MATERIAL RESPECT ITS
OBLIGATIONS SET FORTH IN SECTION 4.5 OR (II) BUYER SHALL HAVE CONSUMMATED ANY
ACCELERATION TRANSACTION, THEN, UPON THE DATE THAT IS ONE BUSINESS DAY FOLLOWING
THE CONSUMMATION OF SUCH ACCELERATION TRANSACTION, BUYER SHALL PAY TO SELLER THE
DEFERRED PURCHASE PRICE IN IMMEDIATELY AVAILABLE FUNDS TO THE BANK ACCOUNT THAT
WAS PREVIOUSLY DESIGNATED BY SELLER TO BUYER PURSUANT TO SECTION 1.1(A).
(D)
EACH OF THE PARTIES UNDERSTANDS AND AGREES
THAT UNLESS THE CLOSING IS CONSUMMATED, NOTHING CONTAINED IN THIS AGREEMENT
SHALL CONSTITUTE AN ADMISSION BY BUYER, SELLER OR ANY OF THEIR AFFILIATES AS TO
THE AMOUNT, IF ANY, OF ANY CLAIM BY BUYER AGAINST SELLER OR THE SELLER
BANKRUPTCY ESTATE NOR OF ANY CLAIM BY SELLER AGAINST THE COMPANY.
(E)
IN THE EVENT THAT BUYER CHANGES THE NUMBER
OF SHARES OF COMMON STOCK OR SECURITIES CONVERTIBLE OR EXCHANGEABLE INTO OR
EXERCISABLE FOR SHARES OF COMMON STOCK ISSUED AND OUTSTANDING PRIOR TO THE
CLOSING AS A RESULT OF A RECLASSIFICATION, STOCK SPLIT OR REVERSE STOCK SPLIT,
THE PURCHASE PRICE, THE CLOSING PURCHASE PRICE AND THE DEFERRED PURCHASE PRICE
SHALL REMAIN THE SAME, AND THE NUMBER OF SHARES OF COMMON STOCK OR SECURITIES
CONVERTIBLE OR EXCHANGEABLE INTO OR EXERCISABLE FOR SHARES OF COMMON STOCK AS A
RESULT OF ANY SUCH RECLASSIFICATION, STOCK SPLIT OR REVERSE STOCK SPLIT SHALL BE
THE SHARES COVERED BY THIS AGREEMENT.
(F)
NOTWITHSTANDING THE ENTRY INTO THIS
AGREEMENT OR ANY PROVISION CONTAINED HEREIN, IT IS ACKNOWLEDGED AND AGREED THAT,
UNLESS AND UNTIL THE CONSUMMATION OF THE CLOSING SHALL HAVE OCCURRED, SELLER
SHALL RETAIN ALL OF ITS RIGHTS, INCLUDING ANY VOTING RIGHTS, AS A SHAREHOLDER OF
BUYER WITH RESPECT TO THE SHARES.
1.2
CLOSING.
ON THE TERMS AND SUBJECT TO THE
CONDITIONS SET FORTH IN THIS AGREEMENT, THE CLOSING OF THE TRANSACTIONS
CONTEMPLATED BY SECTION 1.1(A) OF THIS AGREEMENT (THE "CLOSING") SHALL TAKE
PLACE:
(A) AT THE OFFICES OF HUGHES HUBBARD & REED LLP, ONE BATTERY PARK PLAZA,
2
NEW YORK, NEW YORK, AT 10:00 A.M., LOCAL TIME, ON THE THIRD BUSINESS DAY AFTER
THE SATISFACTION DATE (THE "SCHEDULED CLOSING DATE AND TIME" ) OR (B) AT SUCH
OTHER TIME, ON SUCH OTHER DATE AND AT SUCH OTHER PLACE AS MAY BE MUTUALLY AGREED
UPON BY THE PARTIES.
THE DATE ON WHICH THE CLOSING IS TO OCCUR IS HEREIN
REFERRED TO AS THE "CLOSING DATE."
NOTWITHSTANDING THE FOREGOING, THE PARTIES
ACKNOWLEDGE AND AGREE THAT SELLER SHALL HAVE THE RIGHT, AT ANY TIME AND FROM
TIME TO TIME FOLLOWING THE SATISFACTION DATE AND PRIOR TO ANY SCHEDULED CLOSING
DATE AND TIME, TO DETERMINE THAT THE SCHEDULED CLOSING DATE AND TIME SHALL BE
10:00 A.M., NEW YORK TIME, ON ANY DATE SUBSEQUENT TO THE PREVIOUSLY SET
SCHEDULED CLOSING DATE AND TIME (10:00 A.M., NEW YORK TIME, ON SUCH DATE
DETERMINED BY SELLER SHALL BE DEEMED TO BE THE SCHEDULED CLOSING DATE AND TIME)
BY PROVIDING TO BUYER A WRITTEN NOTICE TO SUCH EFFECT; PROVIDED THAT ANY SUCH
SCHEDULED CLOSING DATE AND TIME DETERMINED BY SELLER SHALL BE ON