this Agreement and the Merger Agreement.

     

    SECTION
3.     Tender of the
Shares.

     

    (a)         Stockholder hereby agrees that it shall
irrevocably tender (and
deliver any certificates evidencing) its Shares, or cause its Shares to be
irrevocably tendered, into the Offer promptly following, and in any event no
later than the fifth (5th) business day following the commencement
of the Offer pursuant to Section 1.1 of the Merger
Agreement in accordance
with the procedures set forth in the Offer Documents, free and clear of all
Encumbrances (other than Permitted Encumbrances); provided
that  Parent and Merger Sub agree that Stockholder may withdraw its
Shares from the Offer at
any time following the termination of this Agreement or as otherwise provided
pursuant to Section 9 hereof; and further provided that Stockholder shall not be
required, for purposes of this Agreement, to exercise any unexercised
Company Options held by
Stockholder.

     

    (b)         If the Offer is terminated or withdrawn
by Merger Sub, or the Merger Agreement is terminated prior to the purchase of
Shares in the Offer, Parent and Merger Sub shall promptly return, and shall
cause any depository or paying agent, including the Paying Agent, acting on
behalf of Parent and Merger Sub, to return all tendered Shares to the
Stockholder.

     

     

    
      
        
        

      

      
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    SECTION
4.     Transfer of the Shares;
Other Actions.

     

    (a)         Prior to the termination of this
Agreement, except as otherwise provided herein (including pursuant to Section 3 or Section 5) or
in the Merger Agreement, Stockholder shall not, and shall cause each of its
subsidiaries not to: (i) transfer, assign, sell, gift-over, hedge, pledge or
otherwise dispose (whether by sale, liquidation, dissolution, dividend or distribution) of, enter into
any derivative arrangement with respect to, create or suffer to exist any
Encumbrances (other than Permitted Encumbrances) on or consent to any of the
foregoing ("Transfer"), any or all of the Shares or any
right or interest therein;
(ii) enter into any contract, option or other agreement, arrangement or
understanding with respect to any Transfer; (iii) grant any proxy,
power-of-attorney or other authorization or consent with respect to any of the
Shares with respect to any matter that is, or that is
reasonably likely to be exercised in a manner, inconsistent with the
transactions contemplated by the Merger Agreement or the provisions thereof;
(iv) deposit any of the Shares into a voting trust, or enter into a voting
agreement or arrangement with respect to
any of the Shares; or (v) knowingly, directly or indirectly, take or cause the
taking of any other action that would restrict, limit or interfere with the
performance of such Stockholder's obligations hereunder or the transactions contemplated hereby,
excluding any bankruptcy filing.

     

    (b)         Notwithstanding the foregoing,
Stockholder may make (a) Transfers of Shares by will or by operation of law or
other transfers for estate planning purposes, in which case any such transferee shall agree in writing to be bound by
this Agreement prior to the consummation of any such
Transfer, (b) with respect to such
Stockholder’s Company Options which expire on or
prior to the Termination Date, to the extent permitted by the Company
Stock Plans, Transfers of Shares to the Company as
payment for the (I) exercise price of such Stockholder’s Company Options and (II) taxes
applicable to the exercise of such Stockholder’s Company Options, and (c) as Parent may
otherwise agree in writing in its sole discretion.

     

    (c)         Upon receipt of payment in full for all
of its Shares pursuant to the Merger Agreement, Stockholder agrees that any and
all rights incident to his or her ownership of Shares (including any rights to
recover amounts, if any,
that may be determined to be due to any stockholder or former stockholder of the
Company), including but not limited to rights arising out of a such
Stockholder's ownership of Shares prior to the transfer of such Shares to Merger
Sub or Parent pursuant to the Offer or pursuant to the Merger
Agreement, shall be transferred to Merger Sub and Parent upon the transfer to
Merger Sub or Parent of such Stockholder's Shares.

     

    SECTION
5.     Grant of Irrevocable Proxy;
Appointment of Proxy.

