THE EFFECTIVE TIME OF THE MERGER (AS THAT TERM IS
DEFINED IN THE MERGER AGREEMENT), PRIOR TO COMPANY NEGOTIATING A SHS TRANSACTION
AGREEMENT WITH A THIRD PARTY, THE COMPANY SHALL GIVE THE BUYERS A PERIOD OF
THIRTY (30) DAYS TO NOTIFY THE COMPANY WHETHER THE BUYERS DESIRE TO ENTER INTO A
SHS TRANSACTION AGREEMENT WITH THE COMPANY ON MUTUALLY AGREEABLE AND
COMMERCIALLY REASONABLE TERMS AND CONDITIONS FOR SUCH TRANSACTION.
IF THE
BUYERS TIMELY NOTIFY THE COMPANY IN WRITING OF SUCH DESIRE, THEN THE PARTIES
SHALL NEGOTIATE IN GOOD FAITH AND ATTEMPT TO REACH MUTUAL AGREEMENT UPON SUCH
TERMS AND CONDITIONS FOR SUCH SHS TRANSACTION AGREEMENT DURING THE PERIOD
COMMENCING AT THE EFFECTIVE TIME OF THE MERGER
AND EXTENDING UNTIL THE DATE
THAT IS SIXTY (60) CALENDAR DAYS FOLLOWING THE EFFECTIVE TIME OF THE MERGER (THE
"NEGOTIATION PERIOD").
2.2.
IF THE BUYERS DO NOT TIMELY NOTIFY THE COMPANY OF THEIR INTEREST IN
ENTERING INTO SUCH A SHS TRANSACTION AGREEMENT, OR IF UPON EXPIRATION OF THE
NEGOTIATION PERIOD THE PARTIES ARE UNABLE TO AGREE UPON SUCH TERMS AND
CONDITIONS, THEN THE COMPANY SHALL HAVE NO FURTHER OBLIGATION TO THE BUYERS
UNDER THIS AGREEMENT AND SHALL BE FREE TO ENTER INTO A SHS TRANSACTION AGREEMENT
WITH ANY THIRD PARTY ON ANY TERMS THAT THE COMPANY DETERMINES IN ITS SOLE
DISCRETION, AND THE COMPANY SHALL HAVE NO OBLIGATION TO OFFER ANY SUCH TERMS TO
THE BUYERS.
2.3.
THE COMPANY AGREES THAT SHOULD THE COMPANY AND THE BUYERS AGREE ON
THE TERMS OF THE ACQUISITION OF SHS, THE ADVANCE SHALL BE CREDITED AGAINST THE
APPLICABLE PURCHASE PRICE.
ANY PORTION OF THE ADVANCE NOT SO UTILIZED SHALL BE
REPAID ON JANUARY 31, 2007 BY THE COMPANY TO THE BUYERS WITH A 20% PREMIUM OR
RISK FACTOR THEREON (I.E. IF THE ENTIRE $1,000,000 IS REPAID, THE PREMIUM SHALL
BE $200,000).
3.
MISCELLANEOUS.
3.1.
TERMINATION.
THE PARTIES MAY TERMINATE THIS AGREEMENT AT ANY TIME
BY GIVING WRITTEN NOTICE TO THE OTHER PARTY; PROVIDED, HOWEVER, THAT THE COMPANY
MAY NOT TERMINATE THIS AGREEMENT WITHOUT THE PRIOR WRITTEN CONSENT OF THE
BUYERS.
THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE UPON THE TERMINATION OF
THE MERGER AGREEMENT PURSUANT TO ITS TERMS.
3.2.
ASSIGNMENT.
NEITHER THIS AGREEMENT NOR ANY INTEREST UNDER THIS
AGREEMENT SHALL BE ASSIGNABLE BY ANY PARTY WITHOUT THE PRIOR WRITTEN CONSENT OF
THE OTHER PARTY, EXCEPT THAT THE BUYERS MAY FREELY ASSIGN ITS INTEREST UNDER
THIS AGREEMENT TO ANY OF THEIR AFFILIATES.
THIS AGREEMENT SHALL BE BINDING UPON
THE SUCCESSORS AND PERMITTED ASSIGNS OF THE PARTIES AND THE NAME OF A PARTY TO
THIS AGREEMENT APPEARING HEREIN SHALL BE DEEMED TO INCLUDE THE NAMES OF SUCH
PARTY'S SUCCESSORS AND PERMITTED ASSIGNS TO THE EXTENT NECESSARY TO CARRY OUT
THE INTENT OF THIS AGREEMENT.
ANY ASSIGNMENT NOT IN ACCORDANCE WITH THIS
SECTION 3.2 SHALL BE VOID.
2
3.3.
FURTHER ACTIONS.
EACH PARTY TO THIS AGREEMENT AGREES TO EXECUTE,
ACKNOWLEDGE AND DELIVER SUCH FURTHER INSTRUMENTS, AND TO DO ALL SUCH OTHER ACTS,
AS MAY BE NECESSARY OR APPROPRIATE IN ORDER TO CARRY