Common use of Early Settlement Upon Cash Merger Clause in Contracts

Early Settlement Upon Cash Merger. (a) If there occurs a Cash Merger before the Third Stock Purchase Date, then, at the option of the Holder thereof, Stock Purchase Contracts underlying Common Equity Units may be settled early (“Cash Merger Early Settlement”) in accordance with, and subject to, this Section 5.8; provided, however, that Holders of Common Equity Units may effect Cash Merger Early Settlement pursuant to this Section 5.8 only in integral multiples of forty (40) Common Equity Units; provided further that upon a Cash Merger Early Settlement of a Common Equity Unit, such Cash Merger Early Settlement shall apply to each remaining Stock Purchase Contract of such Common Equity Unit whose Stock Purchase Date has not occurred before the applicable Cash Merger Early Settlement Date; provided further that no Cash Merger Early Settlement will be permitted pursuant to this Section 5.8 unless, at the time such Cash Merger Early Settlement is effected, there is an effective registration statement under the Securities Act with respect to the securities to be issued and delivered in connection with such Cash Merger Early Settlement, if such a registration statement is required (in the view of counsel, which need not be in the form of a written opinion, for the Company) under the Securities Act. If such a registration statement is so required, the Company covenants and agrees to use commercially reasonable efforts to (i) have in effect such a registration statement covering the settlement of the Stock Purchase Contracts being settled and (ii) provide a prospectus in connection therewith.

Early Settlement Upon Cash Merger. (a) If there occurs Commencing August 15, 2002, upon any amalgamation, arrangement, consolidation, merger or other reorganization event with respect to the Company of the type described in clause (ii) of Section 8.03(b) in which all of the Common Shares outstanding immediately prior to such event are exchanged for or converted into consideration at least 30% of the value of which (such 30% determination based on a valuation provided by a nationally recognized investment banking firm selected by the Company) consists of cash or cash equivalents (any such event a "Cash Merger"), the Company shall be required to offer the Holder of each Purchase Contract the right to settle the Purchase Contract prior to the Settlement Date (an "Early Settlement Upon Cash Merger" and the date on which such early settlement occurs, which shall occur immediately prior to the Merger Effective Date (as defined below), the "Early Settlement Upon Cash Merger before the Third Stock Purchase Date, then, at the option of the Holder thereof, Stock Purchase Contracts underlying Common Equity Units may be settled early (“Cash Merger Early Settlement”") in accordance with, and subject to, this Section 5.8as provided herein; provided, however, that Holders of Common Equity Units may effect no Early Settlement Upon Cash Merger shall be permitted if on the Early Settlement pursuant to this Section 5.8 only in integral multiples of forty (40) Common Equity Units; provided further that upon a Upon Cash Merger Early Settlement of a Common Equity Unit, such Cash Merger Early Settlement shall apply to each remaining Stock Purchase Contract of such Common Equity Unit whose Stock Purchase Date has not occurred before the applicable Cash Merger Early Settlement Date; provided further that no Cash Merger Early Settlement will be permitted pursuant to this Section 5.8 unless, at the time such Cash Merger Early Settlement is effected, there is an effective registration statement under the Securities Act with respect to the securities and a related current prospectus covering Common Shares to be issued and delivered in connection with such Cash Merger Early Settlement, if such a registration statement is required (in the view of counsel, which need not be in the form of a written opinion, for the Company) under the Securities Act. If such a registration statement is so required, the Company covenants and agrees to use commercially reasonable efforts to (i) have in effect such a registration statement covering the settlement respect of the Stock Purchase Contracts being settled is required under the U.S. federal securities laws but is not available. The Company or, at the request and expense of the Company, the Agent, shall give all Holders of Purchase Contracts notice of any proposed Cash Merger and of the right of Early Settlement Upon Cash Merger arising as a result thereof at least 25 days prior to the date on which the Cash Merger is to become effective (ii) provide the "Merger Effective Date"). The Company shall also deliver a prospectus in connection therewith.copy of such notice to the Agent and the Custodian. Each such notice shall contain:

Early Settlement Upon Cash Merger. (a) If there occurs a Cash Merger before the Third Stock Purchase Date, then, at the option of the Holder thereof, Stock Purchase Contracts underlying Common Equity Units may be settled early (“Cash Merger Early Settlement”) in accordance with, and subject to, this Section 5.8; provided, however, that Holders of Common Equity Units may effect Cash Merger Early Settlement pursuant to this Section 5.8 only in integral multiples of forty eighty (4080) Common Equity Units; provided further that upon a Cash Merger Early Settlement of a Common Equity Unit, such Cash Merger Early Settlement shall apply to each remaining Stock Purchase Contract of such Common Equity Unit whose Stock Purchase Date has not occurred before the applicable Cash Merger Early Settlement Date; provided further that no Cash Merger Early Settlement will be permitted pursuant to this Section 5.8 unless, at the time such Cash Merger Early Settlement is effected, there is an effective registration statement under the Securities Act with respect to the securities to be issued and delivered in connection with such Cash Merger Early Settlement, if such a registration statement is required (in the view of counsel, which need not be in the form of a written opinion, for the Company) under the Securities Act. If such a registration statement is so required, the Company covenants and agrees to use commercially reasonable efforts to (i) have in effect such a registration statement covering the settlement of the Stock Purchase Contracts being settled and (ii) provide a prospectus in connection therewith.