MUST BE
PROPORTIONATELY EXERCISED WITH RESPECT TO THE CALL OPTION SHARES SUBJECT TO THE
APPLICABLE CALL OPTION (I.E., IF PARENT AND THE INVESTOR COLLECTIVELY DESIRE TO
REPURCHASE 50% OF THE SHARES OF COMMON STOCK SUBJECT TO THE APPLICABLE CALL
OPTION, PARENT AND THE INVESTOR COLLECTIVELY MUST ALSO REPURCHASE 50% OF THE
SHARES OF SERIES A PREFERRED STOCK SUBJECT TO THE APPLICABLE CALL OPTION).
10
(E)
THE CLOSING OF THE PURCHASE OF THE CALL OPTION SHARES PURSUANT TO A
PARTICULAR CALL OPTION SHALL TAKE PLACE ON THE DATE DESIGNATED BY PARENT IN THE
CALL OPTION NOTICE OR SUPPLEMENTAL CALL OPTION NOTICE, WHICH DATE SHALL NOT BE
MORE THAN 60 DAYS NOR LESS THAN 15 DAYS AFTER THE DELIVERY OF THE LATER OF
EITHER SUCH NOTICE TO BE DELIVERED (OR, IF APPLICABLE, FROM THE DATE ON WHICH
THE INDEPENDENT INVESTMENT BANKING OR OTHER PROFESSIONAL VALUATION FIRM HAS
PRESENTED ITS FAIR MARKET VALUE DETERMINATION TO THE PARENT BOARD).
PARENT
AND/OR THE INVESTOR (AS APPLICABLE) SHALL EACH PAY THE PORTION OF THE AGGREGATE
PURCHASE PRICE FOR THE CALL OPTION SHARES SUBJECT TO THE APPLICABLE CALL OPTION
TO BE PURCHASED PURSUANT TO SUCH CALL OPTION BY PARENT OR THE INVESTOR (AS
APPLICABLE) BY IMMEDIATELY AVAILABLE FUNDS.
IN ADDITION, PARENT AND/OR THE
INVESTOR (AS APPLICABLE) MAY PAY THE PURCHASE PRICE FOR SUCH SHARES BY
OFFSETTING BONA FIDE DEBTS OWED BY EXECUTIVE TO EITHER OF THEM OR ANY OF THEIR
RESPECTIVE AFFILIATES.
PARENT AND ITS AFFILIATES SHALL BE ENTITLED TO RECEIVE
CUSTOMARY REPRESENTATIONS AND WARRANTIES (AND THERE SHALL BE NO OTHER
REPRESENTATIONS AND WARRANTIES AND THERE SHALL BE NO INDEMNIFICATION OTHER THAN
AS A RESULT OF THE BREACH OF SUCH AGREEMENT) FROM EXECUTIVE REGARDING GOOD TITLE
TO SUCH SHARES, THAT THE SHARES ARE FREE AND CLEAR OF ANY LIENS, SECURITY
INTERESTS, MORTGAGES, PLEDGES OR OTHER ENCUMBRANCES, THAT EXECUTIVE HAS THE
CAPACITY AND ALL NECESSARY AUTHORITY TO ENTER INTO SUCH AGREEMENT, THAT THE
AGREEMENT IS NOT IN VIOLATION OR CONTRAVENTION OF ANY OTHER AGREEMENT AND THAT
EXECUTIVE HAS CONSULTED WITH COUNSEL.
THERE SHALL BE NO REPRESENTATIONS OR
WARRANTIES OTHER THAN DESCRIBED IN THE PREVIOUS SENTENCE AND THE ONLY
INDEMNIFICATION OBLIGATION SHALL BE FOR A BREACH OF SUCH REPRESENTATIONS AND
WARRANTIES.
EXECUTIVE SHALL FURTHER AGREE TO RELEASE AND DISCHARGE ANY AND ALL
CLAIMS RELATED TO SUCH REPURCHASE.
(F)
THE RIGHT OF PARENT AND THE INVESTOR TO REPURCHASE CALL OPTION SHARES
PURSUANT TO THIS PARAGRAPH 11 SHALL TERMINATE UPON AN UNDERWRITTEN PUBLIC
OFFERING OF PARENT'S COMMON STOCK, REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED FROM TIME TO TIME.
(G)
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, ALL
REPURCHASES OF CALL OPTION SHARES HEREUNDER SHALL BE SUBJECT TO APPLICABLE
RESTRICTIONS CONTAINED IN THE DELAWARE GENERAL CORPORATION LAW AND IN PARENT'S
AND ITS SUBSIDIARIES' DEBT FINANCING AGREEMENTS WITH UNAFFILIATED THIRD PARTIES.
IF ANY SUCH RESTRICTIONS PROHIBIT THE REPURCHASE OF CALL OPTION SHARES HEREUNDER
WHICH PARENT AND/OR THE INVESTOR IS OTHERWISE ENTITLED TO MAKE, THE TIME PERIODS
PROVIDED IN THIS PARAGRAPH 11 SHALL BE SUSPENDED, AND PARENT AND