Common use of Tender Offer Clause in Contracts

Tender Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article 8, then, not later than the first business day after execution of this Agreement, the Company shall issue a public announcement of the execution of this Agreement. At the time of and following such public announcement, both parties shall fully cooperate with each other as necessary to allow the Purchaser to file such communications with the Commission under cover of Schedule TO as are required to be filed pursuant to Rule 14d-2(b) under the Exchange Act. Not later than the twentieth business day prior to the Shareholders Meeting, the Purchaser shall, subject to the provisions of this Agreement, commence the Tender Offer for up to 8,250,000 shares together with the associated rights ("Rights") issued pursuant to the Rights Agreement dated as of February 25, 1999 (the "Rights Agreement"), between the Company and American Securities Transfer & Trust, Inc., as Rights Agent (collectively, the "Tender Shares") at a price of $4.00 per Tender Share, net to the seller in cash. The Purchaser shall keep the Tender Offer open until the earlier of the date on which the Company Shareholders' Meeting is held and September 1, 2000 (the "Approval Date"). The Purchaser shall accept for payment and pay for all Tender Shares that have been validly tendered and not withdrawn pursuant to the Tender Offer promptly following the Shareholder Approval, subject to satisfaction, or waiver by the Purchaser, of the conditions set forth in this Agreement and in Annex I to this Agreement. The obligation of the Purchaser to accept for payment, purchase and pay for Tender Shares tendered pursuant to the offer shall be subject to the conditions set forth herein and in the Offer Documents, including the condition that a minimum of 500,000 Tender Shares shall have been validly tendered and not withdrawn prior to the expiration date of the Tender Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any shares owned by the Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Tender Offer. The Purchaser expressly reserves the right to increase the price per share payable in the Tender Offer or to make any other changes in the terms and conditions of the Tender Offer; provided, however, that, unless previously approved by the Company in writing, no change may be made which decreases the price per share payable in the Offer, which changes the form of consideration to be paid in the Tender Offer, which imposes conditions to the Tender Offer in addition to those set forth herein, which broadens the scope of such conditions, which increases the minimum number of Tender Shares which must be tendered as a condition to the acceptance for payment and payment for Tender Shares in the Tender Offer, or which otherwise amends the terms of the Tender Offer in a manner that is materially adverse to holders of shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, extend the Tender Offer if, by the Approval Date, any of the conditions to the Purchaser's obligation to purchase Tender Shares shall not be satisfied until such time as such conditions are satisfied. However, if the Company shall have held the Shareholders Meeting (with a quorum duly present) and a majority of the shareholders present and voting did not vote to approve the Transactions by the Approval Date, the Purchaser shall not extend the Tender Offer. It is agreed that the conditions to the Tender Offer set forth herein and in the Annex I to this Agreement are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants or agreements under this Agreement) or may be waived by the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be made in good faith and shall be final and binding on the parties. The Purchaser may, but is not obligated to, purchase Tender Shares in the Tender Offer if the Minimum Condition is not satisfied. However, only consummation of the Tender Offer for a number of Tender Shares which satisfies the Minimum Condition (a "Successful Tender Offer") shall result in the exchange of Exchangeable Notes for Convertible Notes and the cancellation of any outstanding Warrants.

Tender Offer. (a) Provided that this Agreement shall not have been terminated As promptly as reasonably practicable after the date hereof, but in accordance with Article 8, then, not no event later than five business days after the first business day after execution of this Agreement, the Company shall issue a public announcement of the execution of this Agreement. At the time of and following such public announcement, both parties shall fully cooperate with each other as necessary to allow the Purchaser to file such communications with the Commission under cover of Schedule TO as are required to be filed pursuant to Rule 14d-2(b) under the Exchange Act. Not later than the twentieth business day prior to the Shareholders Meeting, the Purchaser shall, subject to the provisions of this Agreement, or Merger Sub will commence the Tender Offer for up to 8,250,000 shares together with all of the associated rights ("Rights") issued pursuant to the Rights Agreement dated as of February 25, 1999 (the "Rights Agreement"), between the Company and American Securities Transfer & Trust, Inc., as Rights Agent (collectively, the "Tender Shares") outstanding Shares at a price of not less than $4.00 25.50 per Tender ShareShare in cash, net to the seller in cash. The Purchaser shall keep the Tender Offer open until the earlier of the date on which the Company Shareholders' Meeting is held and September 1seller, 2000 (the "Approval Date"). The Purchaser shall accept for payment and pay for all Tender Shares that have been validly tendered and not withdrawn pursuant to the Tender Offer promptly following the Shareholder Approval, subject to satisfaction, or waiver by the Purchaser, of the conditions set forth in this Agreement and in Annex I to this Agreement. The obligation of the Purchaser to accept for payment, purchase and pay for Tender Shares tendered pursuant to the offer shall be subject to the conditions set forth herein in Exhibit A, and, subject only to the terms and in conditions of the Offer DocumentsOffer, including will pay, as promptly as reasonably practicable after expiration of the condition that a minimum of 500,000 Tender Offer, for all Shares shall have been validly duly tendered and not withdrawn prior to the expiration date of the Tender Offer (the "Minimum Condition")withdrawn. Solely for purposes of determining whether the Minimum Condition has been satisfied, any shares owned by the Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Tender Offer. The Purchaser expressly reserves the right to waive any such condition other than the Minimum Condition, to increase the price per share Share payable in the Tender Offer or Offer, and to make any other changes in the terms and conditions of the Tender Offer; provided, however, thatthat no change may be made to the Minimum -------- ------- Condition, unless previously approved by the Company in writing, and no change may be made which decreases the price per share Share payable in the Offer, which changes reduces the form maximum number of consideration Shares to be paid purchased in the Tender Offer, which imposes conditions to the Tender Offer in addition to other than those set forth herein, in Exhibit A hereto or which broadens extends the scope of such conditions, which increases the minimum number of Tender Shares which must be tendered Offer (except as a condition to the acceptance for payment and payment for Tender Shares set forth in the Tender Offer, or which otherwise amends the terms of the Tender Offer in a manner that is materially adverse to holders of sharesfollowing sentence). Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Tender Offer beyond the scheduled expiration date (the initial scheduled expiration date being 20 business days following the commencement of the Offer) if, by at the Approval Datescheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Tender Shares accept for payment, and to pay for, the Shares, shall not be satisfied until such time as such conditions are satisfied. Howeveror waived, (ii) extend the Offer for any period required by any rule, regulation or interpretation of the SEC or the staff thereof applicable to the Offer, or (iii) extend the Offer for an aggregate period of not more than 10 business days beyond the latest applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence, if the Company shall have held the Shareholders Meeting (with a quorum duly present) and a majority as of the shareholders present and voting did not vote to approve the Transactions by the Approval Datesuch date, the Purchaser shall not extend the Tender Offer. It is agreed that all of the conditions to Purchaser's obligations to accept for payment, and to pay for, the Tender Shares are satisfied or waived, but (x) the number of Shares validly tendered and not withdrawn pursuant to the Offer set forth herein is less than 90 percent and in (y) Purchaser reasonably believes that such extension would cause the Annex I number of validly tendered and not withdrawn shares to this Agreement are for the sole benefit exceed 90 percent of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants or agreements under this Agreement) or may be waived by the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be made in good faith and shall be final and binding on the parties. The Purchaser may, but is not obligated to, purchase Tender Shares in the Tender Offer if the Minimum Condition is not satisfied. However, only consummation of the Tender Offer for a number of Tender Shares which satisfies the Minimum Condition (a "Successful Tender Offer") shall result in the exchange of Exchangeable Notes for Convertible Notes and the cancellation of any outstanding WarrantsShares.

Tender Offer. (a) Provided that this Agreement shall As promptly as practicable, and in any event not have been terminated in accordance with Article 8, then, not later more than the first business day after execution later of this Agreement, thirty (30) days from the Company shall issue a public announcement date hereof or seven (7) Business Days following delivery of the execution Target Historical Financials and the Target September 30 Financials (the “TO Commencement Date”), Parent shall commence (under the meaning of this Agreement. At the time of and following such public announcement, both parties shall fully cooperate with each other as necessary to allow the Purchaser to file such communications with the Commission under cover of Schedule TO as are required to be filed pursuant to Rule 14d-2(b) 14d-2 under the Exchange Act) an offer to purchase all outstanding shares of Parent Common Stock (the “Tender Offer”) for cash equal to their pro rata share of the aggregate amount then on deposit in the Trust Account, less Taxes and interest (the “Tender Consideration”). Not later than Parent agrees that no shares of Parent Common Stock held by Parent or Merger Sub will be tendered in the twentieth business day prior Tender Offer. Unless otherwise agreed to by the Shareholders MeetingParties, the Purchaser shall, Parent shall use its commercially reasonable efforts (subject to the provisions of this Agreement, commence market conditions) to conduct the Tender Offer for up without stockholder vote pursuant to 8,250,000 shares together Rule 13e-4 and Regulation 14E of the Exchange Act (as modified, waived or otherwise agreed to with the associated rights ("Rights"SEC) issued pursuant to which regulates issuer tender offers and in compliance with the Rights Agreement dated as requirements of February 25Parent’s certificate of incorporation, 1999 (and will file Tender Offer documents with the "Rights Agreement"), between the Company and American Securities Transfer & Trust, Inc., as Rights Agent (collectively, the "Tender Shares") at a price of $4.00 per Tender Share, net to the seller in cashSEC. The Purchaser shall keep the Tender Offer open until the earlier obligation of the date on which the Company Shareholders' Meeting is held and September 1, 2000 (the "Approval Date"). The Purchaser shall Parent to accept for payment and pay for all Tender Shares that have been shares of Parent Common Stock validly tendered and not validly withdrawn pursuant to the Tender Offer promptly following the Shareholder Approval, shall be subject to satisfaction, or waiver by the Purchaser, satisfaction of each of the conditions set forth in the Tender Offer. Unless agreed to by the Parties or required by the SEC, no material change (including changing the amount per share offered to the shareholders) may be made to the Tender Offer which imposes additional conditions to the Tender Offer or is inconsistent with this Agreement and in Annex I to this AgreementSection 4.3. The obligation of the Purchaser Parties hereby agree to accept for payment, purchase and pay for Tender Shares tendered pursuant negotiate in good faith to the offer shall be subject to amend the conditions set forth herein and in the Tender Offer Documents, including to reflect any changes that may be reasonably required as a result of discussions with the condition SEC or its staff. The Tender Offer shall expire on the date that a minimum of 500,000 Tender Shares shall have been validly tendered and not withdrawn prior to is twenty (20) Business Days following the expiration date commencement of the Tender Offer (the "Minimum Condition"“Initial Expiration Date”). Solely for purposes of determining whether Notwithstanding the Minimum Condition has been satisfiedforegoing, any shares owned by the Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant subject to the Tender Offer. The Purchaser expressly reserves the right to increase the price per share payable in the Tender Offer or to make provisions of Section 6.1, if, at any other changes in the terms and conditions scheduled expiration of the Tender Offer; provided, however, that, unless previously approved by the Company in writing, no change may be made which decreases the price per share payable in the Offer, which changes the form of consideration to be paid conditions set forth in the Tender Offer, which imposes conditions to have not been satisfied or waived, Parent may extend the Tender Offer in addition to those set forth hereinfor one or more consecutive periods beyond the Initial Expiration Date (the Initial Expiration Date as extended, which broadens the scope of such conditions, which increases the minimum number of Tender Shares which must be tendered as a condition to the acceptance for payment and payment for Tender Shares in the Tender Offer, or which otherwise amends the terms of the Tender Offer in a manner that is materially adverse to holders of shares“Expiration Time”). Notwithstanding the foregoing, the Purchaser mayParent, without the consent of the CompanyTarget, may extend the Tender Offer if, for any period required by the Approval Date, any Law of the conditions SEC, or the staff thereof, applicable to the Purchaser's obligation to purchase Tender Shares shall not be satisfied until such time as such conditions are satisfied. However, if the Company shall have held the Shareholders Meeting (with a quorum duly present) and a majority of the shareholders present and voting did not vote to approve the Transactions by the Approval Date, the Purchaser shall not extend the Tender Offer. It is agreed that the conditions to the Tender Offer set forth herein and in the Annex I to this Agreement are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants or agreements under this Agreement) or may be waived by the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be made in good faith and shall be final and binding on the parties. The Purchaser may, but is not obligated to, purchase Tender Shares in the Tender Offer if the Minimum Condition is not satisfied. However, only consummation of the Tender Offer for a number of Tender Shares which satisfies the Minimum Condition (a "Successful Tender Offer") shall result in the exchange of Exchangeable Notes for Convertible Notes and the cancellation of any outstanding Warrants.

