Common use of Warrants Clause in Contracts

Warrants. Subject to Section 5.3, at the Effective Time, each -------- ----------- holder of a then-outstanding warrant to purchase shares of Common Stock under any agreement or arrangement between such holder and the Company (collectively, the "Warrant Agreements") (true and correct copies of which have been provided ------------------ to Purchaser by the Company), to the extent then exercisable (individually, a "Warrant" and collectively, the "Warrants"), shall be cancelled and shall ------- -------- automatically be converted into the right to receive, at the Effective Time (subject to any applicable withholding tax), cash in an amount equal to the excess, if any, of (i) the Merger Consideration over (ii) the per share exercise price of such Warrant (such amount being hereinafter referred to as the "Warrant ------- Consideration") and thereupon each Warrant shall terminate and each holder ------------- thereof shall have no further rights to any Common Stock with respect thereto. In addition, any such Warrants which are not exercisable at the Effective Time shall be cancelled and each holder thereof shall have no further rights to any Common Stock with respect thereto. Payment for Warrants shall be made by the Company, subject to the terms and conditions of this Agreement and the provisions of the applicable Warrant Agreement, as soon as practicable after consummation of the Merger. The surrender of a Warrant to the Company in exchange for the Warrant Consideration shall be deemed a release of any and all rights the holder had or may have had in respect of such Warrant. All amounts payable pursuant to this Section 5.2(e) shall be subject to any required -------------- withholding of taxes and shall be paid without interest.

Warrants. Subject to Section 5.3(a) In accordance with the terms of the ESJ Exchange Agreement dated as of June 5, 1992 among the ESJ Entities, TPC Holding Corp. and the Company and the warrant certificates issued thereunder (the "Warrant Certificates"), all outstanding warrants of the Company issued pursuant thereto (the "ESJ WARRANTS") (other than ESJ Warrants owned by Parent, Merger Sub or any other direct or indirect subsidiary of Parent, which ESJ Warrants shall be canceled and extinguished at the Effective Time, each -------- ----------- holder with no payment being made with respect to such ESJ Warrants) shall, following the Effective Time, be exercisable only for an amount of a then-outstanding warrant cash equal to purchase shares of Common Stock under any agreement or arrangement between such holder the Offer Price and the Company (collectively, the "Warrant Agreements") (true and correct copies holders of which have been provided ------------------ to Purchaser by the Company), to the extent then exercisable (individually, a "Warrant" and collectively, the "Warrants"), such ESJ Warrants shall be cancelled and shall ------- -------- automatically be converted into the right entitled to receive, at upon surrender to the Effective Time (subject to any applicable withholding tax)Paying Agent of the warrant certificates for cancellation, cash in an amount equal to the excessWarrant Consideration. The Company shall take all actions necessary to ensure that following the Effective Time (i) the ESJ Warrants shall represent only the right to receive the Warrant Consideration in lieu of Shares issuable upon exercise thereof, if any(ii) all warrant agreements shall be terminated and cancelled and (iii) no party to such warrant agreements shall have the right to acquire any capital stock of the Company, Parent, the Surviving Corporation or any of their respective subsidiaries. (b) In accordance with the terms of the Lenders' Equity Agreement dated as of June 5, 1992 between the Company and certain banks and other financial institutions (the "Banks"), the Banks hold certain rights (the "BANK WARRANTS" and, collectively with the ESJ Warrants, the "WARRANTS") entitling them to receive an aggregate of 4,858 Shares (upon payment of $.01 per Share) upon the exercise of the ESJ Warrants by the holders thereof. The Company agrees to use its best efforts to (i) obtain, prior to the Effective Time, consents or waivers from each Bank whereby such Bank agrees to receive the Warrant Consideration in lieu of Shares issuable upon the exercise of the Bank Warrants and (ii) ensure that following the Effective Times (x) the Bank Warrants shall represent only the right to receive cash in an amount equal to the per share Offer Price less $.01 per share, (y) the Lenders' Equity Agreement shall be terminated and cancelled and (z) no party to such Lenders' Equity Agreement shall have the right to acquire any capital stock of the Company, Parent, the Surviving Corporation or any of their respective Subsidiaries.. (c) As used herein "WARRANT CONSIDERATION" shall mean an amount per Warrant equal to the product of (i) the Merger Consideration over number of Shares issuable upon exercise of such Warrant and (ii) the difference between the Offer Price and the per share Share exercise price of such Warrant (such per Warrant, without interest, which amount being hereinafter referred to as the "Warrant ------- Consideration") and thereupon each Warrant shall terminate and each holder ------------- thereof shall have no further rights to any Common Stock with respect thereto. In addition, any such Warrants which are not exercisable at the Effective Time shall be cancelled and each holder thereof shall have no further rights to any Common Stock with respect thereto. Payment for Warrants shall be made by the Company, subject to the terms and conditions of this Agreement and the provisions of the applicable Warrant Agreement, as soon as practicable after consummation of the Merger. The surrender of a Warrant to the Company in exchange for the Warrant Consideration shall be deemed a release of any and all rights the holder had or may have had in respect of such Warrant. All amounts payable pursuant to this Section 5.2(e) shall be subject to any required -------------- withholding of taxes and shall be paid without interestfrom and after the Effective Time.

