PURPOSE (SUCH QUOTED TERMS BEING DEFINED IN REGULATION 14A
UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT")).
FOR PURPOSES OF THIS AGREEMENT, "AFFILIATE" MEANS ANY PERSON THAT DIRECTLY OR
INDIRECTLY THROUGH ONE OR MORE INTERMEDIARIES, CONTROLS, IS CONTROLLED BY, OR IS
UNDER COMMON CONTROL WITH, THE CAXTON ENTITIES.
SECTION 1.2.
CONFIDENTIALITY AGREEMENT;
CONSULTATION.
(A)
SIMULTANEOUS WITH THE EXECUTION OF THIS
AGREEMENT, CAXTON AND THE COMPANY SHALL ENTER INTO A CONFIDENTIALITY AGREEMENT
(THE "CONFIDENTIALITY AGREEMENT") IN THE FORM ATTACHED AS ANNEX A HERETO.
(B)
DURING THE TERM OF THE CONFIDENTIALITY
AGREEMENT, THE COMPANY SHALL, SUBJECT TO ANY EXISTING CONTRACTUAL LIMITATIONS,
PROVIDE CAXTON WITH SUCH NON-PUBLIC INFORMATION RELATING TO THE SEARCH PROCESS
AND THE STRATEGIC ALTERNATIVES PROCESS AS THE COMPANY MAY REASONABLY DETERMINE
TO BE APPROPRIATE, AND CAXTON AGREES TO CONSULT WITH AND PROVIDE TO THE COMPANY
SUCH ASSISTANCE AS CAXTON BELIEVES WOULD BE HELPFUL TO THE COMPANY IN THE
COMPANY'S PURSUIT OF THE SEARCH PROCESS AND THE STRATEGIC ALTERNATIVES PROCESS.
CAXTON UNDERSTANDS AND ACKNOWLEDGES THAT THE COMPANY IS NOT HEREBY MAKING ANY
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE ACCURACY OR
COMPLETENESS OF THE NON-PUBLIC INFORMATION, AND NEITHER THE COMPANY NOR ANY OF
ITS REPRESENTATIVES WILL HAVE ANY LIABILITY TO THE UNDERSIGNED OR ANY OTHER
PERSON RESULTING FROM USE OF THE NON-PUBLIC INFORMATION.
FOR THE AVOIDANCE OF
DOUBT, THE SEARCH PROCESS AND THE STRATEGIC ALTERNATIVES PROCESS SHALL BE AND
REMAIN WITHIN THE SOLE DISCRETION OF THE COMPANY, AND THE COMPANY SHALL REMAIN
SOLELY RESPONSIBLE FOR THE CONDUCT THEREOF.
SECTION 1.3.
ADDITIONAL CAXTON DESIGNEES; COMPANY
SLATE.
(a)
As promptly as practicable, and in any
event within ten (10) business days following the date of this Agreement, the
Company shall take all action necessary (including the calling of a special
meeting of the Board to amend the Company's Bylaws and approve such actions) to
increase the authorized number of directors of the Company from seven (7) to
eight (8) members and to cause the Board to nominate and elect the Additional
Caxton Designees to fill the newly created directorship and the existing vacancy
on the Board to serve until the next election of directors of the Company or
until the earlier resignation or removal of such directors.
(b)
In the event that, prior to the date of the
2007 Annual Meeting (as defined below), any Caxton Designee shall resign from
the Board, decide not to seek appointment to the Board or decide not to seek
election to the Board as contemplated by Section 1.3(c) of this Agreement,
Caxton shall be entitled to designate a replacement for such Caxton Designee as
a member of the Board (such replacement being a person whom Caxton believes in
good faith to be qualified to serve on the Board), and the Company shall take
all necessary action to replace such Caxton Designee with such designated
replacement as promptly as practicable.
Any such designated replacement who
becomes a Board member shall be deemed to be a Caxton Designee for all purposes
under