Tender Offer. As promptly as practicable, and in any event ten Business Days after the date hereof, Parent shall commence (a) Provided that this Agreement shall not have been terminated in accordance with Article 8, then, not later than under the first business day after execution meaning of this Agreement, the Company shall issue a public announcement of the execution of this Agreement. At the time of and following such public announcement, both parties shall fully cooperate with each other as necessary to allow the Purchaser to file such communications with the Commission under cover of Schedule TO as are required to be filed pursuant to Rule 14d-2(b) 14d-2 under the Exchange Act) an offer to purchase all outstanding Ordinary Shares (the “Tender Offer”) for cash equal to their pro rata share of the aggregate amount then on deposit in the Trust Account, less Taxes and interest (the “Tender Consideration”). Not later than The Parent agrees that no Ordinary Shares held by the twentieth business day prior to the Shareholders Meeting, the Purchaser shall, subject to the provisions of this Agreement, commence Parent or Merger Sub will be tendered in the Tender Offer and that it will not accept for up to 8,250,000 shares together payment any Ordinary Shares held by FWAC Holdings, which Ordinary Shares shall be purchased by the Parent in accordance with the associated rights terms of the FWAC Holdings Repurchase Agreement as provided in Section 1.3(b). Unless otherwise agreed to by the Parties, Parent shall use its best efforts ("Rights"subject to market conditions) issued pursuant to the Rights Agreement dated as of February 25, 1999 (the "Rights Agreement"), between the Company and American Securities Transfer & Trust, Inc., as Rights Agent (collectively, the "Tender Shares") at a price of $4.00 per Tender Share, net to the seller in cash. The Purchaser shall keep conduct the Tender Offer open until the earlier without stockholder vote pursuant to Rule 13e-4 and Regulation 14E of the date on Exchange Act (as modified, waived or otherwise agreed to with the SEC) which regulates issuer tender offers and compliance with the Company Shareholders' Meeting is held and September 1, 2000 (the "Approval Date")requirement of Article 24 of its Charter. The Purchaser shall obligation of Parent to accept for payment and pay for all Tender Ordinary Shares that have been validly tendered and not validly withdrawn pursuant to the Tender Offer promptly following the Shareholder Approval, subject to satisfaction, or waiver by the Purchaser, of the conditions set forth in this Agreement and in Annex I to this Agreement. The obligation of the Purchaser to accept for payment, purchase and pay for Tender Shares tendered pursuant to the offer shall be subject to the conditions set forth herein and in the Offer Documents, including (i) the condition (the “Maximum Tender Condition”) that a minimum of 500,000 Tender no more than 825,000 Ordinary Shares (excluding such shares held by FWAC Holdings) shall have been validly tendered and not validly withdrawn pursuant to and prior to the expiration date of the Tender Offer and (ii) the "Minimum Condition")satisfaction of each of the other conditions set forth in Exhibit A hereto. Solely Parent may not waive the Maximum Tender Condition or the other conditions set forth in Exhibit A (except for purposes of determining whether the Minimum Condition has been satisfied, any shares owned conditions to be satisfied by the Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to Company) without the Tender Offer. The Purchaser expressly reserves the right to increase the price per share payable in the Tender Offer or to make any other changes in the terms and conditions written consent of the Tender Offer; provided, however, that, unless previously approved Company. Unless agreed to by the Company Parties in writing, no material change (including changing the amount per share offered to the shareholders) may be made which decreases the price per share payable in the Offer, which changes the form of consideration to be paid in the Tender Offer, Offer which imposes conditions to the Tender Offer in addition to those set forth herein, which broadens the scope of such conditions, which increases the minimum number of Tender Shares which must in Exhibit A hereto or is inconsistent with this Section 6.5. The Parties hereby agree to negotiate in good faith to amend Exhibit A to reflect any changes that may be tendered reasonably required as a condition result of discussions with the SEC or its staff. Furthermore, Parent may not waive any failure by a holder to validly tender his, her or its Ordinary Shares prior to the acceptance for payment and payment for Tender Shares in expiration of the Tender Offer, or which otherwise amends without the terms prior written consent of the Company. The Tender Offer shall expire on the date that is twenty (20) Business Days following the commencement of the Tender Offer (the “Initial Expiration Date”). Notwithstanding the foregoing, and subject to the provision of Section 8.1, if, at any scheduled expiration of the Tender Offer, the conditions set forth in a manner that is materially adverse to holders of sharesExhibit A, have not been satisfied or waived, Parent may extend the Tender Offer for one or more consecutive periods beyond the scheduled expiration date (the Initial Expiration Date as extended, the “Expiration Time”). Notwithstanding the foregoing, the Purchaser mayParent, without the consent of the Company, may extend the Tender Offer iffor any period required by any rule, by the Approval Date, any regulation or interpretation of the conditions SEC, or the staff thereof, applicable to the Purchaser's obligation to purchase Tender Shares shall not be satisfied until such time as such conditions are satisfied. However, if the Company shall have held the Shareholders Meeting (with a quorum duly present) and a majority of the shareholders present and voting did not vote to approve the Transactions by the Approval Date, the Purchaser shall not extend the Tender Offer. It is agreed that the conditions to the Tender Offer set forth herein and in the Annex I to this Agreement are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants or agreements under this Agreement) or may be waived by the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be made in good faith and shall be final and binding on the parties. The Purchaser may, but is not obligated to, purchase Tender Shares in the Tender Offer if the Minimum Condition is not satisfied. However, only consummation of the Tender Offer for a number of Tender Shares which satisfies the Minimum Condition (a "Successful Tender Offer") shall result in the exchange of Exchangeable Notes for Convertible Notes and the cancellation of any outstanding Warrants.

Tender Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article 8, then, not later than the first business day after execution of this Agreement, the Company shall issue a public announcement IX hereof and none of the execution events set forth in Annex A hereto shall have occurred or be existing, within five business days of this Agreement. At the time of and following such public announcement, both parties shall fully cooperate with each other as necessary to allow the Purchaser to file such communications with the Commission under cover of Schedule TO as are required to be filed pursuant to Rule 14d-2(b) under the Exchange Act. Not later than the twentieth business day prior to the Shareholders Meetingdate hereof, the Purchaser shall, subject to the provisions of this Agreement, will commence the Tender Offer for up to 8,250,000 shares together with the associated rights ("Rights") issued pursuant to the Rights Agreement dated as of February 25, 1999 a tender offer (the "Rights Agreement"), between the Company and American Securities Transfer & Trust, Inc., as Rights Agent (collectively, the "Tender SharesOffer") for all of the outstanding Shares that the Parent does not own at a price of $4.00 10.25 per Tender ShareShare in cash, net to the seller in cash. The Purchaser shall keep the Tender Offer open until the earlier of the date on which the Company Shareholders' Meeting is held and September 1seller, 2000 (the "Approval Date"). The Purchaser shall accept for payment and pay for all Tender Shares that have been validly tendered and not withdrawn pursuant to the Tender Offer promptly following the Shareholder Approval, subject to satisfaction, or waiver by the Purchaser, of the conditions set forth in this Agreement and in Annex I to this Agreement. The obligation of the Purchaser to accept for payment, purchase and pay for Tender Shares tendered pursuant to the offer shall be subject to the conditions set forth herein and in the Offer Documents, including the condition that a minimum of 500,000 Tender Shares shall have been validly tendered and not withdrawn prior Annex A hereto. Subject to the expiration date of the Tender Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any shares owned by the Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Tender Offer. The Purchaser expressly reserves the right to increase the price per share payable in the Tender Offer or to make any other changes in the terms and conditions of the Tender Offer, the Purchaser will promptly pay for all Shares duly tendered that it is obligated to purchase thereunder. The Company's Board of Directors and a majority of the Company's Independent Directors (as defined below) shall recommend acceptance of the Offer to its stockholders in a Solicitation/Recommendation Statement on Schedule 14D-9 (as such statement may be amended or supplemented from time to time, the "Schedule 14D-9") to be filed with the Securities and Exchange Commission (the "SEC") upon commencement of the Offer; provided, however, thatthat if the Company's Board of Directors determines that its fiduciary duties require it to amend or withdraw its recommendation, unless previously approved by such amendment or withdrawal shall not constitute a breach of this Agreement. The Purchaser will not without the prior written consent of the Company in writing, no change may be made which decreases decrease the price per share Share or change the form of consideration payable in the Offer, which changes decrease the form of consideration to be paid in the Tender Offer, which imposes conditions to the Tender Offer in addition to those set forth herein, which broadens the scope of such conditions, which increases the minimum number of Tender Shares which must be tendered as a condition to the acceptance for payment and payment for Tender Shares in the Tender Offersought, or which otherwise amends the terms of the Tender Offer in a manner that is materially adverse to holders of shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, extend the Tender Offer if, by the Approval Date, any of change the conditions to the Purchaser's obligation to purchase Offer or waive the Minimum Tender Shares shall not be satisfied until such time Condition (as such conditions are satisfieddefined on Annex A hereto). However, if the Company shall have held the Shareholders Meeting (with a quorum duly present) and a majority of the shareholders present and voting did not vote to approve the Transactions by the Approval Date, the The Purchaser shall not terminate or withdraw the Offer or extend the Tender Offer. It is agreed that expiration date of the Offer unless at the expiration date of the Offer the conditions to the Tender Offer set forth herein on Annex A hereto shall not have been satisfied or waived. (b) Purchaser agrees, as to the Offer to Purchase and in the Annex I to this Agreement are for the sole benefit related Letter of the Purchaser and Transmittal (which together, as either of them may be asserted by the Purchaser regardless of the circumstances giving rise to any such condition (including any action amended or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants or agreements under this Agreement) or may be waived by the Purchaser, in whole or in part at any time and supplemented from time to time, constitute the "Offer Documents"), and the Company agrees, as to the Schedule 14D-9, that such documents shall, in its sole discretionall material respects, comply with the requirements of the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations thereunder and other applicable laws. The failure by Company and its counsel, as to the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right Offer Documents, and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be made in good faith and shall be final and binding on the parties. The Purchaser may, but is not obligated to, purchase Tender Shares in the Tender Offer if the Minimum Condition is not satisfied. However, only consummation of the Tender Offer for a number of Tender Shares which satisfies the Minimum Condition (a "Successful Tender Offer") shall result in the exchange of Exchangeable Notes for Convertible Notes and the cancellation of any outstanding Warrants.1

Tender Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article 8IX hereof and none of the events set forth in Annex A hereto shall have occurred or be existing and the other conditions to the Offer specified in Annex A shall have been satisfied (such conditions, thentogether with the nonoccurrence of such events, not later than the first "Offer Conditions"), within five business day days after execution the public announcement by Purchaser of this Agreement, the Company Purchaser shall issue cause Merger Sub to commence a public announcement of the execution of this Agreement. At the time of and following such public announcement, both parties shall fully cooperate with each other as necessary to allow the Purchaser to file such communications with the Commission under cover of Schedule TO as are required to be filed pursuant to Rule 14d-2(b) under the Exchange Act. Not later than the twentieth business day prior to the Shareholders Meeting, the Purchaser shall, subject to the provisions of this Agreement, commence the Tender Offer for up to 8,250,000 shares together with the associated rights ("Rights") issued pursuant to the Rights Agreement dated as of February 25, 1999 tender offer (the "Offer") for all of the outstanding shares of Common Stock, par value $.25 per 2 share, of the Company, including the associated Rights Agreement"(as defined in Section 6.1(b), between the Company and American Securities Transfer & Trust, Inc., as Rights Agent ) (collectivelytogether, the "Tender Shares") at a price of $4.00 12.00 per Tender ShareShare in cash, net to the seller (but subject to any applicable Tax (as defined in cash. The Purchaser shall keep the Tender Offer open until the earlier of the date on which the Company Shareholders' Meeting is held and September 1, 2000 Section 6.1(o)) withholdings) (the "Approval DateMerger Consideration"), subject only to the Offer Conditions, and to comply with Rule 14e-1(c) under the Securities Exchange Act of 1934, as amended (including the rules and regulations thereunder, the "Exchange Act"). The Purchaser shall accept for payment and pay for all Tender Shares that have been validly tendered and not withdrawn pursuant to the Tender Offer promptly following the Shareholder Approval, subject to satisfaction, or waiver by the Purchaser, of the conditions set forth in this Agreement and in Annex I to this Agreement. The obligation of the Purchaser to accept for payment, purchase and pay for Tender Shares tendered pursuant to the offer shall be subject to the conditions set forth herein and in the Offer Documents, including the condition that a minimum of 500,000 Tender Shares shall have been validly tendered and not withdrawn prior to the initial expiration date of the Tender Offer (the "Minimum ConditionInitial Expiration Date") shall be the date that is twenty business days from the date (the "Commencement Date") the Offer Documents (as hereinafter defined) are first filed with the Securities and Exchange Commission (the "SEC"), including the Commencement Date as the first business day of such period. Solely for purposes Merger Sub shall not, without the prior written consent of determining whether the Minimum Condition has been satisfiedCompany, any shares owned by the Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Tender Offer. The Purchaser expressly reserves the right to increase decrease the price per share payable Share offered in the Tender Offer Offer, change the form of consideration offered or to make any other changes in the terms and conditions of the Tender Offer; provided, however, that, unless previously approved by the Company in writing, no change may be made which decreases the price per share payable in the Offer, which changes decrease the form number of consideration to be paid Shares sought in the Tender Offer, which imposes change the conditions to the Tender Offer in any manner adverse to the holders of Shares, impose conditions to the Offer in addition to those set forth hereinthe Offer Conditions, which broadens amend any term of the scope of such conditions, which increases the minimum number of Tender Shares which must be tendered as a condition Offer in any manner adverse to the acceptance for payment holders of Shares or waive the Minimum Condition (as defined in Annex A). Purchaser and payment for Tender Shares Merger Sub expressly reserve the right, in their sole discretion, to waive any condition (other than the Minimum Condition, as defined in the Tender Offer, or which otherwise amends the terms of the Tender Offer in a manner that is materially adverse to holders of shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, extend the Tender Offer if, by the Approval Date, any of the conditions to the Purchaser's obligation to purchase Tender Shares shall not be satisfied until such time as such conditions are satisfied. However, if the Company shall have held the Shareholders Meeting (with a quorum duly present) and a majority of the shareholders present and voting did not vote to approve the Transactions by the Approval Date, the Purchaser shall not extend the Tender OfferConditions). It is agreed that the terms and conditions set forth in the Offer, including but not limited to the Tender Offer set forth herein and in the Annex I to this Agreement Conditions, are for the sole benefit of the Purchaser and Merger Sub and may be asserted by the Purchaser and Merger Sub regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants or agreements under this Agreement) or may be waived by the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be made in good faith and shall be final and binding on the parties. The Purchaser may, but is not obligated to, purchase Tender Shares in the Tender Offer if the Minimum Condition is not satisfied. However, only consummation of the Tender Offer for a number of Tender Shares which satisfies the Minimum Condition (a "Successful Tender Offer") shall result in the exchange of Exchangeable Notes for Convertible Notes and the cancellation of any outstanding Warrantscondition.