     

    (a)         Without in any way limiting
Stockholder's right to vote
the Shares in its sole discretion on any other matters that may be submitted to
a stockholder vote, consent or other approval, Stockholder hereby irrevocably
grants to, and appoints, 

     

    
      
        
        

      

      
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    Parent and any designee thereof,
Stockholder's proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of such Stockholder, to
attend any meeting of the stockholders of the Company on behalf of such
Stockholder, to include such Shares in any computation for purposes of establishing a quorum at any meeting
of stockholders of the Company, and to vote all Shares beneficially owned or
controlled by such Stockholder (the "Vote
Shares"), or to grant a
consent or approval in respect of the Vote Shares, in connection with
any meeting of the
stockholders of the Company or any action by written consent in lieu of a
meeting of stockholders of the Company (i) in favor of the Merger or any other
transaction pursuant to which Parent proposes to acquire the Company, whether by
tender offer or merger, in which stockholders
of the Company would receive aggregate consideration per share
of  Company Common Stock equal to or greater than the consideration to
be received by such stockholders in the Offer and the Merger and otherwise on
the same terms as the Offer and the Merger
and/or (ii) against any action or agreement which would in any material respect
impede, interfere with or prevent the Offer or the Merger, including, but not
limited to, any other extraordinary corporate transaction, including, a merger, acquisition, sale,
consolidation, reorganization or liquidation involving the Company and a third
party, or any other proposal of a third party to acquire the Company or all or
substantially all of the assets thereof.

     

    (b)         Stockholder hereby represents that any proxies heretofore
given in respect of the Shares, if any, are revocable, and hereby revokes such
proxies.

     

    (c)         Stockholder hereby affirms that the
irrevocable proxy set forth in this Section 5 is given in connection with the
execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance of
the duties of Stockholder under this Agreement.  Stockholder hereby
further affirms that the irrevocable proxy is coupled with an interest and,
except as set forth in this Section or in Section 9 hereof,
is intended to be irrevocable in accordance with the provisions of Section 212
of the DGCL.  If during the term of this Agreement for any reason the
proxy granted herein is not irrevocable, then such Stockholder agrees that it shall vote its Shares in
accordance with Section 5(a) above as instructed by Parent in
writing.  The parties agree that the foregoing shall be a voting
agreement created under Section 218 of the DGCL.

     

    SECTION
6.     Company Takeover Proposals;
Non-Solicitation.

     

    (a)         Company
Takeover Proposals

     

    (i)                 Stockholder will notify Parent and
Merger Sub immediately following Stockholder’s learning of such if any Company
Takeover Proposals are received by, or, in connection with any Company Takeover
Proposal, any information is requested from or any negotiations or
discussions are sought to be initiated or continued with, Stockholder or
Stockholder's employees, investment bankers, attorneys, accountants or other
agents, if any, which notice shall include the identity of the Person
making such information request or
Company Takeover Proposal and the material terms and conditions
of  such Company Takeover or information request.

     

     

    
      
        
        

      

      
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    (b)         No
Solicitation.

     

    (i)                 Stockholder shall not, nor shall it authorize or
permit any of his or
her
Representatives to,
directly or indirectly, (A) solicit, initiate or encourage, or take any
other action designed to, or which is reasonably expected to, facilitate, any
Company Takeover
Proposal, (B) enter into any agreement with respect
to any Company Takeover
Proposal or (C) enter into, continue or otherwise
participate in any discussions or negotiations regarding, or furnish to any
Person any information with respect to, or
otherwise cooperate with, any proposal that constitutes, or is reasonably
expected to lead to, any
Company Takeover
Proposal.  The
Stockholder shall, and shall cause its Representatives to, immediately
cease and cause to be terminated all existing discussions or negotiations with
any Person conducted heretofore with respect to
any proposal that constitutes, or is reasonably expected to
lead to, any Company
Takeover Proposal and
request the prompt return or destruction of all confidential information
previously furnished.  It is understood that this
Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in
Stockholder's capacity as a stockholder of the Company, and nothing herein shall
be construed as preventing Stockholder, as an officer or director of the
Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the
obligations of such office (including, subject to the limitations contained in
Section 6.5 of the Merger Agreement, the performance of obligations required by
the fiduciary obligations of Stockholder acting solely in his or her capacity as an officer or
director, trustee or fiduciary).

     

    SECTION
7.     Directors and
Officers.  This Agreement shall apply to Stockholder solely in
Stockholder’s capacity as a Company Stockholder and/or holder of Company
Options. performance based stock units, restricted stock or deferred stock
units, and not in such Stockholder’s capacity as a director, officer or employee
of the Company or in such Stockholder’s capacity as a trustee or fiduciary of
any employee benefit plan or trust. Notwithstanding any provision of this
Agreement to the contrary, nothing in this Agreement shall (or require
Stockholder to attempt to) limit or restrict a director and/or officer of the
Company in the exercise of his or her fiduciary duties consistent with the terms
of the Merger Agreement as a director and/or officer of the Company or in his or
her capacity as a trustee or fiduciary of any employee benefit plan or trust or
prevent or be construed to create any obligation on the part of any director
and/or officer of the Company or any trustee or fiduciary of any employee
benefit plan or trust from taking any action in his or her capacity as such
director, officer, trustee and/or fiduciary.