Warrants. Subject to Section 5.3, at By virtue of the Effective TimeMerger, each -------- ----------- holder of a then-outstanding warrant to purchase shares of Common Company Stock under any agreement that is outstanding immediately prior to the Effective Time, whether or arrangement between such holder not then exercisable or vested (a “Warrant”) shall become fully vested and exercisable immediately prior to, and then shall be canceled at, the Effective Time, and the Company holder thereof shall, subject to Section 2.08, be entitled to receive from the Surviving Corporation (collectively, and Parent shall cause the "Warrant Agreements") (true and correct copies of which have been provided ------------------ Surviving Corporation to Purchaser by the Companypay to such holders), except as otherwise provided for in the written consent contemplated by Section 6.09(b), a one-time amount in cash equal to the extent then exercisable product of (individually, a "Warrant" and collectively, the "Warrants"), shall be cancelled and shall ------- -------- automatically be converted into the right to receive, at the Effective Time (subject to any applicable withholding tax), cash in an amount equal to x) the excess, if any, of (i1) the Merger Consideration over (ii2) the exercise price per share of Company Stock subject to such Warrants, with the aggregate amount of such payment rounded up to the nearest cent, and (y) the total number of shares of Company Stock subject to such fully vested and exercisable Warrants as in effect immediately prior to the Effective Time (the “Warrant Consideration”). The Warrant Consideration shall be paid in a lump sum as promptly as practicable after the Effective Time (but no later than ten (10) Business Days after the Effective Time to the extent that a holder of a Warrant has provided to the Company the written consent contemplated by Section 6.09(b) and to the extent reasonably practicable with respect to all other holders). In the event that the exercise price per share of any Warrant is equal to or greater than the Merger Consideration, such Warrant (such amount being hereinafter referred to shall be cancelled, as of the "Warrant ------- Consideration") Effective Time, without consideration or other payment thereon and thereupon each Warrant shall terminate and each holder ------------- thereof shall have no further force or effect. As of the Effective Time, all Warrants shall no longer be outstanding and shall automatically cease to exist, and each holder of a Warrant shall cease to have any rights to any Common Stock with respect thereto. In addition, any such Warrants which are not exercisable at except for the Effective Time shall be cancelled and each holder thereof shall have no further rights right to any Common Stock with respect thereto. Payment for Warrants shall be made by the Company, subject to the terms and conditions of this Agreement and the provisions of the applicable Warrant Agreementreceive Merger Consideration, as soon applicable, as practicable after consummation of the Merger. The surrender of a Warrant to the Company provided in exchange for the Warrant Consideration shall be deemed a release of any and all rights the holder had or may have had in respect of such Warrant. All amounts payable pursuant to this Section 5.2(e) shall be subject to any required -------------- withholding of taxes and shall be paid without interest2.05.

Warrants. Subject (a) Not later than 30 days prior to the Effective Time, the Company will send a notice to the holders of outstanding warrants to purchase shares of Company Common Stock (the "Company Warrants"): (i) specifying that such warrants will not be assumed in connection with the Merger, and (ii) specifying that any Company Warrants outstanding as of the Effective Time will thereafter represent only the right to receive the consideration, if any, specified in this Section 5.3, at 3.6(a) in accordance with this Agreement. At the Effective Time, each -------- ----------- holder of a then-Company Warrant outstanding warrant to purchase shares of Common Stock under any agreement or arrangement between such holder and the Company (collectively, the "Warrant Agreements") (true and correct copies of which have been provided ------------------ to Purchaser by the Company), immediately prior to the extent then exercisable (individuallyEffective Time will, a "Warrant" by virtue of the Merger and collectivelywithout any action on the part of the holder thereof, the "Warrants"), shall be cancelled and shall ------- -------- automatically be converted into into, and represent only, the right to receive, at the Effective Time receive (subject to any net of applicable withholding taxtaxes), cash in upon delivery thereof to the Company, an amount in cash equal to the excess, if any, of (i) the product of the Merger Consideration multiplied by the number of shares of Company Common Stock issuable upon exercise of such Company Warrant immediately prior to the Effective Time over (ii) the per share aggregate exercise price of those shares of Company Common Stock issuable upon the exercise of such Company Warrant (immediately prior to the Effective Time. The aggregate amount payable with respect to each such amount being Company Warrant pursuant to this Section 3.6(a) will hereinafter be referred to as the "Warrant ------- ConsiderationCash-Out Amount." (b) and thereupon each Warrant shall terminate and Promptly following the Effective Time, the Surviving Corporation will cause the Paying Agent to mail to each holder ------------- thereof shall have no further rights (as of immediately prior to any Common Stock with respect thereto. In addition, any such Warrants which are not exercisable at the Effective Time shall be cancelled and each holder thereof shall have no further rights to any Common Stock with respect thereto. Payment for Warrants shall be made by the Company, subject to the terms and conditions of this Agreement and the provisions of the applicable Warrant Agreement, as soon as practicable after consummation of the Merger. The surrender Time) of a Company Warrant which was converted into the right to the Company in exchange for receive the Warrant Consideration shall Cash-Out Amount pursuant to Section 3.6(a) hereof, (i) a letter of transmittal (which will be deemed a release of any in such form and all rights have such other provisions as the holder had or Surviving Corporation may have had reasonably specify), and (ii) instructions for use in receiving the Warrant Cash-Out Amount payable in respect of such Warrant. All amounts payable Company Warrants pursuant to this Section 5.2(e) shall 3.6. Upon the delivery of such letter of transmittal by or on behalf of a holder of a Company Warrant, duly completed and validly executed in accordance with the instructions thereto, together with the documentation representing the Company Warrant surrendered thereby, to the Paying Agent, such holder of a Company Warrant will be subject entitled to any required -------------- withholding receive the Warrant Cash-Out Amount payable to it in respect of taxes and shall be paid without interestsuch Company Warrant pursuant to Section 3.6.