Tender Offer. (a) Provided that this Agreement shall not have ------------ been terminated in accordance with Article 8, then, not later than the first business day after execution of this Agreement, the Company shall issue a public announcement IV hereof and none of the execution events set forth in Annex A hereto shall have occurred or be existing, within seven business days of this Agreement. At the time of and following such public announcementdate hereof, both parties shall fully cooperate with each other as necessary to allow the Purchaser to file such communications with the Commission under cover of Schedule TO as are required to be filed pursuant to Rule 14d-2(b) under the Exchange Act. Not later than the twentieth business day prior to the Shareholders Meeting, the Purchaser shall, subject to the provisions of this Agreement, will commence the Tender Offer for up to 8,250,000 shares together with the associated rights ("Rights") issued pursuant to the Rights Agreement dated as of February 25, 1999 a tender offer (the "Rights AgreementOffer") for 22,250,327 shares of common stock, no par value, of the Company ----- (the "Shares"), between the Company and American Securities Transfer & Trust, Inc., as Rights Agent (collectively, the "Tender Shares") at a price of $4.00 51.00 per Tender ShareShare in cash, net to the seller seller, ------ subject to the conditions set forth in cashAnnex A hereto. The Purchaser shall keep Subject to the Tender Offer open until the earlier terms and conditions of the date on which the Company Shareholders' Meeting is held and September 1Offer, 2000 (the "Approval Date"). The Purchaser shall will promptly accept for payment and pay for all Tender Shares that have been validly tendered and not withdrawn pursuant that it is obligated to the Tender Offer promptly following the Shareholder Approval, subject to satisfaction, or waiver by the Purchaser, purchase thereunder. The Company's Board of Directors shall recommend acceptance of the conditions set forth Offer to its shareholders in this Agreement and in Annex I to this Agreement. The obligation of the Purchaser to accept for payment, purchase and pay for Tender Shares tendered pursuant to the offer shall be subject to the conditions set forth herein and in the Offer Documents, including the condition that a minimum of 500,000 Tender Shares shall have been validly tendered and not withdrawn prior to the expiration date of the Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (the "Minimum ConditionSchedule 14D-9"). Solely for purposes of determining whether ) to be filed with the Minimum Condition has been satisfied, any shares owned by Securities and Exchange -------------- Commission (the Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Tender Offer. The Purchaser expressly reserves the right to increase the price per share payable in the Tender Offer or to make any other changes in the terms and conditions "SEC") upon commencement of the Tender Offer; provided, however, that --- -------- ------- if the Company's Board of Directors determines in good faith, after consultation with its outside counsel, that it is necessary to amend or withdraw its recommendation in order for its directors to comply with their respective fiduciary duties, such amendment or withdrawal shall not constitute a breach of this Agreement. The initial expiration date of the Offer shall be the date twenty business days from and including the date (the "Commencement Date") the Offer Documents (as defined ----------------- in Section 1.1(c) below) are first filed with the Securities and Exchange Commission. Purchaser expressly reserves the right, in its sole discretion, to waive, set forth or change any term and condition of the Offer; provided, that, -------- unless previously approved by the Company in writing, no change provision may be made which set forth or changed which: (i) increases or, except as set forth in the next succeeding sentence, decreases the Tender Offer Condition (as defined in Annex A hereto); (ii) decreases the price per share payable Share to be paid in the Offer, which ; (iii) changes the form of consideration to be paid payable in the Tender Offer, which Offer (other than by adding consideration); (iv) imposes conditions to the Tender Offer in addition to those set forth herein, which broadens the scope of such conditions, which increases the minimum number of Tender Shares which must be tendered as a in Annex A hereto; or (v) amends or modifies any term or condition to the acceptance for payment and payment for Tender Shares in the Tender Offer, or which otherwise amends the terms of the Tender Offer in a manner that is materially adverse to the holders of sharesShares. Notwithstanding Without the foregoing, the Purchaser may, without the prior written consent of the Company, Purchaser shall not extend the Tender expiration date of the Offer ifbeyond the initial expiration date of the Offer; provided, by that, if on the Approval Date, -------- ---- initially scheduled expiration date of the Offer (or any subsequent expiration date) any of the conditions to the Purchaser's obligation Offer have not been satisfied, Purchaser may in its sole discretion extend from time to purchase Tender Shares shall not be satisfied until such time as such conditions are satisfied. However, if the Company shall have held Offer for up to and including an additional twenty (20) business days in the Shareholders Meeting (with a quorum duly present) and a majority aggregate after the initial expiration date of the shareholders present Offer, and voting did not vote may in its sole discretion, in connection with any such extension, amend the terms of the Offer, but only to approve reduce the Transactions by Tender Offer Condition to any number of Shares greater than 20,300,320 Shares (the Approval Date, the "Reduced Tender Offer Condition"); it being understood that if Purchaser shall accept for payment any Shares validly tendered and not extend withdrawn pursuant to the Tender Offer. It is agreed that the conditions , it shall accept for payment all such Shares up to the Tender Offer set forth herein and in the Annex I to this Agreement are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to any such condition Condition. The Offer shall further provide that Shares (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants or agreements under this Agreement) or may be waived by the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Purchaser with respect Shares issued pursuant to any of the foregoing conditions Company's employee or director benefit plans (includingincluding the Stock Plans)) may be tendered utilizing a notice of guaranteed delivery, without limitation, the satisfaction of such conditions) which shall be made in good faith and shall be final and binding on the parties. The Purchaser may, but is not obligated to, purchase Tender Shares in the Tender Offer if the Minimum Condition is not satisfied. However, only consummation require delivery of the Tender Offer for a number of Tender Shares which satisfies to the Minimum Condition depository within three business days (a "Successful Tender Offer") shall result in the exchange of Exchangeable Notes for Convertible Notes or such longer period as may be permitted under applicable law and agreed to by Purchase and the cancellation of any outstanding WarrantsCompany) following acceptance for payment by Purchaser.

Tender Offer. (a) Provided that this Agreement (w) the Initial Purchase shall not have been terminated closed, (x) none of the events set forth in accordance with Article 8Annex I hereto shall have occurred and be continuing, then, not later than (y) the first business day after execution average closing price of this Agreement, the Company shall issue a Common Stock for the fifteen trading days following the public announcement of this Agreement is less than or equal to $2.42 per share (the execution of this Agreement. At "Offer Price"), and (z) no other competing offer to purchase the time of Company or the Shares (as hereinafter defined) is made at any price (the conditions in w, x, y and following such public announcementz above being referred to as the "Offer Conditions"), both parties then on or before July 31, 2000, or as soon as practicable thereafter (but in no event later than August 7, 2000), Buyer shall fully cooperate with each other as necessary to allow the Purchaser to file such communications with the Commission under cover of Schedule TO as are required to be filed pursuant to Rule 14d-2(b) commence under the Securities Exchange Act. Not later than the twentieth business day prior to the Shareholders MeetingAct of 1934, the Purchaser shall, subject to the provisions of this Agreement, commence the Tender Offer for up to 8,250,000 shares as amended (together with the associated rights (rules and regulations promulgated thereunder, the "RightsExchange Act")) issued pursuant to the Rights Agreement dated as of February 25, 1999 a tender offer (the "Rights AgreementOffer"), between ) to purchase all of the Company and American Securities Transfer & Trust, Inc., as Rights Agent outstanding shares of Common Stock other than the Seller Shares (collectively, the "Tender Shares") at a price of $4.00 the Offer Price per Tender Share, net to the seller in cash, which Offer shall be on the terms set forth herein. The Purchaser shall keep the Tender Offer open until the earlier Neither Buyer's commencement of the date on which Offer nor the Company Shareholders' Meeting is held and September 1, 2000 (the "Approval Date"). The Purchaser shall accept for payment and pay for all Tender agreement by any holder of Shares that have been validly tendered and not withdrawn to tender such Shares pursuant to the Tender Offer promptly following shall be a condition precedent to the Shareholder ApprovalClosing of the purchase of the Seller Shares. Buyer shall, subject only to satisfaction, the satisfaction or waiver by the Purchaser, of the conditions set forth in this Agreement and in Annex I to this Agreement. The obligation of hereto (the Purchaser to "Offer Conditions"), accept for payment, purchase and pay for Tender for, all Shares validly tendered pursuant to the offer Offer (and not withdrawn) as soon as practicable after such acceptance and payment is legally permitted. Payment for any Shares accepted for payment shall be subject made within two business days after acceptance thereof by delivering the purchase price for such Shares to the conditions set forth herein and in the Offer Documents, including the condition that a minimum of 500,000 Tender depositary to whom such Shares have been tendered. Buyer shall have been validly tendered and not withdrawn prior to the expiration date of the Tender Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any shares owned by the Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Tender Offer. The Purchaser expressly reserves the right to increase the price per share payable in the Tender Offer or to make any other changes in change the terms and conditions of the Tender Offer; provided, however, that, unless previously approved by the Company in writing, no change may be made which decreases the price per share payable in the Offer, which so long as such changes do not, without the prior written approval of the Company, (i) decrease the Offer price or the number of Shares sought, (ii) amend the Offer to modify or add any conditions, (iii) change the form of consideration to be paid payable in the Tender Offer, which imposes conditions Offer or (iv) otherwise amend the Offer in any manner adverse to the Tender holders of Shares other than to extend the Offer in addition to those set forth herein, which broadens as permitted hereunder. The Offer shall expire on the scope of such conditions, which increases date designated by the minimum number of Tender Shares which must be tendered as a condition to the acceptance for payment and payment for Tender Shares in the Tender Offer, or which otherwise amends the terms of the Tender Offer in a manner Buyer that is materially adverse within three business days after the earliest time permitted by the Exchange Act, unless the Offer is extended by Buyer as permitted herein (the date of expiration, as the same may be extended, is herein referred to holders of sharesas the "Expiration Date"). Notwithstanding the foregoingBuyer may, the Purchaser mayfrom time to time, without the consent of the Company, extend the Tender Offer if, by the Approval Date, Expiration Date (i) if any of the conditions Offer Conditions has not been satisfied, for the minimum period of time deemed appropriate by Buyer to satisfy such condition, but in no event later than the 20th business day following the initial Expiration Date (subject, with respect to the Purchaser's obligation Minimum Condition (as defined in Annex I hereto), to purchase Tender Shares shall not be satisfied until such time as such conditions are satisfied. However, the provisions of clause (ii) hereof); (ii) if the Company shall have held the Shareholders Meeting (with a quorum duly present) and a majority all of the shareholders present and voting did Offer Conditions have been satisfied other than the Minimum Condition, for a period of not vote to approve more than 10 business days following the Transactions by the Approval initial Expiration Date, in order to allow the Purchaser shall not extend Minimum Condition to be satisfied; and (iii) to provide for a subsequent offering period in accordance with Rule 14d- 11 under the Tender OfferExchange Act. It is agreed that the conditions to the Tender Offer set forth herein and in Annex I, other than the Annex I to this Agreement Minimum Condition, are for the sole benefit of the Purchaser Buyer, and may be asserted by the Purchaser it regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants or agreements under this Agreement) or may be waived by the PurchaserBuyer, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be made in good faith and shall be final and binding on the parties. The Purchaser may, but is not obligated to, purchase Tender Shares in the Tender Offer if the Minimum Condition is not satisfied. However, only consummation of the Tender Offer for a number of Tender Shares which satisfies the Minimum Condition (a "Successful Tender Offer") shall result in the exchange of Exchangeable Notes for Convertible Notes and the cancellation of any outstanding Warrants.

Tender Offer. (a) Provided that this Agreement shall not have ------------ been terminated in accordance with Article 8, then, not later than the first business day after execution of this Agreement, the Company shall issue a public announcement IX hereof and none of the execution events set forth in Annex A hereto shall have occurred or be existing, within five business days of this Agreement. At the time of and following such public announcement, both parties date hereof Purchaser shall fully cooperate with each other as necessary cause Merger Sub to allow the Purchaser to file such communications with the Commission under cover of Schedule TO as are required to be filed pursuant to Rule 14d-2(b) under the Exchange Act. Not later than the twentieth business day prior to the Shareholders Meeting, the Purchaser shall, subject to the provisions of this Agreement, commence the Tender Offer for up to 8,250,000 shares together with the associated rights ("Rights") issued pursuant to the Rights Agreement dated as of February 25, 1999 a tender offer (the "Offer") for all of the outstanding shares of Common Stock, par value ----- $.001 per share, of the Company, including the associated Rights Agreement"(as defined in Section 6.1(b), between the Company and American Securities Transfer & Trust, Inc., as Rights Agent ) (collectivelytogether, the "Tender Shares") at a price of $4.00 28.50 per Tender ShareShare in cash, ------ net to the seller seller, subject to the terms and conditions set forth in cash. The Purchaser shall keep the Tender Offer open until the earlier of the date on which the Company Shareholders' Meeting is held and September 1, 2000 Annex A hereto (the "Approval DateOffer Conditions"). The Purchaser shall accept for payment and pay for all Tender Shares that have been validly tendered and not withdrawn pursuant to initial expiration date (the Tender Offer promptly following the Shareholder Approval, subject to satisfaction, or waiver by the Purchaser, of the conditions set forth in this Agreement and in Annex I to this Agreement. The obligation of the Purchaser to accept for payment, purchase and pay for Tender Shares tendered pursuant to the offer "Initial ---------------- ------- Expiration Date") shall be subject the date twenty business days from the date (the --------------- "Commencement Date") the Offer Documents (as hereinafter defined) are first ------------------ filed with the Securities and Exchange Commission (the "SEC"), including the --- Commencement Date as the first business day of such period. Purchaser and Merger Sub expressly reserve the right, in their sole discretion, to waive any condition (other than the conditions set forth herein and Minimum Condition, as defined in the Offer Documents, including the condition that a minimum of 500,000 Tender Shares shall have been validly tendered Conditions) and not withdrawn prior to the expiration date of the Tender Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any shares owned by the Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Tender Offer. The Purchaser expressly reserves the right to increase the price per share payable in the Tender Offer set forth or to make change any other changes in the terms and conditions of the Tender Offer; provided, however, provided -------- that, unless previously approved by the Company in writing, no change provision may be made set forth or changed which decreases the price per share Share payable in the Offer, which changes the form of consideration payable in the Offer (other than by adding consideration), reduces the maximum number of Shares to be paid purchased in the Tender Offer, which or imposes conditions to the Tender Offer in addition to those set forth herein, which broadens the scope of such conditions, which increases the minimum number of Tender Shares which must be tendered as a condition to the acceptance for payment and payment for Tender Shares in the Tender Offer, or which otherwise amends the terms of the Tender Offer in a manner herein that is are materially adverse to holders of sharesthe Shares. Notwithstanding Merger Sub covenants and agrees that, subject to the foregoingterms and conditions of the Offer, including but not limited to the Offer Conditions, it will accept for payment and pay for Shares as soon as it is permitted to do so under applicable law, provided that Merger -------- Sub shall have the right, in its sole discretion, to extend the Offer from time to time notwithstanding the prior satisfaction of the Offer Conditions to a date not beyond the fifth business day following the satisfaction of all of the Offer Conditions if more than 90% of the outstanding Shares (on a fully diluted basis) have not been duly tendered (exclusive of Shares tendered by guaranteed delivery) and not withdrawn. Purchaser mayagrees that, without unless it is permitted to terminate this Agreement pursuant to Article IX, it can terminate the consent Offer only on a scheduled expiration date. Purchaser further agrees that: (A) in the event that it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in paragraphs (a), (c), (d) or (f) of the Offer Conditions to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, extend the Tender Offer if, by until the Approval Date, any earlier of the conditions to the Purchaser's obligation to purchase Tender Shares shall not be satisfied until (1) such time as such condition is or conditions are satisfied or waived and (2) the date chosen by the Company which shall not be later than (x) September 15, 1997 or (y) the earliest date on which the Company reasonably believes such condition or conditions will be satisfied. However; provided that, if such condition is not or -------- conditions are not satisfied by any date chosen by the Company shall have held pursuant to this clause (y), the Shareholders Meeting (with a quorum duly present) and a majority Company may request further extensions of the shareholders present Offer not beyond September 15, 1997; and voting did not vote (B) it shall, at the request of the Company made in writing at least one business day prior to approve the Transactions Initial Expiration Date (which request may be made by the Approval DateCompany only on one occasion), the Purchaser shall not extend the Tender OfferOffer for up to five business days from such Initial Expiration Date. It is agreed that the terms and conditions set forth in the Offer, including but not limited to the Tender Offer set forth herein and in the Annex I to this Agreement Conditions, are for the sole benefit of the Purchaser and Merger Sub and may be asserted by the Purchaser and Merger Sub regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants or agreements under this Agreement) or may be waived by the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be made in good faith and shall be final and binding on the parties. The Purchaser may, but is not obligated to, purchase Tender Shares in the Tender Offer if the Minimum Condition is not satisfied. However, only consummation of the Tender Offer for a number of Tender Shares which satisfies the Minimum Condition (a "Successful Tender Offer") shall result in the exchange of Exchangeable Notes for Convertible Notes and the cancellation of any outstanding Warrantscondition.

