OF THE
COMPANY PAYABLE IN FULL IN ONE LUMP SUM ON THE THIRD ANNIVERSARY OF THE DATE OF
ISSUANCE AND BEARING INTEREST AT A RATE EQUAL TO SUCH RATE AS MAY BE DETERMINED
BY THE BOARD (PROVIDED THAT SUCH RATE MAY NOT BE LESS THAN THE PRIME RATE (AS
PUBLISHED IN THE WALL STREET JOURNAL FROM TIME TO TIME)), WHICH INTEREST SHALL
BE PAYABLE IN CASH ON A QUARTERLY BASIS, OR (C) ANY COMBINATION OF (A) AND
(B) AS THE BOARD MAY ELECT IN ITS DISCRETION; PROVIDED THAT, TO THE EXTENT THAT
THE COMPANY HAS READILY AVAILABLE CASH RESOURCES IN EXCESS OF ITS WORKING
CAPITAL AND OTHER REASONABLE CASH NEEDS AND WITHOUT IMPOSING ANY OBLIGATION ON
THE COMPANY TO RAISE FINANCING TO FUND THE REPURCHASES OR TO MATERIALLY IMPAIR
ITS FINANCIAL LIQUIDITY OR CONDITION, THE COMPANY SHALL USE REASONABLE EFFORTS
TO PAY THE PURCHASE PRICE FOR SUCH UNVESTED SHARES PURSUANT TO THE FOREGOING
CLAUSE (A).
EACH INVESTOR WILL PAY FOR THE UNVESTED SHARES PURCHASED BY IT BY A
CHECK OR WIRE TRANSFER OF FUNDS.
THE COMPANY AND THE INVESTORS WILL BE ENTITLED
TO RECEIVE CUSTOMARY REPRESENTATIONS AND WARRANTIES FROM THE SELLERS REGARDING
SUCH SALE.
(F)
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT, ALL REPURCHASES OF UNVESTED SHARES BY THE COMPANY PURSUANT TO THE
REPURCHASE OPTION SHALL BE SUBJECT TO APPLICABLE RESTRICTIONS CONTAINED IN THE
DELAWARE GENERAL CORPORATION LAW OR SUCH OTHER GOVERNING CORPORATE LAW, AND IN
THE COMPANY'S AND ITS SUBSIDIARIES' DEBT AND EQUITY FINANCING AGREEMENTS,
PROVIDED THAT WITH RESPECT TO ANY SUCH EQUITY FINANCING AGREEMENTS IN EFFECT ON
THE DATE HEREOF, ONLY SUCH RESTRICTIONS AS ARE SET FORTH IN SUCH AGREEMENTS AS
IN EFFECT ON
6
THE DATE HEREOF SHALL APPLY FOR PURPOSES OF THIS SECTION 3.2(F).
IF ANY SUCH
RESTRICTIONS PROHIBIT (I) THE REPURCHASE OF UNVESTED SHARES HEREUNDER WHICH THE
COMPANY IS OTHERWISE ENTITLED OR REQUIRED TO MAKE OR (II) DIVIDENDS OR OTHER
TRANSFERS OF FUNDS FROM ONE OR MORE SUBSIDIARIES TO THE COMPANY TO ENABLE SUCH
REPURCHASES, THEN THE COMPANY MAY MAKE SUCH REPURCHASES AS SOON AS IT IS
PERMITTED TO MAKE REPURCHASES OR RECEIVE FUNDS FROM SUBSIDIARIES UNDER SUCH
RESTRICTIONS BUT IN NO EVENT LATER THAN 12 MONTHS AFTER THE DATE OF THE
REPURCHASE NOTICE, AND FOR ANY SUCH REPURCHASE THAT IS TO BE MADE AT FAIR MARKET
VALUE, FAIR MARKET VALUE SHALL BE DETERMINED AS OF THE DATE SUCH RESTRICTIONS
LAPSE.
(G)
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT, IF THE FAIR MARKET VALUE OF UNVESTED SHARES IS FINALLY DETERMINED TO
BE AN AMOUNT AT LEAST 20% GREATER THAN THE PER SHARE REPURCHASE PRICE FOR SUCH
UNVESTED SHARE IN THE REPURCHASE NOTICE OR IN THE SUPPLEMENTAL REPURCHASE
NOTICE, EACH OF THE COMPANY AND THE INVESTORS SHALL HAVE THE RIGHT TO REVOKE ITS
EXERCISE OF THE REPURCHASE OPTION FOR ALL OR ANY PORTION OF THE UNVESTED SHARES
ELECTED TO BE REPURCHASED BY IT BY DELIVERING NOTICE OF SUCH REVOCATION IN
WRITING TO THE HOLDERS OF UNVESTED SHARES DURING THE THIRTY-DAY PERIOD