Warrants. Subject The Company shall take all actions necessary to Section 5.3provide that at the Effective Time each Series A Warrant that is outstanding, at unexercised and unexpired immediately prior to the Effective Time, each -------- ----------- holder of a then-outstanding warrant shall be accelerated in full, cancelled and converted into and represent the right to purchase shares of Common Stock under any agreement or arrangement between such holder and the Company receive (collectivelyA) an amount in cash, the "Warrant Agreements") (true and correct copies of which have been provided ------------------ to Purchaser by the Company)without interest, equal to the extent then exercisable Series A Per Share Closing Amount, minus the exercise price per share attributable to such Series A Warrant, plus (individually, a "Warrant" and collectively, B) the "Warrants"), shall be cancelled and shall ------- -------- automatically be converted into the contingent right to receive, at the Effective Time (subject to any applicable withholding tax)in accordance with Section 1.7 hereof, cash in an amount equal to the excess, Pro Rata Initial Order Cash Consideration (if any), plus (C) the contingent right to receive, in accordance with Section 1.8 hereof, an amount equal to the Pro Rata Performance Amount (if any), plus (D) an amount in cash, without interest, equal to the product of (ix) the Merger Consideration over Pro Rata Share multiplied by (iiy) any proceeds or distributions of the per share exercise price of such Warrant Escrow Amount (such amount being hereinafter referred if, when and to as the "Warrant ------- Consideration") and thereupon each Warrant shall terminate and each holder ------------- thereof shall have no further rights extent distributed to any Common Stock with respect thereto. In addition, any such Warrants which are not exercisable at the Effective Time shall be cancelled and each holder thereof shall have no further rights to any Common Stock with respect thereto. Payment for Warrants shall be made by the Company, subject Participating Holders pursuant to the terms herein), plus (E) an amount in cash, without interest, equal to the product of (x) the Pro Rata Share multiplied by (y) the Post-Closing Adjustment (if, when and conditions of to the extent distributed to the Participating Holders pursuant to the terms herein); provided, however, that, notwithstanding anything in this Agreement to the contrary, upon allocation of Merger Consideration (including, for the avoidance of doubt, the Pro Rata Share of the Escrow Amount and the provisions of the applicable Warrant AgreementPost-Closing Adjustment, as soon as practicable after consummation applicable, initially allocable to each share of the Merger. The surrender of a Series A Preferred Stock for which such Series A Warrant to the Company in exchange for the Warrant Consideration shall be deemed a release to be exercised, whether or not actually distributed to the Participating Holders) in the aggregate equal to $21.00 per share of Series A Preferred Stock for which such Series A Warrant shall be deemed to be exercised, no holder of shares of Series A Preferred Stock may receive any and all rights the holder had or may have had further distributions in respect of such Warrantshares (the “Warrant Overflow Funds”); provided, further, that any Warrant Overflow Funds resulting from the application of the immediately preceding proviso shall be distributed in accordance with Section 1.6(b)(ii) above. All amounts payable Any amount paid pursuant to this Section 5.2(e) 1.10 in respect of Series A Warrants shall be subject to any applicable Taxes required -------------- withholding of taxes and shall to be paid without interestwithheld with respect to such payment.

Warrants. Subject (a) Promptly following the execution of this Agreement, the Company shall use commercially reasonable efforts to Section 5.3, ensure that at the Effective Appointment Time, all Company Warrants shall be terminated. In consideration of such termination, each -------- ----------- holder of a thenan In-outstanding warrant the-Money Warrant terminated in accordance with this Section 2.8 will be entitled to purchase shares receive in settlement of Common Stock under any agreement or arrangement between such holder and In-the-Money Warrant, as promptly as practicable following the Company (collectively, the "Warrant Agreements") (true and correct copies of which have been provided ------------------ to Purchaser by the Company), to the extent then exercisable (individuallyAppointment Time, a "Warrant" and collectivelycash payment from the Payment Fund, the "Warrants"), shall be cancelled and shall ------- -------- automatically be converted into the right to receive, at the Effective Time (subject to any applicable required withholding tax)of taxes, cash in an amount equal to the excess, if any, product of (i) the Merger Consideration over total number of shares of Company Common Stock otherwise issuable upon exercise of such In-the-Money Warrant and (ii) the excess of the Offer Price over the applicable exercise price per share of Company Common Stock otherwise issuable upon exercise price of such In-the-Money Warrant (such amount being hereinafter referred to as the "“In-the-Money Warrant ------- Consideration") and thereupon each Warrant shall terminate and each holder ------------- thereof shall have no further rights ”); provided, however, that with respect to any Common Stock with respect thereto. In additionperson subject to Section 16(a) of the Exchange Act, any such Warrants which are not exercisable at the Effective Time amount shall be cancelled and each holder thereof shall have no further rights to any Common Stock with respect thereto. Payment for Warrants shall be made by the Company, subject to the terms and conditions of this Agreement and the provisions of the applicable Warrant Agreement, paid as soon as practicable after consummation the first date payment can be made without liability to such person under Section 16(b) of the MergerExchange Act. The surrender For the avoidance of a Warrant doubt, all Company Warrants that are not In-the-Money Warrants shall be terminated without payment of any consideration and without any further liability to the Company in exchange for or the Surviving Corporation and shall not be accelerated, and the holders of Company Warrants shall be entitled to the In-the-Money Warrant Consideration shall be deemed a release of any and all rights the holder had or may have had in respect of such Warrant. All amounts payable pursuant to this Section 5.2(e2.8 only to the extent such Company Warrants are In-the-Money Warrants. (b) The Company shall use commercially reasonable efforts to cause each holder of a Company Warrant to execute a written acknowledgment of such holder that (i) the payment of the In-the-Money Warrant Consideration, if any, will satisfy in full the Company’s obligation to such person pursuant to such Company Warrant and (ii) subject to the payment of the In-the-Money Warrant Consideration, if any, such Company Warrant held by such holder shall, without any action on the part of the Company or the holder, be deemed terminated, canceled, void and of no further force and effect as between the Company and the holder and neither party shall have any further rights or obligations with respect thereto and (iii) that any Company Warrant held by such holder that is not an In-the-Money Warrant shall be subject canceled without payment of any consideration and without any further liability to any required -------------- withholding of taxes and the Company or the Surviving Corporation. Such written acknowledgment shall be paid without interest.substantially in the form attached hereto as Exhibit C.