Tender Offer. (a) Provided that this Agreement shall not have ------------ been terminated in accordance with Article 8, then, not later than the first business day after execution of this Agreement, the Company shall issue a public announcement IX hereof and none of the execution events set forth in Annex A hereto shall have occurred or be existing, within five business days of this Agreement. At the time of and following such public announcementdate hereof, both parties Purchaser shall fully cooperate with each other as necessary cause Merger Sub to allow the Purchaser to file such communications with the Commission under cover of Schedule TO as are required to be filed pursuant to Rule 14d-2(b) under the Exchange Act. Not later than the twentieth business day prior to the Shareholders Meeting, the Purchaser shall, subject to the provisions of this Agreement, commence the Tender Offer for up to 8,250,000 shares together with the associated rights ("Rights") issued pursuant to the Rights Agreement dated as of February 25, 1999 a tender offer (the "Offer") for all of the outstanding shares of Common Stock, par value ----- $1.00 per share, of the Company, including the associated Rights Agreement"(as defined in Section 6.1(b), between the Company and American Securities Transfer & Trust, Inc., as Rights Agent ) (collectivelytogether, the "Tender Shares") at a price of $4.00 22.00 per Tender ShareShare in cash, ------ net to the seller seller, subject to the terms and conditions set forth in cash. The Purchaser shall keep the Tender Offer open until the earlier of the date on which the Company Shareholders' Meeting is held and September 1, 2000 Annex A hereto (the "Approval DateOffer Conditions"). The Purchaser shall accept for payment and pay for all Tender Shares that have been validly tendered and not withdrawn pursuant to the Tender Offer promptly following the Shareholder Approval, subject to satisfaction, or waiver by the Purchaser, of the conditions set forth in this Agreement and in Annex I to this Agreement. The obligation of the Purchaser to accept for payment, purchase and pay for Tender Shares tendered pursuant to the offer shall be subject to the conditions set forth herein and in the Offer Documents, including the condition that a minimum of 500,000 Tender Shares shall have been validly tendered and not withdrawn prior to the initial expiration date of the Tender Offer shall ---------------- be the date twenty business days from and including the date (the "Minimum ConditionCommencement ------------ Date") the Offer Documents (as hereinafter defined) are first filed with the ---- Securities and Exchange Commission (the "SEC"). Solely for purposes of determining whether Purchaser and Merger Sub --- expressly reserve the right, in their sole discretion, to waive any condition (other than the Minimum Condition has been satisfiedCondition, any shares owned by the Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Tender Offer. The Purchaser expressly reserves the right to increase the price per share payable as defined in the Tender Offer Conditions) and to set forth or to make change any other changes in the terms term and conditions condition of the Tender Offer; provided, however, provided that, -------- unless previously approved by the Company in writing, no change provision may be made set forth or changed which decreases the price per share Share payable in the Offer, which changes the form of consideration payable in the Offer (other than by adding consideration), reduces the maximum number of Shares to be paid purchased in the Tender Offer, which or imposes conditions to the Tender Offer in addition to those set forth herein, which broadens the scope of such conditions, which increases the minimum number of Tender Shares which must be tendered as a condition to the acceptance for payment and payment for Tender Shares in the Tender Offer, or which otherwise amends the terms of the Tender Offer in a manner herein that is are materially adverse to holders of sharesthe Shares. Notwithstanding Merger Sub covenants and agrees that, subject to the foregoing, the Purchaser may, without the consent terms and conditions of the CompanyOffer, including but not limited to the Offer Conditions, it will accept for payment and pay for Shares as soon as it is permitted to do so under applicable law, provided that Merger Sub shall have the right, in its sole -------- discretion, to extend the Tender Offer if, by from time to time notwithstanding the Approval Date, any prior satisfaction of the conditions to the Purchaser's obligation to purchase Tender Shares shall not be satisfied until such time as such conditions are satisfied. However, if the Company shall have held the Shareholders Meeting (with a quorum duly present) and a majority of the shareholders present and voting did not vote to approve the Transactions by the Approval Date, the Purchaser shall not extend the Tender OfferOffer Conditions. It is agreed that the terms and conditions set forth in the Offer, including but not limited to the Tender Offer set forth herein and in the Annex I to this Agreement Conditions, are for the sole benefit of the Purchaser and Merger Sub and may be asserted by the Purchaser and Merger Sub regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants or agreements under this Agreement) or may be waived by the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be made in good faith and shall be final and binding on the parties. The Purchaser may, but is not obligated to, purchase Tender Shares in the Tender Offer if the Minimum Condition is not satisfied. However, only consummation of the Tender Offer for a number of Tender Shares which satisfies the Minimum Condition (a "Successful Tender Offer") shall result in the exchange of Exchangeable Notes for Convertible Notes and the cancellation of any outstanding Warrantscondition.

Tender Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article 8IX hereof and none of the events set forth in Annex A hereto shall have occurred or be existing, then, not later than within five business days after the first business day after execution of this Agreement, the Company shall issue a public announcement of the execution of this Agreement. At the time of and following such public announcement, both parties shall fully cooperate with each other as necessary to allow the Purchaser to file such communications with the Commission under cover of Schedule TO as are required to be filed pursuant to Rule 14d-2(b) under the Exchange Act. Not later than the twentieth business day prior to the Shareholders Meeting, the Purchaser shall, subject to the provisions of this Agreement, Sub will commence the Tender Offer for up to 8,250,000 shares together with the associated rights ("Rights") issued pursuant to the Rights Agreement dated as of February 25, 1999 a tender offer (the "Rights AgreementOffer") for all of the outstanding shares of ----- common stock, par value $0.001 per share (the "Shares"), between of the Company and American Securities Transfer & Trust, Inc., as Rights Agent (collectively, the "Tender Shares") at a ------ price of $4.00 16.00 per Tender ShareShare in cash, net to the seller in cashseller, which Offer shall have an initial expiration date not later than twenty (20) business days after the commencement of the Offer. The obligation of Purchaser shall keep the Tender Offer open until the earlier of the date on which the Company Shareholders' Meeting is held and September 1, 2000 (the "Approval Date"). The Purchaser shall Sub to accept for payment and pay for all Tender Shares that have been validly tendered and not withdrawn pursuant to the Tender Offer promptly following the Shareholder Approval, subject to satisfaction, or waiver by the Purchaser, of the conditions set forth in this Agreement and in Annex I to this Agreement. The obligation of the Purchaser to accept for payment, purchase and pay for Tender Shares tendered pursuant to the offer Offer shall be subject only to the satisfaction or waiver of the conditions to the Offer set forth in Annex A hereto. It is agreed that the Minimum Condition (as defined in Annex A) and the other conditions set forth herein in Annex A hereto are for the sole benefit of Purchaser Sub and in may be asserted by Purchaser Sub regardless of the Offer Documentscircumstances giving rise to any such condition unless the Purchaser, including the condition that a minimum of 500,000 Tender Shares Purchaser Sub or their Affiliates shall have been validly tendered and not withdrawn prior caused the circumstances giving rise to the expiration date of the Tender Offer (the "Minimum Condition")such condition. Solely for purposes of determining whether the Minimum Condition has been satisfied, any shares owned by the Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Tender Offer. The Purchaser Sub expressly reserves the right in its sole discretion to waive, in whole or in part, at any time or from time to time, any such condition (other than the Minimum Condition, which may not be waived without the prior written consent of the Company), to increase the price per share Share payable in the Tender Offer or to make any other changes in the terms and conditions of the Tender Offer; provided, however, provided that, unless previously approved by the Company in writing, no change -------- may be made which that decreases the price per share Share payable in the Offer, which reduces the Minimum Condition, changes the form of consideration payable in the Offer, reduces the maximum number of Shares to be paid purchased in the Tender Offer, which imposes conditions to the Tender Offer in addition to those set forth herein, which broadens the scope of in Annex A hereto or amends or modifies such conditions, which increases the minimum number of Tender Shares which must be tendered as a condition conditions in any manner adverse to the acceptance holders of Shares. Purchaser Sub covenants and agrees that, subject to the conditions of the Offer set forth in Annex A hereto, Purchaser Sub shall accept for payment and payment pay for Tender Shares in that have been validly tendered and not withdrawn pursuant to the Tender OfferOffer as soon as it is permitted to do so under applicable law; provided that, or which otherwise amends if the terms number of Shares that have been validly tendered and not withdrawn represent less than 90% of the Tender Offer in Shares outstanding on a manner that is materially adverse to holders of shares. Notwithstanding the foregoingfully diluted basis, the Purchaser may, without the consent of the Company, Sub may extend the Tender Offer if, by up to the Approval Date, any of fifth business day following the date on which all conditions to the Purchaser's obligation to purchase Tender Shares Offer shall not be first have been satisfied until such time as such conditions are satisfied. However, if the Company shall have held the Shareholders Meeting (with a quorum duly present) and a majority of the shareholders present and voting did not vote to approve the Transactions by the Approval Date, the Purchaser shall not extend the Tender Offer. It is agreed that the conditions to the Tender Offer set forth herein and in the Annex I to this Agreement are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants or agreements under this Agreement) or may be waived by the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be made in good faith and shall be final and binding on the parties. The Purchaser may, but is not obligated to, purchase Tender Shares in the Tender Offer if the Minimum Condition is not satisfied. However, only consummation of the Tender Offer for a number of Tender Shares which satisfies the Minimum Condition (a "Successful Tender Offer") shall result in the exchange of Exchangeable Notes for Convertible Notes and the cancellation of any outstanding Warrantswaived.

Tender Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article 8, then, not later than Notwithstanding anything to the first business day after execution of this Agreementcontrary contained herein, the Company shall issue a public announcement parties hereto agree that the Escrow Agent shall, upon receipt of the execution written direction of this Agreement. At the time Paying Agent, direct the Transfer Agent to register all of the One Year Escrow Shares and following such public announcementthe Two Year Escrow Shares, both parties shall fully cooperate with each other as necessary to allow the Purchaser to file such communications with the Commission under cover of Schedule TO as are required to be filed pursuant to Rule 14d-2(b) under the Exchange Act. Not later than the twentieth business day prior to the Shareholders Meeting, the Purchaser shall, subject to the provisions of this Agreement, commence the Tender Offer those One Year Escrow Shares reserved for up to 8,250,000 shares together with the associated rights ("Rights") issued pursuant to the Rights Agreement dated as of February 25, 1999 (the "Rights Agreement"), between the Company in any One Year Reserve and American Securities Transfer & Trust, Inc., as Rights Agent those Two Year Escrow Shares reserved for in any Two Year Reserve (collectively, the "Tender SharesEscrowed Securities") at in the name of the Paying Agent for the purpose of tendering such Escrowed Securities in response to a price of $4.00 per Tender Share, net to the seller in cash. The Purchaser shall keep the Permitted Tender Offer open until (as hereinafter defined), provided that the earlier of Escrow Agent receives from the date on which the Company Shareholders' Meeting is held and September 1, 2000 offeror (the "Approval DateOfferor"). The Purchaser shall accept for payment ) under the Permitted Tender Offer either before or concurrently with the registration of the Escrowed Securities in the name of the Paying Agent a certificate of an authorized signing officer of the Offeror to the effect that the terms and conditions of the Permitted Tender Offer have been met or satisfied and that the Offeror is irrevocably obligated to, and will, take up and pay for all securities deposited under the Permitted Tender Shares Offer; provided however, for greater certainty, that have been validly tendered if all the terms and not withdrawn pursuant to conditions of the Permitted Tender Offer promptly following are not met or satisfied or all the Shareholder Approvalsecurities duly deposited thereunder are not taken up and paid for, subject to satisfaction, the Escrowed Securities shall not be taken up or waiver by paid for and shall be re-registered in the Purchaser, name of the conditions set forth in this Agreement and in Annex I Escrow Agent to this Agreement. The obligation of the Purchaser to accept for payment, purchase and pay for Tender Shares tendered pursuant to the offer shall be held subject to the conditions set forth herein terms and in the Offer Documents, including the condition that a minimum provisions of 500,000 Tender Shares shall have been validly tendered and not withdrawn prior to the expiration date of the Tender Offer (the "Minimum Condition")this Escrow Agreement. Solely for For purposes of determining whether the Minimum Condition has been satisfiedthis Escrow Agreement, any shares owned by the Purchaser a "Permitted Tender Offer" shall be deemed to have been validly tendered and not withdrawn pursuant to the Tender Offer. The Purchaser expressly reserves the right to increase the price per share payable in the Tender Offer or to make any other changes in the terms and conditions of the Tender Offer; provided, however, that, unless previously approved by the Company in writing, no change may be made which decreases the price per share payable in the Offer, which changes the form of consideration to be paid in the Tender Offer, which imposes conditions to the Tender Offer in addition to those set forth herein, which broadens the scope of such conditions, which increases the minimum number of Tender Shares which must be tendered as a condition to the acceptance for payment and payment for Tender Shares in the Tender Offer, or which otherwise amends the terms of the Tender Offer in a manner that is materially adverse to holders of shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, extend the Tender Offer if, by the Approval Date, any of the conditions to the Purchaser's obligation to purchase Tender Shares shall not be satisfied until such time as such conditions are satisfied. However, if the Company shall have held the Shareholders Meeting (with a quorum duly present) and a majority of the shareholders present and voting did not vote to approve the Transactions by the Approval Date, the Purchaser shall not extend the Tender Offer. It is agreed that the conditions to the Tender Offer set forth herein and in the Annex I to this Agreement are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants or agreements under this Agreement) or may be waived by the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be made in good faith and shall be final and binding on circumstances where one or more persons or companies (the parties. The Purchaser may"Offeror"), but is not obligated toeach being at arms's length to Manugistics Group, purchase Tender Shares in Inc. makes a bona fide tender offer or merger proposal to acquire all the Tender Offer if the Minimum Condition is not satisfied. However, only consummation shares of the Tender Offer for a number of Tender Shares which satisfies the Minimum Condition (a "Successful Tender Offer") shall result in the exchange of Exchangeable Notes for Convertible Notes and the cancellation of any outstanding Warrants.common

