THE NOTICE FROM THE EMPLOYEE TO DETERMINE WHETHER IT SHALL ELECT TO EXERCISE
SUCH RIGHT.
(C)
RIGHT OF THE INITIAL INVESTORS.
IF THE COMPANY DETERMINES WITHIN THE FIRST REFUSAL PERIOD THAT IT DOES NOT WISH
TO EXERCISE ITS RIGHT TO PURCHASE ALL OF THE OFFERED SHARES, THE INITIAL
INVESTORS SHALL HAVE THE RIGHT TO PURCHASE ALL OR ANY PORTION REMAINING OF THE
OFFERED SHARES SPECIFIED IN SUCH NOTICE, AT THE OFFER PRICE AND ON THE OFFER
TERMS, AND ANY SUCH PURCHASE SHALL BE SETTLED AT THE TIME AND IN THE MANNER
SPECIFIED IN SECTION 8(D) HEREOF. THE INITIAL INVESTORS MUST DETERMINE WHETHER
TO EXERCISE SUCH RIGHT DURING THE PERIOD BEGINNING ON THE EARLIER OF (X) THE END
OF THE FIRST REFUSAL PERIOD AND (Y) THE DATE OF RECEIPT BY THE INITIAL INVESTORS
OF WRITTEN NOTICE THAT THE COMPANY HAS ELECTED NOT TO EXERCISE ITS RIGHTS UNDER
SECTION 8(B) AND ENDING 60 DAYS AFTER THE INITIAL INVESTOR'S RECEIPT OF THE
EMPLOYEE'S NOTICE PURSUANT TO SECTION 8(A) (THE "SECOND REFUSAL PERIOD").
(D)
MANNER OF EXERCISE. THE RIGHTS
PROVIDED HEREUNDER SHALL BE EXERCISED BY WRITTEN NOTICE TO THE EMPLOYEE GIVEN AT
ANY TIME DURING THE APPLICABLE PERIOD. IF SUCH RIGHT IS EXERCISED, THE EMPLOYEE
MAY NOT SELL PURSUANT TO THE QUALIFIED OFFER ANY OF THE SHARES THAT THE COMPANY
OR THE INITIAL INVESTORS HAVE ELECTED TO PURCHASE AND THE COMPANY OR THE INITIAL
INVESTORS, AS THE CASE MAY BE, SHALL DELIVER TO THE EMPLOYEE CASH, CHECK OR
OTHER READILY-AVAILABLE FUNDS FOR THE OFFER PRICE, AGAINST DELIVERY OF
CERTIFICATES OR OTHER INSTRUMENTS REPRESENTING THE SHARES SO PURCHASED,
APPROPRIATELY ENDORSED BY THE EMPLOYEE, AND FREE AND CLEAR OF ALL SECURITY
INTERESTS, LIENS, CLAIMS, ENCUMBRANCES, CHARGES, ETC. NOTWITHSTANDING THE
FOREGOING, NEITHER THE COMPANY NOR THE INITIAL INVESTORS, AS THE CASE MAY BE,
SHALL DELIVER ANY CASH, CHECK OR OTHER READILY-AVAILABLE FUNDS FOR THE OFFER
PRICE TO THE EMPLOYEE PRIOR TO THE DATE WHICH IS SIX MONTHS AND ONE DAY FROM THE
DATE OF THE EMPLOYEE'S ACQUISITION OF THE SHARES PURSUANT TO THIS AGREEMENT.
(E)
ADDITIONAL REQUIREMENTS FOR
SALE. SUBJECT TO SECTION 4, IF NEITHER THE COMPANY NOR THE INITIAL INVESTORS
SHALL HAVE EXERCISED ITS RIGHTS UNDER THIS SECTION 8, THEN THE EMPLOYEE
MAY TRANSFER THE OFFERED SHARES TO (BUT ONLY TO) THE INTENDED PURCHASER NAMED IN
HIS NOTICE TO THE COMPANY
11
AND THE INITIAL INVESTORS AT THE OFFER PRICE AND ON THE OFFER TERMS; PROVIDED
THAT:
(I)
SUCH TRANSFER MUST BE CONSUMMATED WITHIN 30 DAYS FOLLOWING
THE EXPIRATION OF THE SECOND REFUSAL PERIOD; AND
(II)
THE INTENDED PURCHASER MUST FIRST AGREE IN WRITING IN FORM AND
SUBSTANCE SATISFACTORY TO THE COMPANY TO MAKE AND BE BOUND BY THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 3(B), SECTION 3(E),
SECTION 3(F), SECTION 3(G) AND TO AGREE TO AND BE BOUND BY THE COVENANTS AND
OTHER RESTRICTIONS SET FORTH IN THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO,
SECTION 4, SECTION 6, SECTION 7, SECTION 8, SECTION 9 AND SECTION 11) AND SUCH
OTHER COVENANTS OR RESTRICTIONS