Warrants. Subject Immediately prior to the Effective Time, each Warrant holder shall assign to the Company, pursuant to the terms of the Warrant Assignment Agreement, all of the Warrants held by such holder, in exchange for the consideration set forth in this Section 5.34.4. Each Warrant holder shall thereafter be entitled to receive for each Warrant held thereby and so assigned, an amount equal to: (i) a payment in cash by the Company (subject to any applicable withholding taxes), at the Effective Time, each -------- ----------- holder of a then-outstanding warrant to purchase shares of Common Stock under any agreement or arrangement between such holder and the Company (collectively, the "Warrant Agreements") (true and correct copies of which have been provided ------------------ to Purchaser by the Company), equal to the extent then exercisable product of (individually, a "Warrant" and collectively, A) the "Warrants"), shall be cancelled and shall ------- -------- automatically be converted into the right total number of Company Common Shares as to receive, at the Effective Time which such Warrant remains unexercised times (subject to any applicable withholding tax), cash in an amount equal to B) the excess, if any, of (1) the Preliminary Merger Price over (2) the exercise price per Company Common Share subject to such Warrant, if any (such amounts payable hereunder being referred to as the “Warrant Payments”) and (ii) any additional payment when due and payable under Section 4.7(c). Upon surrender of the warrant agreement by the holder of such Warrant to the Escrow and Paying Agent, the Escrow and Paying Agent shall pay to such holder, on behalf of the Company and subject to any applicable withholding taxes, the Warrant Payments due under this Section 4.4 with respect to such Warrant. Notwithstanding the foregoing, the Escrow and Paying Agent shall not pay to the Warrant holder that portion of the Warrant Payments representing that portion of the Preliminary Merger Price to be deposited in (i) the Merger Consideration over Indemnity Escrow, (ii) the per share exercise price of Adjustment Escrow, and (iii) if applicable, the Transaction Expenses Escrow until such Warrant (time as such amount being hereinafter referred to as the "Warrant ------- Consideration") and thereupon each Warrant shall terminate and each holder ------------- thereof shall have no further rights to any Common Stock with respect thereto. In addition, any such Warrants which amounts are not exercisable at the Effective Time shall be cancelled and each holder thereof shall have no further rights to any Common Stock with respect thereto. Payment for Warrants shall be made by the Company, subject distributable pursuant to the terms and conditions of this Agreement and the provisions of the applicable Warrant Escrow Agreement, as soon as practicable after consummation of the Merger. The surrender of a Warrant to the Company in exchange for the Warrant Consideration shall be deemed a release of any and all rights the holder had or may have had in respect of such Warrant. All amounts payable pursuant to this Section 5.2(e) shall be subject to any required -------------- withholding of taxes and shall be paid without interest.