Tender Offer. Subject to satisfaction of Section 2(a) below, the Fund Parties agree to conduct a tender offer by the Fund for 100% of its issued and outstanding ARPS at a price equal to 87% of the $25,000 per share liquidation preference of the ARPS (ai.e., a tender offer of $21,750 per ARPS share), plus one non-transferrable contingent payment right, which represents the contractual right to receive the consideration (if any becomes payable) Provided that this Agreement shall not have been terminated described in the following paragraph, scheduled to expire as of the close of the New York Stock Exchange on February 27, 2015 (such date, as it may be extended in accordance with Article 8, then, not later than the first business day after execution terms of this Agreementthe Tender Offer, the Company shall issue a public announcement of “Expiration Date”), subject only to substantially the execution of this Agreement. At the time of and following such public announcement, both parties shall fully cooperate with each other as necessary to allow the Purchaser to file such communications with the Commission under cover of Schedule TO same conditions as are required to be filed pursuant to Rule 14d-2(b) under set forth in Appendix A hereto (the Exchange Act. Not later than the twentieth business day prior to the Shareholders Meeting“Tender Offer”), the Purchaser shall, subject to the provisions which conditions do not include any minimum level of this Agreement, commence participation in the Tender Offer for up to 8,250,000 shares together with by ARPS holders of the associated rights ("Rights") issued pursuant to the Rights Agreement dated Fund. The Fund hereby agrees that if, as of February 25, 1999 (the "Rights Agreement"), between the Company and American Securities Transfer & Trust, Inc., as Rights Agent (collectively, the "Tender Shares") at a price Expiration Date of $4.00 per Tender Share, net to the seller in cash. The Purchaser shall keep the Tender Offer open until the earlier Offer, all of the date on which the Company Shareholders' Meeting is held and September 1such conditions are satisfied, 2000 (the "Approval Date"). The Purchaser it shall accept for payment and pay for all Tender Shares that have been validly ARPS properly tendered and not withdrawn pursuant to the Tender Offer promptly following the Shareholder Approval, subject to satisfaction, or waiver by the Purchaser, of the conditions set forth in this Agreement and in Annex I to this Agreement. The obligation of the Purchaser to accept for payment, purchase and pay for Tender Shares tendered pursuant to the offer shall be subject to the conditions set forth herein and in the Offer Documents, including the condition that a minimum of 500,000 Tender Shares shall have been validly tendered and not withdrawn prior to the expiration date of the Tender Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any shares owned by the Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Tender Offer. The Purchaser expressly reserves In addition, subject to satisfaction of Section 2(a) below, the right Fund Parties agree that if the Fund completes the Tender Offer and subsequently completes an additional tender offer for its ARPS or a voluntary redemption of its ARPS pursuant to increase Section 11.4(a)(i) of the Fund’s Bylaws (as opposed to and not including a mandatory ARPS redemption pursuant to Section 11.4(a)(ii) of the Fund’s Bylaws) (collectively such an additional ARPS tender offer or voluntary redemption of ARPS being referred to herein as a “Voluntary Redemption”) during the period of three-hundred and sixty-five (365) calendar days beginning with the Expiration Date of the Tender Offer (such 365 calendar day period is referred to herein as the “Subsequent Year”) and such subsequent Voluntary Redemption is for a tender offer or redemption price per ARPS share that is greater than the price per ARPS share payable paid in the Tender Offer or (the amount of such price differential per ARPS share, the “Additional Amount”), the Fund will pay to make Brigade and any other changes ARPS holder who has tendered and received payment for ARPS in the terms and conditions Tender Offer an additional payment equal to (i) the number of ARPS so tendered by such holder in the Tender Offer multiplied by (ii) the Additional Amount. Payment of the Tender Offer; provided, however, that, unless previously approved by the Company in writing, no change may Additional Amount per ARPS share shall be made within thirty (30) days of the event that gave rise to such payment. For purposes of this Agreement, the date upon which decreases the price per share payable Fund “completes” or “completed,” or the “completion of,” a tender offer or redemption for its ARPS means the date upon which the Fund makes payment for all validly tendered ARPS that have been accepted for payment in such tender offer or for all ARPS that have been redeemed pursuant to a redemption. For the Offersake of clarity, the Fund’s Tender Offer shall be deemed “completed” for purposes of this Agreement on the date upon which changes the form of consideration to be paid Fund makes payment for all validly tendered ARPS that have been accepted for payment in the Tender Offer, which imposes conditions and such Tender Offer shall not be integrated with or deemed to continue in the event that the Fund engages in a subsequent Voluntary Redemption and/or is required to make a payment of an Additional Amount with respect to the Tender Offer in addition to those set forth herein, which broadens the scope of such conditions, which increases the minimum number of Tender Shares which must be tendered as a condition pursuant to the acceptance for payment and payment for Tender Shares in immediately preceding paragraph. In this regard, the Subsequent Year (which shall begin on the Expiration Date of the Tender Offer, or which otherwise amends the terms of the Tender Offer in a manner that is materially adverse to holders of shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, extend the Tender Offer if, by the Approval Date, any of the conditions to the Purchaser's obligation to purchase Tender Shares ) shall not be satisfied until such time as such conditions are satisfied. However, if the Company extended for any reason and shall have held the Shareholders Meeting (not relate to or recommence in connection with a quorum duly present) and a majority of the shareholders present and voting did not vote to approve the Transactions subsequent Voluntary Redemption or other tender offer or redemption conducted by the Approval Date, the Purchaser shall not extend the Tender Offer. It is agreed that the conditions to the Tender Offer set forth herein and in the Annex I to this Agreement are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants or agreements under this Agreement) or may be waived by the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be made in good faith and shall be final and binding on the parties. The Purchaser may, but is not obligated to, purchase Tender Shares in the Tender Offer if the Minimum Condition is not satisfied. However, only consummation of the Tender Offer for a number of Tender Shares which satisfies the Minimum Condition (a "Successful Tender Offer") shall result in the exchange of Exchangeable Notes for Convertible Notes and the cancellation of any outstanding WarrantsFund.

Tender Offer. (a) Provided that this Agreement shall not have been terminated Notwithstanding anything to the contrary in accordance with Article 8, then, not later than the first business day after execution of this Agreement, the Company shall issue Confidentiality Agreement or otherwise, after the commencement of a public announcement tender offer or exchange offer by a third party unaffiliated with Parent or Merger Sub that, if successful, would result in any Person or group becoming a beneficial owner of fifty percent (50%) or more of the execution issued and outstanding shares of this Agreement. At Company Common Stock, Parent shall have the time right, in its sole discretion, but not the obligation, to commence, or to cause Merger Sub or another one of and following its affiliates (such public announcement, both parties shall fully cooperate with each other as necessary to allow the Purchaser to file such communications with the Commission under cover of Schedule TO as are required to be filed pursuant to Rule 14d-2(b) under the Exchange Act. Not later than the twentieth business day prior to the Shareholders Meetingentity, the Purchaser shall“Tender Offeror”) to commence, subject to at any time after the provisions date hereof, a cash tender offer for 100% of this Agreement, commence the Tender Offer for up to 8,250,000 shares together with the associated rights ("Rights") issued pursuant to the Rights Agreement dated as of February 25, 1999 (the "Rights Agreement"), between the Company and American Securities Transfer & Trust, Inc., as Rights Agent (collectively, the "Tender Shares") outstanding Shares at a purchase price of $4.00 per Tender Shareshare, net to the seller in cash. The Purchaser shall keep holders thereof, equal or greater to the Merger Consideration (the “Tender Offer”); provided, that if Parent or the Tender Offeror elects to commence a Tender Offer open until (i) it shall be a condition to the earlier obligation of the date on which the Company Shareholders' Meeting is held and September 1, 2000 (the "Approval Date"). The Purchaser shall Tender Offeror to accept for payment and pay for all Tender Shares that have been validly tendered and not withdrawn pursuant to in the Tender Offer promptly that more than 50% of the outstanding Shares be tendered in the Tender Offer (such condition, the “Minimum Condition”), (ii) except for the Minimum Condition, the obligation of the Tender Offeror to accept for payment and pay for Shares tendered in the Tender Offer shall not be materially more conditional than the obligation of Parent and Merger Sub to consummate the Merger, (iii) following the Shareholder Approval, subject to satisfaction, or waiver by the Purchaser, satisfaction of the conditions set forth in Article 4, Parent, Merger Sub and/or the Tender Offeror shall be obligated to consummate (x) the Merger or (y) a merger providing for cash consideration at least equal to the Merger Consideration and which shall otherwise be on terms and conditions no less favorable to the holders of Shares than the Merger, and (iv) the Tender Offer shall comply with all applicable Laws, including the Exchange Act and the rules, regulations and schedules promulgated thereunder. The parties hereto shall (a) negotiate in good faith and as expeditiously as practicable, any and all amendments, modifications or waivers of this Agreement and in Annex I the Confidentiality Agreement necessary or appropriate to this Agreement. The obligation of the Purchaser allow Parent or Tender Offeror to accept for payment, purchase and pay for Tender Shares tendered pursuant to the offer shall be subject to the conditions set forth herein and in the Offer Documents, including the condition that a minimum of 500,000 Tender Shares shall have been validly tendered and not withdrawn prior to the expiration date of the Tender Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any shares owned by the Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to implement the Tender Offer. The Purchaser expressly reserves the right to increase the price per share payable in the Tender Offer or to , (b) make any other changes and all amendments or modifications to the Proxy Statement or any Other Filings, (c) make any and all filings with or submissions to (and/or make any and all amendments or modifications to existing filings or submissions), and seek any and all consents, authorizations and permits from, any Governmental Entity necessary or appropriate in the terms and conditions light of the Tender Offer; provided, howeverand (d) otherwise use commercially reasonable efforts to implement the provisions of this Section 8.15 and to ensure the Merger and the Tender Offer comply with all applicable Law and are consummated. For avoidance of doubt, thatto the extent requested by Parent or the Tender Offeror, unless previously approved by the Company in writing, no change may be made which decreases acknowledges that the price per share payable representations and warranties set forth in the Offer, which changes the form last sentence of consideration to be paid in the Tender Offer, which imposes conditions Section 3.3(b) apply to the Tender Offer described in addition to those set forth herein, which broadens the scope of such conditions, which increases the minimum number of Tender Shares which must be tendered as a condition to the acceptance for payment and payment for Tender Shares in the Tender Offer, or which otherwise amends the terms of the Tender Offer in a manner that is materially adverse to holders of shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, extend the Tender Offer if, by the Approval Date, any of the conditions to the Purchaser's obligation to purchase Tender Shares shall not be satisfied until such time as such conditions are satisfied. However, if the Company shall have held the Shareholders Meeting (with a quorum duly present) and a majority of the shareholders present and voting did not vote to approve the Transactions by the Approval Date, the Purchaser shall not extend the Tender Offer. It is agreed that the conditions to the Tender Offer set forth herein and in the Annex I to this Agreement are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants or agreements under this Agreement) or may be waived by the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be made in good faith and shall be final and binding on the parties. The Purchaser may, but is not obligated to, purchase Tender Shares in the Tender Offer if the Minimum Condition is not satisfied. However, only consummation of the Tender Offer for a number of Tender Shares which satisfies the Minimum Condition (a "Successful Tender Offer") shall result in the exchange of Exchangeable Notes for Convertible Notes and the cancellation of any outstanding WarrantsSection 8.15.