     

    SECTION
8.     Further
Assurances.  Each party shall execute and deliver any
additional documents and take such further actions as may be reasonably
necessary or desirable to carry out all of the provisions hereof, including all
of the parties' 

     

    
      
        
        

      

      
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    obligations
under this Agreement, including without limitation to vest in Parent the power
to vote the Shares to the extent contemplated by Section 6 hereof.

     

    SECTION
9.     Termination.

     

    (a)         This Agreement, and all rights and
obligations of the parties hereunder, shall terminate immediately upon the
earliest to occur of the following:

     

    (i)    termination of the
Merger Agreement for any reason;

     

    (ii)   the Effective
Time;

     

    (iii)  such date and time as (A) any amendment or change to the Merger
Agreement is effected without Stockholder’s consent that decreases the Offer
Price, or (B) any amendment
or change to the Merger
Agreement that is not
approved by the Board of Directors of the Company is effected without
Stockholder's consent that materially and adversely affects
Stockholder; or

     

    (iv)  the mutual written
consent of Parent and Stockholder

     

    (b)         Sections 10 and 13(e) hereof shall
survive the termination of
this Agreement.

     

    SECTION
10.   Expenses.  All
fees and expenses incurred in connection this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such fees or expenses,
whether or not the Offer or the Merger is consummated.

     

    SECTION
11.   Public
Announcements.  Stockholder (in his capacity as a stockholder
of the Company and/or signatory to this Agreement) shall not make any public
announcement regarding this Agreement and the transactions contemplated hereby,
without the prior written consent of Parent.

     

    SECTION
12.   Adjustments. In the
event of (a) any stock dividend, stock split, merger, recapitalization,
reclassification, combination, exchange of shares or the like of the capital
stock of the Company on, of or affecting the Shares or (b) that Stockholder
shall become the beneficial owner of any additional shares of Company Common
Stock, then the terms of this Agreement shall apply to the shares of Company
Common Stock held by Stockholder immediately following the effectiveness of the
events described in clause (a) or Stockholder becoming the beneficial owner
thereof as described in clause (b), as though, in either case, they were Shares
hereunder.  In the event that Stockholder shall become the beneficial
owner of any other securities entitling the holder thereof to vote or give
consent with respect to the matters set forth in Section 5 hereof, then the
terms of Section 5 hereof shall apply to such other securities as though they
were Shares hereunder.

     

     

    
      
        
        

      

      
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    SECTION
13.   Miscellaneous.

     

    (a)         Notices.  All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally, sent via electronic mail (receipt confirmed),
facsimile (receipt confirmed) or sent by a nationally recognized
overnight courier (providing proof of delivery)
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):

     

    If
to Stockholder, to:

     

    [    ]

    Attention:
[    ]

    Telephone:
[    ]

    Facsimile:  [    ]

    


    with
copies to:

    


    [    ]

    [    ]

    Fax
No: [    ]

    Attention:
[     ]

    


    


    If
to Parent or Merger Sub, to:

     

    Endo
Pharmaceuticals Holdings Inc.

    100
Endo Boulevard

    Cadds
Ford, PA  19317

    Fax
no: (610) 558-9864

    Attention:
Caroline B. Manogue, Esq.    

    


    with
a copy to:

    


    Skadden,
Arps, Slate, Meagher & Flom LLP

    Four
Times Square

    New
York, New York 10036

    Telephone:    (212)
735-3000

    Facsimile:      (212)
735-2000

    Attention:      Eileen
T. Nugent, Esq.

    


    (b)         Headings.  The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.

     

    (c)         Counterparts.  This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties.

     

     

    
      
        
        

      

      
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    (d)         Entire
Agreement, No Third-Party Beneficiaries.  This Agreement constitutes the
entire agreement, and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter of this
Agreement and (b)
is not intended to confer,
nor shall it confer, upon any Person other than the parties hereto any rights or
remedies or benefits of any nature whatsoever.

     

    (e)         Governing
Law, Jurisdiction.  This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware,
regardless of the laws that might otherwise govern under applicable principles
of conflict of laws thereof.

     

    (f)      
   Waiver of
Jury Trial.  EACH OF PARENT, MERGER SUB AND
STOCKHOLDER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THE ACTIONS OF PARENT, MERGER SUB OR STOCKHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT OF THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES
THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK
TO ENFORCE EITHER OF SUCH WAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (D) IT
HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION
13(f).