Warrants. Subject The Borrower will issue to Section 5.3the Bank, at as soon as reasonably practicable, detachable warrants (the Effective Time, each -------- ----------- holder of a then-outstanding warrant `Warrants') to purchase 100,000 shares of Common Stock under any agreement or arrangement between such holder and the Company (collectively, the "Warrant Agreements") (true and correct copies of which have been provided ------------------ to Purchaser by the Company), to the extent then exercisable (individually, a "Warrant" and collectively, the "Warrants"), shall be cancelled and shall ------- -------- automatically be converted into the right to receive, Borrower's common stock at the Effective Time (subject to any applicable withholding tax), cash in an amount equal to the excess, if any, of (i) the Merger Consideration over (ii) the per share exercise price of such $1.00 per share. The Warrants will be issued for no consideration other than the Bank's agreement to enter into the October 9, 1997 amendments to this letter agreement and to make a $750,000 bridge loan pursuant thereto. The Warrants will be in form and substance satisfactory to the Bank, will have an exercise period of 5 years and will be governed by a warrant purchase agreement (the `Warrant Agreement') in form and substance satisfactory to the Bank." j. By deleting from clause (such amount being hereinafter referred c) of Section 5.1 of the Letter Agreement the references to as Sections 3.7, 3.8, 3.9 and 3.10. - 3 - 4 k. By deleting in its entirety Section 5.4 of the Letter Agreement. l. By deleting in its entirety Section 6.3 of the Letter Agreement; provided that the amendment made by this paragraph will not become effective until the Borrower has paid all commitment fees accrued through October 9, 1997. m. By deleting from the fourth sentence of Section 6.7 of the Letter Agreement the words "together with payment of the sum described in the fourth sentence of ss.6.3". n. By inserting into the definition of "Loan Documents" appearing in Section 7.1 of the Letter Agreement, immediately after the words "Revolving Note", the following: "the Warrants, the Warrant Agreement," 4. In order to induce the Bank to enter into this Agreement and to make the Bridge Loan, the Borrower is paying to the Bank a non-refundable amendment fee of $10,000. This fee is not to be reduced by or applied against any fees, interest or other payments heretofore, now or hereafter required under the Letter Agreement, the Revolving Note and/or the Bridge Note. 5. Wherever in any Financing Document, or in any certificate or opinion to be delivered in connection therewith, reference is made to a "letter agreement" or to the "Warrant ------- ConsiderationLetter Agreement") , from and thereupon each Warrant shall terminate after the date hereof same will be deemed to refer to the Letter Agreement, as hereby amended. 6. Simultaneously with the execution and each holder ------------- thereof shall have no further rights delivery of this Agreement, the Borrower is executing and delivering to the Bank the Bridge Note, in substitution of the Revolving Note. The Bridge Note is a $750,000 promissory note of the Borrower, substantially in the form attached hereto as Exhibit 1. Wherever in any Common Stock with respect theretoof the Financing Documents or in any certificate or opinion to be delivered in connection therewith, reference is made to a "Revolving Note", from and after the date hereof same will be deemed to refer to the Bridge Note. 7. In additionorder to induce the Bank to enter into this Agreement, any such Warrants which are not exercisable at the Effective Time shall be cancelled Borrower further represents and each holder thereof shall have no further rights to any Common Stock with respect thereto. Payment for Warrants shall be made by the Companywarrants as follows: a. The execution, subject to the terms delivery and conditions performance of this Agreement and the Bridge Note have been duly authorized by the Borrower by all necessary corporate and other action, will not require the consent of any third party and will not conflict with, violate the provisions of, or cause a default or constitute an event which, with the passage of time or the giving of notice or both, could cause a default on the part of the applicable Warrant Borrower under its charter documents or by-laws or under any contract, agreement, law, rule, order, ordinance, franchise, instrument or other document, or result in the imposition of any lien or encumbrance (except in favor of the Bank) on any property or assets of the Borrower. b. The Borrower has duly executed and delivered each of this Agreement and the Bridge Note. c. Each of this Agreement and the Bridge Note is the legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its respective terms. d. The statements, representations and warranties made in the Letter Agreement and/or in the Security Agreement continue to be correct as of the date hereof; except as amended, updated and/or supplemented by the attached Supplemental Disclosure Schedule. e. Giving effect to the amendments set forth in Section 3 above, the covenants and agreements of the Borrower contained in the Letter Agreement and/or in the Security Agreement have been complied with on and as of the date hereof. f. Giving effect to the amendments set forth in Section 3 above, no event which constitutes or which, with notice or lapse of time, or both, could constitute, an Event of Default (as defined in the Letter Agreement) has occurred and is continuing. g. Except as heretofore disclosed to the Bank in writing, no material adverse change has occurred in the financial condition of the Borrower from that disclosed in the annual financial statements of the Borrower dated December 31, 1996, heretofore furnished to the Bank. 8. Except as expressly affected hereby, the Letter Agreement and each of the other Financing Documents remains in full force and effect as heretofore. Without limitation of the foregoing, the IAR Security Agreement and the Supplementary Security Agreement remain in full force and effect and secure inter alia the Borrower's obligations under the Bridge Note and under the Letter Agreement, as soon as practicable after consummation of the Merger. The surrender of a Warrant to the Company in exchange for the Warrant Consideration shall be deemed a release of any and all rights the holder had or may have had in respect of such Warrant. All amounts payable pursuant to amended by this Section 5.2(e) shall be subject to any required -------------- withholding of taxes and shall be paid without interestAgreement.