Tender Offer. (a) Provided that this Agreement shall not have been terminated Notwithstanding anything to the contrary in accordance with Article 8, then, not later than the first business day after execution of this Agreement, the Company shall issue a public announcement Confidentiality Agreement or otherwise, in the event that Parent determines, in its reasonable, good faith judgment that doing so will increase the likelihood of the execution consummation of this Agreement. At the time transactions contemplated hereby, Parent shall have the right to commence, or to cause Merger Sub or another one of and following its affiliates (such public announcement, both parties shall fully cooperate with each other as necessary to allow the Purchaser to file such communications with the Commission under cover of Schedule TO as are required to be filed pursuant to Rule 14d-2(b) under the Exchange Act. Not later than the twentieth business day prior to the Shareholders Meeting, the Purchaser shall, subject to the provisions of this Agreement, commence the Tender Offer for up to 8,250,000 shares together with the associated rights ("Rights") issued pursuant to the Rights Agreement dated as of February 25, 1999 (the "Rights Agreement"), between the Company and American Securities Transfer & Trust, Inc., as Rights Agent (collectivelyentity, the "Tender SharesOfferor") to commence, at any time after the date hereof, a cash tender offer for any and all of the issued and outstanding shares of the Company Common Stock at a purchase price of $4.00 per Tender Shareshare, net to the seller in cash. The Purchaser holders thereof, equal to the Merger Consideration, provided, that (i) it shall keep be a condition to the obligation of the Tender Offer open until the earlier of the date on which the Company Shareholders' Meeting is held and September 1, 2000 (the "Approval Date"). The Purchaser shall Offeror to accept for payment and pay for all Tender Shares that have been validly shares of Company Common Stock tendered and not withdrawn pursuant to the Tender Offer promptly following the Shareholder Approval, subject to satisfaction, or waiver by the Purchaser, of the conditions set forth in this Agreement and in Annex I to this Agreement. The obligation of the Purchaser to accept for payment, purchase and pay for Tender Shares tendered pursuant to the offer shall be subject to the conditions set forth herein and in the Offer Documents, including the condition tender offer that a minimum of 500,000 Tender Shares there shall have been validly tendered and not withdrawn prior to the expiration date of the Tender Offer tender offer that number of shares of Company Common Stock which, when added to any shares of Company Common Stock owned by Parent and Merger Sub, represents 90% or greater of the issued and outstanding shares of Company Common Stock (such condition, the "Minimum Condition"). Solely , (ii) except for purposes of determining whether the Minimum Condition has been satisfiedCondition, any the obligation of the Tender Offeror to accept for payment and pay for shares owned by of Company Common Stock tendered in the Purchaser tender offer shall not be more conditional than the obligation of Parent and Merger Sub to consummate the Merger, (iii) Parent, Merger Sub and/or the Tender Offeror shall be deemed obligated to have been validly tendered and not withdrawn pursuant consummate (x) the Merger or (y) a merger providing for cash consideration at least equal to the Tender Offer. The Purchaser expressly reserves the right to increase the price per share payable in the Tender Offer or to make any other changes in the Merger Consideration and which shall otherwise be on terms and conditions no less favorable to the holders of shares of Company Common Stock than the Merger, (iv) the tender offer shall comply with all applicable laws, including the Exchange Act, Sections 14(d) and 14(e) thereof and the rules, regulations and schedules promulgated thereunder, and (v) the Tender Offeror shall not be required to accept for payment or pay for any validly tendered shares if, at the expiration date of the Tender Offertender offer the conditions set forth in Section 6.1 (other than Section 6.1(a)) and Section 6.2 of this Agreement shall not have been satisfied or waived. The expiration date of the tender offer shall not be earlier than 60 calendar days after the date hereof; provided, however, thatthat if a Third Party commences a tender offer for 50% of more of the outstanding shares of Company Common Stock, unless previously approved the tender offer by the Tender Offeror may expire one (1) Business Day prior to the initial expiration date of such other tender offer. The parties hereto shall (a) negotiate in good faith and as expeditiously as practicable any and all amendments, modifications or waivers of this Agreement and the Confidentiality Agreement necessary or appropriate to implement this Section 5.16, (b) make any and all amendments or modifications to the Proxy Statement, (c) make any and all filings with or submissions to (and/or make any and all amendments or modifications to existing filings or submissions), and seek any and all consents, authorizations and permits from, any Governmental Entity necessary or appropriate in light of the tender offer, including under any Antitrust Law, other applicable law or otherwise, and (d) otherwise take any and all actions necessary or appropriate to implement this Section 5.16 and to ensure the Merger and the tender offer comply with all applicable laws and are consummated. For avoidance of doubt, the Company acknowledges that the representations and warranties set forth in writing, no change may be made which decreases Sections 3.1(v) and 3.1(y) apply to the price per share payable tender offer described in this Section 5.16. In the event that the Tender Offeror shall acquire in the Offeraggregate a number of the outstanding shares of Company Common Stock, which changes the form of consideration to be paid in the Tender Offer, which imposes conditions pursuant to the Tender Offer in addition tender offer or otherwise, sufficient to those set forth hereinenable Parent, which broadens Merger Sub or the scope of such conditions, which increases Company to cause the minimum number of Tender Shares which must be tendered as a condition Merger to the acceptance for payment and payment for Tender Shares in the Tender Offer, or which otherwise amends the terms become effective pursuant to Section 253 of the Tender Offer in DGCL without a manner that is materially adverse to holders meeting of shares. Notwithstanding the foregoing, the Purchaser may, without the consent stockholders of the Company, extend Parent shall take all necessary and appropriate action to cause the Tender Offer ifMerger to become effective pursuant to Section 253 of the DGCL as soon as practicable after such acquisition, by without a meeting of stockholders of the Approval DateCompany, in accordance with and subject to the DGCL. For avoidance of doubt, in such event consummation of the Merger shall not be subject to any of the conditions set forth in Article VI hereof. Parent shall amend or alter the Debt Commitment Letter or enter into new debt commitment letter(s) that would enable the Tender Offeror to finance the tender offer and the Merger in order to effect the tender offer in accordance with the provisions in this Section 5.16; provided that any such financing shall be on terms no less favorable in the aggregate to Parent or Merger Sub than those included in such Debt Commitment Letter and reasonably satisfactory to the Purchaser's obligation to purchase Tender Shares shall not be satisfied until such time as such conditions are satisfied. However, if the Company shall have held the Shareholders Meeting (with a quorum duly present) and a majority of the shareholders present and voting did not vote to approve the Transactions by the Approval Date, the Purchaser shall not extend the Tender Offer. It is agreed that the conditions to the Tender Offer set forth herein and in the Annex I to this Agreement are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants or agreements under this Agreement) or may be waived by the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be made in good faith and shall be final and binding on the parties. The Purchaser may, but is not obligated to, purchase Tender Shares in the Tender Offer if the Minimum Condition is not satisfied. However, only consummation of the Tender Offer for a number of Tender Shares which satisfies the Minimum Condition (a "Successful Tender Offer") shall result in the exchange of Exchangeable Notes for Convertible Notes and the cancellation of any outstanding WarrantsCompany.

Tender Offer. (a) Provided that this Agreement Agree- ------------ ment shall not have been terminated in accordance with Article 8, then, not later than the first business day after execution of this Agreement, the Company shall issue a public announcement IX hereof and none of the execution events set forth in Annex A hereto shall have occurred or be existing, within five business days of this Agreement. At the time of and following such public announcementdate hereof, both parties shall fully cooperate with each other as necessary to allow the Purchaser to file such communications with the Commission under cover of Schedule TO as are required to be filed pursuant to Rule 14d-2(b) under the Exchange Act. Not later than the twentieth business day prior to the Shareholders Meeting, the Purchaser shall, subject to the provisions of this Agreement, commence the Tender Offer for up to 8,250,000 shares together with the associated rights ("Rights") issued pursuant to the Rights Agreement dated as of February 25, 1999 Merger Sub will com- mence a tender offer (the "Rights Agreement"), between the Company and American Securities Transfer & Trust, Inc., as Rights Agent (collectively, the "Tender SharesOffer") for all of the outstanding Shares that neither it nor Purchaser currently directly or indirectly owns at a price of $4.00 15.25 per Tender ShareShare in cash, net to the seller in cash. The Purchaser shall keep the Tender Offer open until the earlier of the date on which the Company Shareholders' Meeting is held and September 1seller, 2000 (the "Approval Date"). The Purchaser shall accept for payment and pay for all Tender Shares that have been validly tendered and not withdrawn pursuant to the Tender Offer promptly following the Shareholder Approval, subject to satisfaction, or waiver by the Purchaser, of the conditions set forth in this Agreement and in Annex I to this Agreement. The obligation of the Purchaser to accept for payment, purchase and pay for Tender Shares tendered pursuant to the offer shall be subject to the conditions set forth herein and in the Offer Documents, including the condition that a minimum of 500,000 Tender Shares shall have been validly tendered and not withdrawn prior Annex A hereto. Subject to the expiration date of the Tender Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any shares owned by the Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Tender Offer. The Purchaser expressly reserves the right to increase the price per share payable in the Tender Offer or to make any other changes in the terms and conditions of the Tender Offer, Merger Sub will promptly pay for all Shares duly tendered that it is obligated to purchase thereunder. The Company's Board of Directors and a majority of the Company's Independent Directors (as defined below) shall recommend acceptance of the Offer to its stockholders in a Solicitation/Recommendation Statement on Schedule 14D-9 (as such statement may be amended or supplemented from time to time, the "Schedule 14D-9") to be filed with the Securities and Exchange Commission (the "SEC") upon commencement of the Offer; provided, however, thatthat if the -------- ------- Company's Board of Directors determines that its fiduciary duties require it to amend or withdraw its recommendation, unless previously approved by such amendment or withdrawal shall not constitute a breach of this Agreement. Merger Sub will not without the prior written consent of the Company in writing, no change may be made which decreases decrease the price per share Share or change the form of consideration payable in the Offer, which changes decrease the form of consideration to be paid in the Tender Offer, which imposes conditions to the Tender Offer in addition to those set forth herein, which broadens the scope of such conditions, which increases the minimum number of Tender Shares which must be tendered as a condition to the acceptance for payment and payment for Tender Shares in the Tender Offer, sought or which otherwise amends the terms of the Tender Offer in a manner that is materially adverse to holders of shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, extend the Tender Offer if, by the Approval Date, any of change the conditions to the Purchaser's obligation to purchase Tender Shares Offer. Merger Sub shall not be satisfied until such time as such conditions are satisfied. However, if terminate or withdraw the Company shall have held Offer or extend the Shareholders Meeting (with a quorum duly present) and a majority expiration date of the shareholders present and voting did not vote to approve Offer unless at the Transactions by expiration date of the Approval Date, the Purchaser shall not extend the Tender Offer. It is agreed that Offer the conditions to the Tender Offer set forth herein and in the on Annex I to this Agreement are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants or agreements under this Agreement) or may be waived by the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Purchaser at any time to exercise any of the foregoing rights A hereto shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be made in good faith and shall be final and binding on the parties. The Purchaser may, but is not obligated to, purchase Tender Shares in the Tender Offer if the Minimum Condition is not satisfied. However, only consummation of the Tender Offer for a number of Tender Shares which satisfies the Minimum Condition (a "Successful Tender Offer") shall result in the exchange of Exchangeable Notes for Convertible Notes and the cancellation of any outstanding Warrantshave been satisfied or waived.

Tender Offer. (a) Provided Prior to the Closing Date, Parent will provide the holders of the 6,000,000 shares of common stock sold in Parent’s initial public offering its stockholders (the “Offering Shares”) with the opportunity to redeem their Parent Shares in cash for a price per share equal to the quotient obtained by dividing (i) the aggregate amount on deposit in the Trust Account as of two business days prior to the date of the commencement of such tender offer, plus interest accrued from and after such date until two business days prior to the Closing, less franchise and income taxes payable and less any interest that this Agreement shall not have been terminated Parent may withdraw in accordance with Article 8the terms of the trust agreement governing the use of the Trust Account for working capital requirements, then, not later than by (ii) the first business day after execution total number of this Agreement, then outstanding Offering Shares (the “Tender Offer”). Unless otherwise agreed to by the Company and Parent, Parent shall issue use its commercially reasonably efforts (subject to market conditions) to conduct the Tender Offer without a public announcement of the execution of this Agreement. At the time of and following such public announcement, both parties shall fully cooperate with each other as necessary to allow the Purchaser to file such communications with the Commission under cover of Schedule TO as are required to be filed stockholder vote pursuant to Rule 14d-2(b) under 13e-4 and Regulation 14E of the Exchange Act. Not later than Act (as modified, waived or otherwise agreed to with the twentieth business day prior to SEC) which regulates issuer tender offers and compliance with the Shareholders Meetingrequirement of Article IX of its charter, the Purchaser shall, subject to the provisions of this Agreement, commence the and will file Tender Offer for up to 8,250,000 shares together documents with the associated rights ("Rights") issued pursuant to the Rights Agreement dated as of February 25, 1999 (the "Rights Agreement"), between the Company and American Securities Transfer & Trust, Inc., as Rights Agent (collectively, the "Tender Shares") at a price of $4.00 per Tender Share, net to the seller in cashSEC. The Purchaser shall keep the Tender Offer open until documents will comply as to form in all material respects with the earlier requirements of the date on Exchange Act and the rules and regulations promulgated thereunder and in addition shall contain substantially the same financial and other information about the transactions contemplated hereby and the redemption rights as is required under Regulation 14A of the Exchange Act which regulates the Company Shareholders' Meeting is held and September 1, 2000 (the "Approval Date")solicitation of proxies. The Purchaser shall obligation of Parent to accept for payment and pay for all Tender shares Parent Shares that have been validly tendered and not validly withdrawn pursuant to the Tender Offer promptly following the Shareholder Approval, subject to satisfaction, or waiver by the Purchaser, of the conditions set forth in this Agreement and in Annex I to this Agreement. The obligation of the Purchaser to accept for payment, purchase and pay for Tender Shares tendered pursuant to the offer shall be subject to the conditions set forth herein and in the Offer Documents, including (i) the condition (the “Maximum Tender Condition”) that no more than a minimum number of 500,000 Tender Parent Shares equal to ninety-two percent (92%) of the IPO Shares (as defined in Parent’s certificate of incorporation as amended) shall have been validly tendered and not validly withdrawn pursuant to and prior to the expiration date of the Tender Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any shares owned by the Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Tender Offer. The Purchaser expressly reserves the right to increase the price per share payable in the Tender Offer or to make any other changes in the terms and conditions of the Tender Offer; provided, however, that, unless previously approved by and (ii) the Company in writing, no change may be made which decreases satisfaction of each of the price per share payable in the Offer, which changes the form of consideration to be paid in the Tender Offer, which imposes other conditions to the Tender Offer in addition to those set forth herein, which broadens the scope of such conditions, which increases the minimum number of Tender Shares which must be tendered as a condition to the acceptance for payment and payment for Tender Shares in the Tender Offer, or which otherwise amends the terms of the Tender Offer in a manner that is materially adverse to holders of sharesAnnex A hereto. Notwithstanding the foregoing, the Purchaser Parent may, without the consent of the Company, (i) extend the Tender Offer iffor one or more period(s) beyond the scheduled expiration date, by which initially shall be no earlier than 20 business days following the Approval Date, any commencement of the conditions to the Purchaser's obligation to purchase Tender Shares shall not be satisfied until such time as such conditions are satisfied. However, if the Company shall have held the Shareholders Meeting (with a quorum duly present) and a majority of the shareholders present and voting did not vote to approve the Transactions by the Approval Date, the Purchaser shall not extend the Tender Offer. It is agreed that , if, at any scheduled expiration of the Tender Offer, the Maximum Tender Condition and/or the conditions to the Tender Offer set forth herein and in the Annex I to this Agreement are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to any such condition A, have not been satisfied or waived, or (including any action ii) extend or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants or agreements under this Agreement) or may be waived by the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be made in good faith and shall be final and binding on the parties. The Purchaser may, but is not obligated to, purchase Tender Shares in the Tender Offer if the Minimum Condition is not satisfied. However, only consummation of amend the Tender Offer for a number any period (such expiration date as extended, the “Expiration Date”) required by any rule, regulation or interpretation of Tender Shares which satisfies the Minimum Condition (a "Successful SEC, or the staff thereof, applicable to the Tender Offer") shall result in the exchange of Exchangeable Notes for Convertible Notes and the cancellation of any outstanding Warrants.