     

    (g)         Assignment.  Prior to the earlier to
occur of (i) the termination of the Merger Agreement or (ii) the consummation of
the Merger, neither this
Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise by any of the parties hereto without the prior
written consent of the other parties, except that Parent and Merger Sub
may assign, in their sole discretion and without the consent of any other party, any or
all of their rights, interests and obligations hereunder to each other or to one
or more direct or indirect wholly owned subsidiaries of Parent, and any such
assignee may thereafter assign, in its sole discretion and without the consent of any other party,
any or all of its rights, interests and obligations hereunder to one or more
additional direct or indirect wholly owned subsidiaries of Parent; provided, that no such assignment shall relieve
Parent or Merger Sub of any
of their respective obligations under this Agreement.  Any assignment in violation
of the preceding sentence shall be void. Subject to the preceding two sentences,
this Agreement will be binding upon, inure to the benefit of, and be enforceable
by, the parties and their
respective successors and assigns.

     

    (h)         Severability
of Provisions.  If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or 

     

     

    
      
        
        

      

      
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    public policy, all other conditions and
provisions of this
Agreement shall nevertheless remain in full force and effect, insofar as the
foregoing can be accomplished without materially affecting the economic benefits
anticipated by the parties to this Agreement.  Upon such determination
that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible to the fullest extent permitted by applicable Law in an acceptable manner to the
end that the transactions contemplated hereby are fulfilled to the extent
possible.

     

    (i) 
        Specific
Performance. The parties agree that irreparable
damage would occur and that the parties would not have any adequate remedy
at law in the event that
any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached.  It is accordingly
agreed that the parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any federal court
located in the State of Delaware or in Delaware state court, this being in
addition to any other remedy to which they are entitled at law or in equity.

     

    (j)  
       Amendment.  No amendment or
modification of this Agreement shall be effective unless it shall be in writing
and signed by each of the parties hereto, and no waiver or consent hereunder
shall be effective against any party unless it shall be in writing and signed by such
party.

     

    (k)         Binding
Nature.  This
Agreement is binding upon and is solely for the benefit of the parties hereto
and their respective successors, legal representatives and
assigns.

     

    (l)   
      FIRPTA
Certificates.  Prior to the purchase of
Shares pursuant to Section
3 hereof, Stockholder shall provide to Parent, Merger Sub or the Exchange Agent,
as the case may be, a certificate of non-foreign status as provided in Treasury
Regulation Section 1.1445-2(b) (the "FIRPTA Certificate").  If a
Stockholder fails to deliver the FIRPTA
Certificate, Parent, Merger Sub or the Exchange Agent, as the case may be, shall
be entitled to withhold the amount required to be withheld pursuant to Section
1445 of the Code from amounts otherwise payable to Stockholder pursuant to the Merger Agreement or this
Agreement.

     

    (m)         No
Recourse.  Parent and Merger Sub agree that
Stockholder (in his capacity as a stockholder of the Company) will not be liable
for claims, losses, damages, liabilities or other obligations resulting from
the Company's breach of the Merger
Agreement.

     

    (n)         No Ownership
Interest.  Except as otherwise provided herein,
nothing contained in this
Agreement shall be deemed to vest in Parent any direct or indirect ownership or
incidence of ownership of or with respect to the Shares. All rights, ownership and
economic benefits of and relating to the Shares shall remain vested in and
belong to the Stockholder, and Parent shall have no authority to manage, direct,
restrict, regulate, govern, or administer any of the policies or operations of the Company or exercise
any power or authority to direct the Stockholder in the voting of any of the
Shares, except as otherwise provided herein.

     

     

     


    
      
         


      

      
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    IN
WITNESS WHEREOF, Parent, Merger Sub and the Stockholders have caused this
Agreement to be duly executed and delivered as of the date first written
above.

     

    


      
        
          
            
              	 
      	
                      PARENT

                    
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                      By:

                    	 
      	 
      
	 
      	 
      	
                      Name:
      

                    
	 
      	 
      	
                      Title:  

                    
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                      MERGER
      SUB

                    
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                      By:

                    	 
      	 
      
	 
      	 
      	
                      Name:
      

                    
	 
      	 
      	
                      Title:  

                    
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                      [STOCKHOLDER]]

                    
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                      By:

                    	 
      	 
      
	 
      	 
      	
                      Name:
      

                    	 
      


            

          

        

      


      
        
           


        

        
          11

          
            

          

        

        
           


        

      



     

    
      	
              Name
      and Address

            	
              Company

               Common
      Stock

            	
              Vested
      

              Options

            	
              Unvested
      

              Options

            	
              Restricted

               Stock

            	
              Performance
      Based

               Stock
      Units

            	
              Deferred
      

              Stock
      Units

            
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
              TOTAL

            	 
      	 
      	 
      	 
      	 
      	 
      


    

    


     

     

     

     

    
 

    I-1