Warrants. Subject As of the Effective Time, pursuant to this Agreement and without any further action on the part of any holder thereof, each Warrant outstanding immediately prior to the Effective Time shall (i) in the case of Warrants issued pursuant to the Warrant Agreements, be converted in accordance with its terms pursuant to Section 5.3, 12(g) of each Warrant Agreement into the right to receive (A) at the Effective Time, each -------- ----------- holder an amount in cash from the Company or the Surviving Corporation, as applicable, equal to the product of a then-outstanding warrant to purchase (x) the number of shares of Common Stock under any agreement or arrangement between such holder and the Company (collectively, the "Warrant Agreements") (true and correct copies of which have been provided ------------------ to Purchaser by the Company), to the extent then exercisable (individually, a "Warrant" and collectively, the "Warrants"), shall be cancelled and shall ------- -------- automatically be converted into the right to receive, at the Effective Time (subject to any applicable withholding tax)such Warrant, cash in an amount equal to and (y) the excess, if any, of (i) the Merger Estimated Per Share Common Stock Closing Consideration over (ii) the per share exercise price of such Warrant plus (B) the right to receive, for each share of Common Stock subject to such amount being hereinafter referred to as Warrant, the "Warrant ------- Consideration"Per Share Holdback Amount (Common) and thereupon each Warrant shall terminate the Per Share Adjustment Amount (Common) as provided herein and each in the Escrow Agreement, or (ii) in the case of any other Warrants, be canceled and, in consideration for the cancellation thereof, the holder ------------- thereof shall have no further rights be entitled to any Common Stock with respect thereto. In addition, any such Warrants which are not exercisable receive (A) at the Effective Time shall be cancelled and each holder thereof shall have no further rights Time, an amount in cash from the Company or the Surviving Corporation, as applicable, equal to any the product of (x) the number of shares of Common Stock with respect theretosubject to such Warrant, and (y) the excess, if any, of the Estimated Per Share Common Stock Closing Consideration over the exercise price of such Warrant plus (B) the right to receive, for each share of Common Stock subject to such Warrant, the Per Share Holdback Amount (Common) and the Per Share Adjustment Amount (Common) as provided herein and in the Escrow Agreement. Payment for Warrants The Company and the Surviving Corporation shall be made take all actions required by the Company, subject to the terms and conditions of this Agreement and the provisions of the applicable Warrant Agreement, as soon as practicable after consummation of the Merger. The surrender of a Warrant to the Company in exchange for the Warrant Consideration shall be deemed a release of any and all rights the holder had or may have had in respect of such Warrant. All amounts payable Agreements (including pursuant to this Section 5.2(e12(g) shall be subject and 13(c) thereof) to any required -------------- withholding of taxes and shall be paid without interesteffectuate the foregoing.

Warrants. Subject (a) First Sun represents and warrants to Section 5.3, at the Effective Time, each -------- ----------- holder of a then-outstanding warrant to purchase shares of Common Stock under any agreement or arrangement between such holder and the Company (collectively, the "Warrant Agreements") (true and correct copies of which have been provided ------------------ to Purchaser by the Company), to the extent then exercisable (individually, a "Warrant" and collectively, the "Warrants"), shall be cancelled and shall ------- -------- automatically be converted into the right to receive, at the Effective Time (subject to any applicable withholding tax), cash in an amount equal to the excess, if any, of Distributor that: (i) Registration Statements on Form N-4 (and, if applicable, Form S-1) for each of the Merger Consideration over Contracts identified on Attachment A have been filed with the Commission in the form previously delivered to the Distributor and that copies of any and all amendments thereto will be forwarded to the Distributor at the time that they are filed with the Commission; (ii) The Registration Statement and any further amendments or supplements thereto will, when they become effective, conform in all material respects to the per share exercise price requirements of the Securities Act of 1933 and the Investment Company Act of 1940, and the rules and regulations of the Commission under such Acts, and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statement or omission made in reliance upon and in conformity with information furnished in writing to First Sun by the Distributor expressly for use therein; (iii) First Sun is validly existing as a stock life insurance company in good standing under the laws of the state of New York, with power (corporate or otherwise) to own its properties and conduct its business as described in the Prospectus, and has been duly qualified for the transaction of business and is in good standing under the laws of each other jurisdiction, or conducts any business, so as to require such qualification; (iv) The Contracts to be issued through the Separate Account and offered for sale by the Distributor on behalf of First Sun hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein, will be duly and validly issued and will conform to the description of such Warrant Contracts contained in the Prospectuses relating thereto; (such amount being hereinafter referred v) Those persons who offer and sell the Contracts are to be appropriately licensed in a manner as to comply with the "Warrant ------- Consideration"state insurance laws; -2- 3 (vi) and thereupon each Warrant shall terminate and each holder ------------- thereof shall have no further rights to any Common Stock with respect thereto. In addition, any such Warrants which are not exercisable at the Effective Time shall be cancelled and each holder thereof shall have no further rights to any Common Stock with respect thereto. Payment for Warrants shall be made by the Company, subject to the terms and conditions The performance of this Agreement and the provisions of the applicable Warrant Agreement, as soon as practicable after consummation of the Merger. transactions contemplated by this Agreement will not result in a breach or violation of any of the terms and provisions of, or constitute a default under any statute, any indenture, mortgage, deed of trust, note agreement or other agreement or instrument to which First Sun is a party or by which First Sun is bound, First Sun's Charter as a stock life insurance company or By-laws, or any order, rule or regulation of any court or governmental agency or body having jurisdiction over First Sun or any of its properties; and no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by First Sun of the transactions contemplated by this Agreement, except such as may be required under the Securities Exchange Act of 1934 or state insurance or securities laws in connection with the distribution of the Contracts by the Distributor; and (vii) There are no material legal or governmental proceedings pending to which First Sun or the Separate Account is a party or of which any property of First Sun or the Separate Account is the subject, other than as set forth in the Prospectus relating to the Contracts, and other than litigation incident to the kind of business conducted by First Sun, if determined adversely to First Sun, would individually or in the aggregate have a material adverse effect on the financial position, surplus or operations of First Sun. (b) The surrender Distributor represents and warrants to First Sun that; (i) It is a broker-dealer duly registered with the Commission pursuant to the Securities Exchange Act of 1934 and a member in good standing of the National Association of Securities Dealers, Inc., and is in compliance with the securities laws in those states in which it conducts business as a broker-dealer; (ii) The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms or provisions of or constitute a default under any statute, any indenture, mortgage, deed of trust, note agreement or other agreement or instrument to which the Distributor is a party or by which the Distributor is bound, the Certificate of Incorporation or By-laws of the Distributor, or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Distributor or its property; and (iii) To the extent that any statements or omissions made in the Registration Statement, or any amendment or supplement thereto are made in reliance upon and in conformity with written information furnished to First Sun by the Distributor expressly for use therein, such Registration Statement and any amendments or supplements thereto will, when they become effective or are filed with the Commission, as the case may be, conform in all material respects to the requirements of the Securities Act of 1933 and the rules and regulations of the Commission thereunder and will not contain any untrue statement of a Warrant material fact or omit to state any material fact required to be stated therein or necessary to make the Company in exchange for the Warrant Consideration shall be deemed a release of any and all rights the holder had or may have had in respect of such Warrant. All amounts payable pursuant to this Section 5.2(e) shall be subject to any required -------------- withholding of taxes and shall be paid without intereststatements therein not misleading.