Tender Offer. (a) Provided that this Agreement shall not have been terminated Notwithstanding anything to the contrary in accordance with Article 8, then, not later than the first business day after execution of this Agreement, the Company shall issue a public announcement Confidentiality Agreement or otherwise, in the event that Parent determines, in its reasonable, good faith judgment that doing so will increase the likelihood of the execution consummation of this Agreement. At the time transactions contemplated hereby, Parent shall have the right to commence, or to cause Merger Sub or another one of and following its affiliates (such public announcement, both parties shall fully cooperate with each other as necessary to allow the Purchaser to file such communications with the Commission under cover of Schedule TO as are required to be filed pursuant to Rule 14d-2(b) under the Exchange Act. Not later than the twentieth business day prior to the Shareholders Meeting, the Purchaser shall, subject to the provisions of this Agreement, commence the Tender Offer for up to 8,250,000 shares together with the associated rights ("Rights") issued pursuant to the Rights Agreement dated as of February 25, 1999 (the "Rights Agreement"), between the Company and American Securities Transfer & Trust, Inc., as Rights Agent (collectivelyentity, the "Tender SharesOfferor") to commence, at any time after the date hereof, a cash tender offer for any and all of the issued and outstanding shares of the Company Common Stock at a purchase price of $4.00 per Tender Shareshare, net to the seller in cash. The Purchaser holders thereof, equal to the Merger Consideration, provided, that (i) it shall keep be a condition to the obligation of the Tender Offer open until the earlier of the date on which the Company Shareholders' Meeting is held and September 1, 2000 (the "Approval Date"). The Purchaser shall Offeror to accept for payment and pay for all Tender Shares that have been validly shares of Company Common Stock tendered and not withdrawn pursuant to the Tender Offer promptly following the Shareholder Approval, subject to satisfaction, or waiver by the Purchaser, of the conditions set forth in this Agreement and in Annex I to this Agreement. The obligation of the Purchaser to accept for payment, purchase and pay for Tender Shares tendered pursuant to the offer shall be subject to the conditions set forth herein and in the Offer Documents, including the condition tender offer that a minimum of 500,000 Tender Shares there shall have been validly tendered and not withdrawn prior to the expiration date of the Tender Offer tender offer that number of shares of Company Common Stock which, when added to any shares of Company Common Stock owned by Parent and Merger Sub, represents 90% or greater of the issued and outstanding shares of Company Common Stock (such condition, the "Minimum Condition"). Solely , (ii) except for purposes of determining whether the Minimum Condition has been satisfiedCondition, any the obligation of the Tender Offeror to accept for payment and pay for shares owned by of Company Common Stock tendered in the Purchaser tender offer shall not be more conditional than the obligation of Parent and Merger Sub to consummate the Merger, (iii) Parent, Merger Sub and/or the Tender Offeror shall be deemed obligated to have been validly tendered and not withdrawn pursuant consummate (x) the Merger or (y) a merger providing for cash consideration at least equal to the Tender Offer. The Purchaser expressly reserves the right to increase the price per share payable in the Tender Offer or to make any other changes in the Merger Consideration and which shall otherwise be on terms and conditions no less favorable to the holders of shares of Company Common Stock than the Merger, (iv) the tender offer shall comply with all applicable laws, including the Exchange Act, Sections 14(d) and 14(e) thereof and the rules, regulations and schedules promulgated thereunder, and (v) the Tender Offeror shall not be required to accept for payment or pay for any validly tendered shares if, at the expiration date of the Tender Offertender offer the conditions set forth in Section 6.1 (other than Section 6.1(a)) and Section 6.2 of this Agreement shall not have been satisfied or waived. The expiration date of the tender offer shall not be earlier than 60 calendar days after the date hereof; provided, however, thatthat if a Third Party commences a tender offer for 50% of more of the outstanding shares of Company Common Stock, unless previously approved the tender offer by the Company in writing, no change Tender Offeror may be made which decreases the price per share payable in the Offer, which changes the form of consideration to be paid in the Tender Offer, which imposes conditions expire one (1) Business Day prior to the Tender Offer in addition to those set forth herein, which broadens the scope initial expiration date of such conditions, which increases the minimum number of Tender Shares which must be tendered as a condition to the acceptance for payment and payment for Tender Shares in the Tender Offer, or which otherwise amends the terms of the Tender Offer in a manner that is materially adverse to holders of shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, extend the Tender Offer if, by the Approval Date, any of the conditions to the Purchaser's obligation to purchase Tender Shares shall not be satisfied until such time as such conditions are satisfied. However, if the Company shall have held the Shareholders Meeting (with a quorum duly present) and a majority of the shareholders present and voting did not vote to approve the Transactions by the Approval Date, the Purchaser shall not extend the Tender Offer. It is agreed that the conditions to the Tender Offer set forth herein and in the Annex I to this Agreement are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants or agreements under this Agreement) or may be waived by the Purchaser, in whole or in part at any time and from time to time, in its sole discretionother tender offer. The failure by the Purchaser at any time to exercise any of the foregoing rights parties hereto shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditionsa) shall be made negotiate in good faith and shall be final as expeditiously as practicable any and binding on all amendments, modifications or waivers of this Agreement and the parties. The Purchaser mayConfidentiality Agreement necessary or appropriate to implement this Section 5.16, but is not obligated to(b) make any and all amendments or modifications to the Proxy Statement, purchase Tender Shares (c) make any and all filings with or submissions to (and/or make any and all amendments or modifications to existing filings or submissions), and seek any and all consents, authorizations and permits from, any Governmental Entity necessary or appropriate in the Tender Offer if the Minimum Condition is not satisfied. However, only consummation light of the Tender Offer for a number of Tender Shares which satisfies tender offer, including under any Antitrust Law, other applicable law or otherwise, and (d) otherwise take any and all actions necessary or appropriate to implement this Section 5.16 and to ensure the Minimum Condition (a "Successful Tender Offer") shall result in the exchange of Exchangeable Notes for Convertible Notes Merger and the cancellation tender offer comply with all applicable laws and are consummated. For avoidance of any outstanding Warrants.doubt, the Company acknowledges that the representations and warranties set forth in Sections 3.1(v) and 3.1(y) apply to the tender offer described in this

Tender Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article 8IX hereof and none of the events set forth in Annex A hereto shall have occurred or be existing, then, not later than within five business days after the first business day after execution of this Agreement, the Company shall issue a public announcement of the execution of this Agreement. At the time of and following such public announcement, both parties shall fully cooperate with each other as necessary to allow the Purchaser to file such communications with the Commission under cover of Schedule TO as are required to be filed pursuant to Rule 14d-2(b) under the Exchange Act. Not later than the twentieth business day prior to the Shareholders Meeting, the Purchaser shall, subject to the provisions of this Agreement, Sub will commence the Tender Offer for up to 8,250,000 shares together with the associated rights ("Rights") issued pursuant to the Rights Agreement dated as of February 25, 1999 a tender offer (the "Rights AgreementOffer") for all of the outstanding shares of common stock, par value $0.001 per share (the "Shares"), between of the Company and American Securities Transfer & Trust, Inc., as Rights Agent (collectively, the "Tender Shares") at a price of $4.00 16.00 per Tender ShareShare in cash, net to the seller in cashseller, which Offer shall have an initial expiration date not later than twenty (20) business days after the commencement of the Offer. The obligation of Purchaser shall keep the Tender Offer open until the earlier of the date on which the Company Shareholders' Meeting is held and September 1, 2000 (the "Approval Date"). The Purchaser shall Sub to accept for payment and pay for all Tender Shares that have been validly tendered and not withdrawn pursuant to the Tender Offer promptly following the Shareholder Approval, subject to satisfaction, or waiver by the Purchaser, of the conditions set forth in this Agreement and in Annex I to this Agreement. The obligation of the Purchaser to accept for payment, purchase and pay for Tender Shares tendered pursuant to the offer Offer shall be subject only to the satisfaction or waiver of the conditions to the Offer set forth in Annex A hereto. It is agreed that the Minimum Condition (as defined in Annex A) and the other conditions set forth herein in Annex A hereto are for the sole benefit of Purchaser Sub and in may be asserted by Purchaser Sub regardless of the Offer Documentscircumstances giving rise to any such condition unless the Purchaser, including the condition that a minimum of 500,000 Tender Shares Purchaser Sub or their Affiliates shall have been validly tendered and not withdrawn prior caused the circumstances giving 2 rise to the expiration date of the Tender Offer (the "Minimum Condition")such condition. Solely for purposes of determining whether the Minimum Condition has been satisfied, any shares owned by the Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Tender Offer. The Purchaser Sub expressly reserves the right in its sole discretion to waive, in whole or in part, at any time or from time to time, any such condition (other than the Minimum Condition, which may not be waived without the prior written consent of the Company), to increase the price per share Share payable in the Tender Offer or to make any other changes in the terms and conditions of the Tender Offer; provided, however, provided that, unless previously approved by the Company in writing, no change may be made which that decreases the price per share Share payable in the Offer, which reduces the Minimum Condition, changes the form of consideration payable in the Offer, reduces the maximum number of Shares to be paid purchased in the Tender Offer, which imposes conditions to the Tender Offer in addition to those set forth herein, which broadens the scope of in Annex A hereto or amends or modifies such conditions, which increases the minimum number of Tender Shares which must be tendered as a condition conditions in any manner adverse to the acceptance holders of Shares. Purchaser Sub covenants and agrees that, subject to the conditions of the Offer set forth in Annex A hereto, Purchaser Sub shall accept for payment and payment pay for Tender Shares in that have been validly tendered and not withdrawn pursuant to the Tender OfferOffer as soon as it is permitted to do so under applicable law; provided that, or which otherwise amends if the terms number of Shares that have been validly tendered and not withdrawn represent less than 90% of the Tender Offer in Shares outstanding on a manner that is materially adverse to holders of shares. Notwithstanding the foregoingfully diluted basis, the Purchaser may, without the consent of the Company, Sub may extend the Tender Offer if, by up to the Approval Date, any of fifth business day following the date on which all conditions to the Purchaser's obligation to purchase Tender Shares Offer shall not be first have been satisfied until such time as such conditions are satisfied. However, if the Company shall have held the Shareholders Meeting (with a quorum duly present) and a majority of the shareholders present and voting did not vote to approve the Transactions by the Approval Date, the Purchaser shall not extend the Tender Offer. It is agreed that the conditions to the Tender Offer set forth herein and in the Annex I to this Agreement are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants or agreements under this Agreement) or may be waived by the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be made in good faith and shall be final and binding on the parties. The Purchaser may, but is not obligated to, purchase Tender Shares in the Tender Offer if the Minimum Condition is not satisfied. However, only consummation of the Tender Offer for a number of Tender Shares which satisfies the Minimum Condition (a "Successful Tender Offer") shall result in the exchange of Exchangeable Notes for Convertible Notes and the cancellation of any outstanding Warrantswaived.

Tender Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article 8, then, not later than the first business day after execution of this Agreement, the Company shall issue a public announcement IX hereof and none of the execution events set forth in Annex A hereto (the "Offer Conditions") shall have occurred or be existing, within five business days of this Agreement. At the time date hereof, Merger Sub will commence a tender offer (the "Offer") for all of and following such public announcementthe outstanding shares of common stock, both parties shall fully cooperate with each other as necessary to allow no par value (the Purchaser to file such communications with "Shares"), of the Commission under cover of Schedule TO as are required to be filed pursuant to Rule 14d-2(b) under the Exchange Act. Not later than the twentieth business day prior to the Shareholders MeetingCompany, the Purchaser shall, subject to the provisions of this Agreement, commence the Tender Offer for up to 8,250,000 shares together with the associated rights to purchase (the "Rights") issued pursuant to Series A Junior Participating Preferred Stock, no par value, of the Rights Agreement dated as of February 25, 1999 Company (the "Rights Agreement"), between the Company and American Securities Transfer & Trust, Inc., as Rights Agent (collectively, the "Tender SharesSeries A Preferred") at a price of $4.00 18.50 per Tender ShareShare in cash, net to the seller in cashseller. The Purchaser shall keep the Tender Offer open until the earlier initial expiration date of the date on which the Company Shareholders' Meeting is held and September 1, 2000 Offer (the "Approval Initial Expiration Date") shall be the twentieth business day from and after the date the Offer is commenced. Subject to Section 1.1(d). The Purchaser shall , the obligation of Merger Sub to accept for payment and pay for all Tender Shares that have been validly tendered and not withdrawn pursuant to the Tender Offer promptly following the Shareholder Approval, subject to satisfaction, or waiver by the Purchaser, of the conditions set forth in this Agreement and in Annex I to this Agreement. The obligation of the Purchaser to accept for payment, purchase and pay for Tender any Shares tendered pursuant to the offer Offer shall be subject only to the conditions set forth herein and satisfaction or waiver of the Offer Conditions. Merger Sub will not, without the prior written consent of the Company (such consent to be authorized by the Board of Directors of the Company) (i) waive the Minimum Condition (as defined in Annex A), except pursuant to Section 1.1(d), (ii) decrease the price per Share or change the form of consideration payable in the Offer, (iii) decrease the number of Shares sought in the Offer, except pursuant to Section 1.1(d), (iv) impose additional conditions to the Offer, (v) change any Offer DocumentsCondition or amend any other term of the Offer if any such change or amendment would be in any manner adverse to the holders of Shares or (vi) except as provided below, including extend the condition that a minimum Offer if all of 500,000 Tender Shares shall the Offer Conditions have been validly tendered satisfied; provided, however, and not withdrawn prior notwithstanding anything herein to the contrary, it is understood and agreed that Merger Sub may (a) extend the expiration date of the Tender Offer after all of the Offer Conditions (other than the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any shares owned by the Purchaser shall be deemed to ) have been validly tendered and not withdrawn pursuant satisfied or waived as of any scheduled expiration date of the Offer if it reasonably determines such extension is appropriate in order to the Tender Offer. The Purchaser expressly reserves the right enable it to increase the price per share payable purchase in the Tender Offer or to make any other changes in at least the terms and conditions of the Tender Offer; provided, however, that, unless previously approved by the Company in writing, no change may be made which decreases the price per share payable in the Offer, which changes the form of consideration to be paid in the Tender Offer, which imposes conditions to the Tender Offer in addition to those set forth herein, which broadens the scope of such conditions, which increases the minimum number of Tender Shares which must be tendered as a condition equal to the acceptance for payment and payment for Tender Shares in the Tender Offer, or which otherwise amends the terms of the Tender Offer in a manner that is materially adverse to holders of shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, extend the Tender Offer if, by the Approval Date, any of the conditions to the Purchaser's obligation to purchase Tender Shares shall not be satisfied until such time as such conditions are satisfied. However, if the Company shall have held the Shareholders Meeting (with a quorum duly present) and a majority of the shareholders present and voting did not vote to approve the Transactions by the Approval Date, the Purchaser shall not extend the Tender Offer. It is agreed that the conditions to the Tender Offer set forth herein and in the Annex I to this Agreement are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants or agreements under this Agreement) or may be waived by the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be made in good faith and shall be final and binding on the parties. The Purchaser may, but is not obligated to, purchase Tender Shares in the Tender Offer if the Minimum Condition is not satisfied. However, only consummation of the Tender Offer for a number of Tender Shares which satisfies the Minimum Condition (in which case Merger Sub may extend the expiration date on one or more occasions to a date and time not later than 12:00 midnight, New York City time, on the tenth business day following such scheduled expiration date (such time on such tenth business day, the "Successful Tender OfferEarly Date")) shall result or (b) waive the Minimum Condition and exercise its rights under Section 1.1(d), if applicable. Parent and Merger Sub further agree that: (A) in the exchange event of Exchangeable Notes for Convertible Notes and the cancellation of any outstanding Warrants.the

