SCHEDULES ATTACHED TO, THIS AGREEMENT; (II) TO
AN AGREEMENT, INSTRUMENT OR OTHER DOCUMENT MEANS SUCH AGREEMENT, INSTRUMENT OR
OTHER DOCUMENT AS AMENDED, SUPPLEMENTED AND MODIFIED FROM TIME TO TIME TO THE
EXTENT PERMITTED BY THE PROVISIONS THEREOF AND BY THIS AGREEMENT; AND (III) TO A
STATUTE MEANS SUCH STATUTE AS AMENDED FROM TIME TO TIME AND INCLUDES ANY
REGULATIONS PROMULGATED THEREUNDER.
ALL REFERENCES HEREIN TO THE COMPANY OR ANY
SUBSIDIARY SHALL INCLUDE THE PREDECESSORS AND SUCCESSORS OF SUCH PERSON.
THE
SCHEDULES AND EXHIBITS REFERRED TO HEREIN SHALL BE CONSTRUED WITH AND AS AN
INTEGRAL PART OF THIS AGREEMENT TO THE SAME EXTENT AS IF THEY WERE SET FORTH
VERBATIM HEREIN.
TITLES TO ARTICLES AND HEADINGS OF SECTIONS ARE INSERTED FOR
CONVENIENCE OF REFERENCE ONLY AND SHALL NOT BE DEEMED A PART OF OR TO AFFECT THE
MEANING OR INTERPRETATION OF THIS AGREEMENT.
THIS AGREEMENT, THE COMPANY
ANCILLARY
10
AGREEMENTS AND THE OPTIONEE ANCILLARY AGREEMENTS SHALL BE CONSTRUED WITHOUT
REGARD TO ANY PRESUMPTION OR RULE REQUIRING CONSTRUCTION OR INTERPRETATION
AGAINST THE PARTY DRAFTING AN INSTRUMENT OR CAUSING ANY INSTRUMENT TO BE
DRAFTED.
ARTICLE II
OPTION TO ACQUIRE THE COMPANY; DELIVERIES
2.1.
OPTION TO ACQUIRE THE COMPANY.
AT ANY TIME
AFTER THE DATE HEREOF AND THROUGH AND INCLUDING THE OPTION TERMINATION DATE (THE
"OPTION PERIOD"), OPTIONEE SHALL HAVE AN IRREVOCABLE OPTION (THE "OPTION"), BUT
NOT THE OBLIGATION, TO ACQUIRE THE COMPANY PURSUANT TO THE MERGER, ON THE TERMS
AND SUBJECT TO THE CONDITIONS SET FORTH IN THE MERGER AGREEMENT.
OPTIONEE SHALL
EXERCISE THE OPTION, IF AT ALL, BY GIVING WRITTEN NOTICE TO THE COMPANY AND TO
THE STOCKHOLDERS' REPRESENTATIVE (AS DEFINED IN THE MERGER AGREEMENT, AND AT THE
ADDRESS FOR THE STOCKHOLDERS' REPRESENTATIVE SET FORTH THEREIN) OF THE EXERCISE
OF THE OPTION ON OR PRIOR TO THE OPTION TERMINATION DATE (THE DATE SUCH NOTICE
IS DELIVERED, THE "OPTION EXERCISE DATE").
2.2.
CONSIDERATION FOR THE OPTION AND PURCHASE
OPTION.
OPTIONEE SHALL PAY THE COMPANY AS CONSIDERATION FOR THE OPTION AN
AGGREGATE OF $50,000,000 (FIFTY MILLION DOLLARS), CONSISTING OF (A) THE LOI
PAYMENT AND (B) UPON THE EXECUTION OF THIS AGREEMENT, THE PAYMENT TO THE COMPANY
OF $25,000,000 (TWENTY-FIVE MILLION DOLLARS) IN CONSIDERATION OF THE OPTION BY
WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS TO AN ACCOUNT PREVIOUSLY SPECIFIED
IN WRITING BY THE COMPANY.
PURSUANT TO THE STOCKHOLDER OPTION AGREEMENTS,
OPTIONEE SHALL PAY, UPON THE EXECUTION OF THIS AGREEMENT, THE STOCKHOLDERS
$50,000,000 (FIFTY MILLION DOLLARS) (THE "STOCKHOLDERS' OPTION CONSIDERATION")
IN CONSIDERATION OF THE PURCHASE OPTIONS BY WIRE TRANSFER OF IMMEDIATELY
AVAILABLE FUNDS TO AN ACCOUNT MAINTAINED BY DUANE MORRIS LLP (FOR THE BENEFIT OF
THE STOCKHOLDERS) PREVIOUSLY SPECIFIED IN WRITING BY THE COMPANY, WHICH AMOUNT
SHALL BE DISBURSED BY DUANE MORRIS LLP TO THE STOCKHOLDERS IN ACCORDANCE WITH
THE PROCEDURES SET FORTH ON EXHIBIT F ATTACHED HERETO (SUCH PAYMENTS TO THE
COMPANY AND THE STOCKHOLDERS, COLLECTIVELY THE "OPTION CONSIDERATION").
EXCEPT
AS SET FORTH IN ARTICLE VI, THE OPTION CONSIDERATION SHALL BE NON-REFUNDABLE AND
NON-CREDITABLE.
2.3.
OPTIONEE'S DELIVERIES.
CONCURRENTLY WITH THE
EXECUTION AND DELIVERY OF