Warrants. Subject As additional consideration for each completed Transaction, (i) upon the sale of Securities during the term of this Agreement to Section 5.3Investors introduced (including for such purposes investors introduced by persons introduced by Xxxxxxx) to Client by Xxxxxxx prior to or during the term of this Agreement and (ii) upon the sale of Securities in Future Offerings during the Participation Period to Investors introduced (excluding for such purposes investors introduced by persons introduced by Xxxxxxx other than any such investors who purchased Securities during the term of this Agreement) to Client by Xxxxxxx prior to or during the term of this Agreement, at Client shall promptly xxxxx Xxxxxxx warrants for the Effective Time, each -------- ----------- holder purchase of a then-outstanding warrant to purchase shares of Common Stock under any agreement or arrangement between such holder and the Company (collectively, the "Warrant Agreements") (true and correct copies of which have been provided ------------------ to Purchaser by the Company), to the extent then exercisable (individually, a "Warrant" and collectively, the "Warrants"), shall be cancelled and shall ------- -------- automatically be converted into the right to receive, at the Effective Time (subject to any applicable withholding tax), cash in an amount equal to five percent (5%) of the excess, if any, of Securities issued in such completed Transaction. The warrants to purchase common stock issued pursuant to Section 4 (i) shall be exercisable over a five (5) year period, have an exercise price equal to the Merger Consideration over (ii) the per share exercise price of the Investor’s warrants and contain other customary terms as Client and Xxxxxxx agree, including the ability to assign the warrants to other accredited representatives of Xxxxxxx. The warrants to purchase common stock issued pursuant to Section 4(ii) of this Section 4 shall be on the terms provided for any such Warrant (such amount being hereinafter referred warrant in any Future Offering, or if no warrants are to as the "Warrant ------- Consideration") be issued in any Future Offering, on terms to be agreed by Client and thereupon each Warrant shall terminate and each holder ------------- thereof Xxxxxxx.” 3. Capitalized terms not otherwise defined herein shall have no further rights the meanings ascribed to any Common Stock with respect theretothem in the Agreement. 4. In additionExcept as specifically provided herein, any such Warrants which are not exercisable at the Effective Time Agreement is in all other respects hereby ratified and confirmed without amendment. 5. This Agreement shall be cancelled governed by and each holder thereof shall have no further rights construed in accordance with the laws of the State of New York applicable to any Common Stock with respect theretocontracts executed and to be wholly performed therein. Payment for Warrants The prevailing party shall be made by the Company, subject entitled to the terms a reasonable sum of attorney’s fees and conditions of this Agreement any other reasonable costs and the provisions of the applicable Warrant expenses relating thereto. 6. The Agreement, as soon as practicable after consummation of amended hereby, represents the Merger. The surrender of a Warrant entire agreement by and between the Client and Xxxxxxx and supersedes any and all other agreements, either oral or written, with respect to the Company subject matter hereof. This letter may be executed simultaneously in exchange for the Warrant Consideration two or more counterparts, each of which shall be deemed a release an original, but all of any which shall constitute one and all rights the holder had or may have had same instrument. Any modification of this letter will be effective only if it is in respect of such Warrant. All amounts payable pursuant to this Section 5.2(e) shall be subject to any required -------------- withholding of taxes writing and shall be paid without interestsigned by the Client and Xxxxxxx.