Tender Offer. (a) Provided that this Agreement shall not have been terminated As promptly as reasonably practicable after the date hereof, but in accordance with Article 8, then, not no event later than five business days after the first business day after execution of this Agreement, the Company shall issue a public announcement of the execution of this Agreement. At the time of and following such public announcement, both parties shall fully cooperate with each other as necessary to allow the Purchaser to file such communications with the Commission under cover of Schedule TO as are required to be filed pursuant to Rule 14d-2(b) under the Exchange Act. Not later than the twentieth business day prior to the Shareholders Meeting, the Purchaser shall, subject to the provisions of this Agreement, or Merger Sub will commence the Tender Offer for up to 8,250,000 shares together with all of the associated rights ("Rights") issued pursuant to the Rights Agreement dated as of February 25, 1999 (the "Rights Agreement"), between the Company and American Securities Transfer & Trust, Inc., as Rights Agent (collectively, the "Tender Shares") outstanding Shares at a price of not less than $4.00 15.50 per Tender ShareShare in cash, net to the seller in cash. The Purchaser shall keep the Tender Offer open until the earlier of the date on which the Company Shareholders' Meeting is held and September 1seller, 2000 (the "Approval Date"). The Purchaser shall accept for payment and pay for all Tender Shares that have been validly tendered and not withdrawn pursuant to the Tender Offer promptly following the Shareholder Approval, subject to satisfaction, or waiver by the Purchaser, of the conditions set forth in this Agreement and in Annex I to this Agreement. The obligation of the Purchaser to accept for payment, purchase and pay for Tender Shares tendered pursuant to the offer shall be subject to the conditions set forth herein in Exhibit A, and, subject only to the terms and in conditions of the Offer DocumentsOffer, including will pay, as promptly as reasonably practicable after expiration of the condition that a minimum of 500,000 Tender Offer, for all Shares shall have been validly duly tendered and not withdrawn prior to the expiration date of the Tender Offer (the "Minimum Condition")withdrawn. Solely for purposes of determining whether the Minimum Condition has been satisfied, any shares owned by the Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Tender Offer. The Purchaser expressly reserves the right to waive any such condition, to increase the price per share Share payable in the Tender Offer or Offer, and to make any other changes in the terms and conditions of the Tender Offer; provided, however, that, unless previously approved by the Company in writing, that no change may be made which decreases the price per share Share payable in the Offer, which changes reduces the form maximum number of consideration Shares to be paid purchased in the Tender Offer, which imposes conditions to the Tender Offer in addition to other than those set forth herein, in Exhibit A hereto or which broadens extends the scope of such conditions, which increases the minimum number of Tender Shares which must be tendered Offer (except as a condition to the acceptance for payment and payment for Tender Shares set forth in the Tender Offer, or which otherwise amends the terms of the Tender Offer in a manner that is materially adverse to holders of sharesfollowing sentence). Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Tender Offer beyond the scheduled expiration date (the initial scheduled expiration date being 20 business days following the commencement of the Offer) if, by at the Approval Datescheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Tender Shares accept for payment, and to pay for, the Shares, shall not be satisfied until such time as such conditions are satisfied. Howeveror waived, (ii) extend the Offer for any period required by any rule, regulation or interpretation of the SEC or the staff thereof applicable to the Offer, or (iii) extend the Offer for an aggregate period of not more than 10 business days beyond the latest applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence, if the Company shall have held the Shareholders Meeting (with a quorum duly present) and a majority as of the shareholders present and voting did not vote to approve the Transactions by the Approval Datesuch date, the Purchaser shall not extend the Tender Offer. It is agreed that all of the conditions to Purchaser's obligations to accept for payment, and to pay for, the Tender Shares are satisfied or waived, but the number of Shares validly tendered and not withdrawn pursuant to the Offer set forth herein and in the Annex I to this Agreement are for the sole benefit is less than 90 percent, of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute outstanding Shares on a breach by the Purchaser of any of its covenants or agreements under this Agreement) or may be waived by the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be made in good faith and shall be final and binding on the parties. The Purchaser may, but is not obligated to, purchase Tender Shares in the Tender Offer if the Minimum Condition is not satisfied. However, only consummation of the Tender Offer for a number of Tender Shares which satisfies the Minimum Condition (a "Successful Tender Offer") shall result in the exchange of Exchangeable Notes for Convertible Notes and the cancellation of any outstanding Warrantsfully diluted basis.

Tender Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article 8, then, not later than the first business day after execution of this Agreement, the Company shall issue a public announcement IV hereof and none of the execution events set forth in Annex A hereto shall have occurred or be existing, within seven business days of this Agreement. At the time of and following such public announcementdate hereof, both parties shall fully cooperate with each other as necessary to allow the Purchaser to file such communications with the Commission under cover of Schedule TO as are required to be filed pursuant to Rule 14d-2(b) under the Exchange Act. Not later than the twentieth business day prior to the Shareholders Meeting, the Purchaser shall, subject to the provisions of this Agreement, will commence the Tender Offer for up to 8,250,000 shares together with the associated rights ("Rights") issued pursuant to the Rights Agreement dated as of February 25, 1999 a tender offer (the "Rights AgreementOffer") for 22,250,327 shares of common stock, no par value, of the Company (the "Shares"), between the Company and American Securities Transfer & Trust, Inc., as Rights Agent (collectively, the "Tender Shares") at a price of $4.00 51.00 per Tender ShareShare in cash, net to the seller seller, subject to the conditions set forth in cashAnnex A hereto. The Purchaser shall keep Subject to the Tender Offer open until the earlier terms and conditions of the date on which the Company Shareholders' Meeting is held and September 1Offer, 2000 (the "Approval Date"). The Purchaser shall will promptly accept for payment and pay for all Tender Shares that have been validly tendered and not withdrawn pursuant that it is obligated to the Tender Offer promptly following the Shareholder Approval, subject to satisfaction, or waiver by the Purchaser, purchase thereunder. The Company's Board of Directors shall recommend acceptance of the conditions set forth Offer to its shareholders in this Agreement and in Annex I to this Agreement. The obligation of the Purchaser to accept for payment, purchase and pay for Tender Shares tendered pursuant to the offer shall be subject to the conditions set forth herein and in the Offer Documents, including the condition that a minimum of 500,000 Tender Shares shall have been validly tendered and not withdrawn prior to the expiration date of the Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (the "Minimum ConditionSchedule 14D-9"). Solely for purposes of determining whether ) to be filed with the Minimum Condition has been satisfied, any shares owned by Securities and Exchange Commission (the Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Tender Offer. The Purchaser expressly reserves the right to increase the price per share payable in the Tender Offer or to make any other changes in the terms and conditions "SEC") upon commencement of the Tender Offer; provided, however, that if the Company's Board of Directors determines in good faith, after consultation with its outside counsel, that it is necessary to amend or withdraw its recommendation in order for its directors to comply with their respective fiduciary duties, such amendment or withdrawal shall not constitute a breach of this Agreement. The initial expiration date of the Offer shall be the date twenty (20) business days from and including the date (the "Commencement Date") the Offer Documents (as defined in Section 1.1(c) below) are first filed with the Securities and Exchange Commission. Purchaser expressly reserves the right, in its sole discretion, to waive, set forth or change any term and condition of the Offer; provided, that, unless previously approved by the Company in writing, no change provision may be made which set forth or changed which: (i) increases or, except as set forth in the next succeeding sentence, decreases the Tender Offer Condition (as defined in Annex A hereto); (ii) decreases the price per share payable Share to be paid in the Offer, which ; (iii) changes the form of consideration to be paid payable in the Tender Offer, which Offer (other than by adding consideration); (iv) imposes conditions to the Tender Offer in addition to those set forth herein, which broadens the scope of such conditions, which increases the minimum number of Tender Shares which must be tendered as a in Annex A hereto; or (v) amends or modifies any term or condition to the acceptance for payment and payment for Tender Shares in the Tender Offer, or which otherwise amends the terms of the Tender Offer in a manner that is materially adverse to the holders of sharesShares. Notwithstanding Without the foregoing, the Purchaser may, without the prior written consent of the Company, Purchaser shall not extend the Tender expiration date of the Offer ifbeyond the initial expiration date of the Offer; provided, by that, if on the Approval Date, initially scheduled expiration date of the Offer (or any subsequent expiration date) any of the conditions to the Purchaser's obligation Offer have not been satisfied, Purchaser may in its sole discretion extend from time to purchase Tender Shares shall not be satisfied until such time as such conditions are satisfied. However, if the Company shall have held Offer for up to and including an additional twenty (20) business days in the Shareholders Meeting (with a quorum duly present) and a majority aggregate after the initial expiration date of the shareholders present Offer, and voting did not vote may in its sole discretion, in connection with any such extension, amend the terms of the Offer, but only to approve reduce the Transactions by Tender Offer Condition to any number of Shares greater than 20,300,320 Shares (the Approval Date, the "Reduced Tender Offer Condition"); it being understood that if Purchaser shall accept for payment any Shares validly tendered and not extend withdrawn pursuant to the Tender Offer. It is agreed that the conditions , it shall accept for payment all such Shares up to the Tender Offer set forth herein and in the Annex I to this Agreement are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to any such condition Condition. The Offer shall further provide that Shares (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants or agreements under this Agreement) or may be waived by the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Purchaser with respect Shares issued pursuant to any of the foregoing conditions Company's employee or director benefit plans (includingincluding the Stock Plans)) may be tendered utilizing a notice of guaranteed delivery, without limitation, the satisfaction of such conditions) which shall be made in good faith and shall be final and binding on the parties. The Purchaser may, but is not obligated to, purchase Tender Shares in the Tender Offer if the Minimum Condition is not satisfied. However, only consummation require delivery of the Tender Offer for a number of Tender Shares which satisfies to the Minimum Condition depository within three business days (a "Successful Tender Offer") shall result in the exchange of Exchangeable Notes for Convertible Notes or such longer period as may be permitted under applicable law and agreed to by Purchase and the cancellation of any outstanding WarrantsCompany) following acceptance for payment by Purchaser.

Tender Offer. (a) Provided that this Agreement shall As promptly as practicable, and in any event not have been terminated in accordance with Article 8, then, not later more than the first business day after execution later of this Agreement, 10 days from the date hereof or seven Business Days following delivery of the Company Historical Financials (the “TO Commencement Date”), Buyer shall issue a public announcement commence (under the meaning of the execution of this Agreement. At the time of and following such public announcement, both parties shall fully cooperate with each other as necessary to allow the Purchaser to file such communications with the Commission under cover of Schedule TO as are required to be filed pursuant to Rule 14d-2(b) 14d-2 under the Exchange Act) an offer to purchase all outstanding shares of Buyer Common Stock (the “Tender Offer”) for cash equal to their pro rata share of the aggregate amount then on deposit in the Trust Account, less Taxes and interest (the “Tender Consideration”). Not later than Buyer agrees that no shares of Buyer Common Stock held by Buyer will be tendered in the twentieth business day prior Tender Offer. Unless otherwise agreed to by the Shareholders MeetingParties, the Purchaser shall, Buyer shall use its commercially reasonable efforts (subject to the provisions of this Agreement, commence market conditions) to conduct the Tender Offer for up without stockholder vote pursuant to 8,250,000 shares together Rule 13e-4 and Regulation 14E of the Exchange Act (as modified, waived or otherwise agreed to with the associated rights ("Rights"SEC) issued pursuant to which regulates issuer tender offers and in compliance with the Rights Agreement dated as requirements of February 25Buyer’s certificate of incorporation, 1999 (and will file Tender Offer documents with the "Rights Agreement"), between the Company and American Securities Transfer & Trust, Inc., as Rights Agent (collectively, the "Tender Shares") at a price of $4.00 per Tender Share, net to the seller in cashSEC. The Purchaser shall keep the Tender Offer open until the earlier obligation of the date on which the Company Shareholders' Meeting is held and September 1, 2000 (the "Approval Date"). The Purchaser shall Buyer to accept for payment and pay for all Tender Shares that have been shares of Buyer Common Stock validly tendered and not validly withdrawn pursuant to the Tender Offer promptly following the Shareholder Approval, shall be subject to satisfaction, or waiver by the Purchaser, satisfaction of each of the conditions set forth in the Tender Offer. Unless agreed to by the Parties or required by the SEC, no material change (including changing the amount per share offered to the stockholders) may be made to the Tender Offer which imposes additional conditions to the Tender Offer or is inconsistent with this Agreement and in Annex I to this AgreementSection. The obligation of the Purchaser Parties hereby agree to accept for payment, purchase and pay for Tender Shares tendered pursuant negotiate in good faith to the offer shall be subject to amend the conditions set forth herein and in the Tender Offer Documentsto reflect any changes that may be reasonably required as a result of discussions with the SEC or its staff. Unless an extension of the tender offer period is agreed to by the Parties or is required as a result of a change required by the SEC, including the condition Tender Offer shall expire on the date that a minimum of 500,000 Tender Shares shall have been validly tendered and not withdrawn prior to is 20 Business Days following the expiration date commencement of the Tender Offer (the "Minimum Condition"“Initial Expiration Date”). Solely for purposes of determining whether Notwithstanding the Minimum Condition has been satisfiedforegoing, any shares owned by the Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant subject to the Tender Offer. The Purchaser expressly reserves the right to increase the price per share payable in the Tender Offer or to make provisions of Section 9.3, if, at any other changes in the terms and conditions scheduled expiration of the Tender Offer; provided, however, that, unless previously approved by the Company in writing, no change may be made which decreases the price per share payable in the Offer, which changes the form of consideration to be paid conditions set forth in the Tender Offer, which imposes conditions to have not been satisfied or waived, Buyer may extend the Tender Offer in addition to those set forth hereinfor one or more consecutive periods beyond the Initial Expiration Date (the Initial Expiration Date as extended, which broadens the scope of such conditions, which increases the minimum number of Tender Shares which must be tendered as a condition to the acceptance for payment and payment for Tender Shares in the Tender Offer, or which otherwise amends the terms of the Tender Offer in a manner that is materially adverse to holders of shares“Expiration Time”). Notwithstanding the foregoing, the Purchaser mayBuyer, without the consent of the Company, may extend the Tender Offer if, for any period required by any Applicable Law or any change requested or required by the Approval DateSEC, any of or the conditions staff thereof, applicable to the Purchaser's obligation to purchase Tender Shares shall not be satisfied until such time as such conditions are satisfied. However, if the Company shall have held the Shareholders Meeting (with a quorum duly present) and a majority of the shareholders present and voting did not vote to approve the Transactions by the Approval Date, the Purchaser shall not extend the Tender Offer. It is agreed that the conditions to the Tender Offer set forth herein and in the Annex I to this Agreement are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants or agreements under this Agreement) or may be waived by the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be made in good faith and shall be final and binding on the parties. The Purchaser may, but is not obligated to, purchase Tender Shares in the Tender Offer if the Minimum Condition is not satisfied. However, only consummation of the Tender Offer for a number of Tender Shares which satisfies the Minimum Condition (a "Successful Tender Offer") shall result in the exchange of Exchangeable Notes for Convertible Notes and the cancellation of any outstanding Warrants.