Warrants. Subject to Section 5.3At the Closing, at the Effective Time, each -------- ----------- holder of a then-outstanding warrant to purchase shares of Common Stock under any agreement or arrangement between such holder and the Company shall issue and sell to each Purchaser, and each of the Purchasers shall purchase, severally and not jointly, a warrant in substantially the form attached hereto as Exhibit B (collectivelyeach, a “Warrant” and collectively the "Warrant Agreements") (true and correct copies of which have been provided ------------------ to Purchaser by the Company“Warrants”), to the extent then exercisable (individually, a "Warrant" and collectively, the "Warrants"), shall be cancelled and shall ------- -------- automatically be converted into the right to receive, at the Effective Time (subject to any applicable withholding tax), cash in an amount equal to the excess, if any, of (i) the Merger Consideration over (ii) the per share exercise price of such Warrant (such amount being hereinafter referred to as the "Warrant ------- Consideration") and thereupon each Warrant shall terminate and each holder ------------- thereof shall have no further rights to any Common Stock with respect thereto. In addition, any such Warrants which are not exercisable at the Effective Time shall be cancelled and each holder thereof shall have no further rights to any Common Stock with respect thereto. Payment for Warrants shall be made by the Company, subject pursuant to the terms and conditions hereof. Each such Warrant shall be exercisable for up to that number of shares of equity securities of the Company, as is equal to twenty-five percent (25%) of the principal amount of the Notes purchased by the Purchaser at the Closing, divided by the purchase price of the applicable equity securities as more fully described in the Warrants. The Company and the Purchasers agree that: (i) neither the Purchasers nor any of their respective Affiliates has rendered any services to the Company in connection with this Agreement; (ii) the Warrants are not being issued as compensation; (iii) the Notes and the Warrants constitute an “investment unit” for purposes of Section 1273(c)(2)(A) of the Internal Revenue Code of 1986, as amended (the “Code”); (iv) the fair market value of each Note authorized for issuance hereunder, if issued apart from the corresponding Warrant, is 99% of the principal amount of the Note, and the aggregate fair market value of each Warrant authorized for issuance hereunder, if issued apart from the corresponding Note, is 1% of the principal amount of such Note; (v) the Company believes that the amount of original issue discount that will accrue on the Notes will be de minimis and (vi) all tax returns and other information of each party relative to this Agreement and the provisions of Notes and Warrants issued pursuant hereto shall consistently reflect the matters agreed to in (i) through (v) above unless required by the Code or other applicable Warrant Agreement, as soon as practicable after consummation of the Merger. The surrender of a Warrant to the Company in exchange for the Warrant Consideration shall be deemed a release of any and all rights the holder had or may have had in respect of such Warrant. All amounts payable pursuant to this Section 5.2(e) shall be subject to any required -------------- withholding of taxes and shall be paid without interesttax law.

Warrants. Subject (i) Prior to the Closing, the Company shall take such actions necessary or desirable to provide that (A) each Warrant that is not an In-the-Money Warrant shall be cancelled, terminated and extinguished without any consideration paid therefor at the Effective Time, (B) each In-the- Money Warrant shall be cancelled, terminated and extinguished at the Effective Time in exchange for the right to receive the consideration set forth in this Section 5.32.03(b) and in Section 3.06(c), Section 3.06(d) and Section 10.01(g). Pursuant to the terms and subject to the conditions set forth herein, by virtue of the Merger, at the Effective Time, each -------- ----------- holder of a thenIn-outstanding warrant to purchase shares of Common Stock under any agreement or arrangement between such holder and the Company (collectively, the "the-Money Warrant Agreements") (true and correct copies of which have been provided ------------------ to Purchaser by the Company), to the extent then exercisable (individually, a "Warrant" and collectively, the "Warrants"), shall be cancelled and shall ------- -------- automatically be converted into exchanged for the right to receive, at the Effective Time (subject to any applicable withholding tax)Tax withholdings, cash in an amount in cash equal to the excess, if any, product of (ix) the Merger Consideration over aggregate number of shares of Common Stock underlying such Warrant immediately prior to the Closing, multiplied by (iiy) the difference of (I) the Common Stock Per Share Amount minus (II) the applicable exercise price per share exercise price of such Warrant (such amount being hereinafter referred to as In-the-Money Warrant. Upon the "Warrant ------- Consideration") and thereupon cancellation of each Warrant in accordance with this Section 2.03(b), each Warrantholder shall terminate cease to have any rights, and each holder ------------- thereof the Group Companies shall cease to have no further rights to any Common Stock Liabilities, with respect thereto. In addition, except the rights of any such Warrants which are not exercisable at Warrantholder to receive the Effective Time shall be cancelled and each holder thereof shall have no further rights to any Common Stock consideration (if any) payable with respect thereto. Payment for Warrants shall be made by the Company, subject to the terms and conditions of this Agreement and the provisions of the applicable Warrant Agreement, as soon as practicable after consummation of the Merger. The surrender of a Warrant to the Company in exchange for the Warrant Consideration shall be deemed a release of any and all rights the holder had or may have had in respect of such Warrant. All amounts payable thereto pursuant to this Section 5.2(e2.03(b) and Section 3.06(c), Section 3.06(d) and Section 10.01(g). (ii) Notwithstanding anything herein to the contrary, (A) as a condition to receiving any payment pursuant to this Agreement in respect of his or her Warrants, each Warrantholder shall be subject required, and the Company shall cause such Warrantholder, to execute and deliver to the Company an Warrant Cancellation Agreement, in substantially the form attached hereto as Exhibit F (a “Warrant Cancellation Agreement”) and (B) consideration in respect of any required -------------- withholding Warrant shall not be payable if the relevant Warrantholder has not executed and delivered to the Company an Warrant Cancellation Agreement. The Company shall provide Purchaser with a copy of taxes and shall be paid without interesteach Warrant Cancellation Agreement received by it following its execution by the applicable Warrantholder.

Warrants. Subject (a) Promptly following the execution of this Agreement, the Company shall use commercially reasonable efforts to Section 5.3, ensure that at the Effective Time, all Company Warrants shall be terminated. In consideration of such termination, each -------- ----------- holder of an In-the-Money Warrant terminated in accordance with this Section 1.9 will be entitled to receive in settlement of such In-the-Money Warrant, as promptly as practicable following the Effective Time, a then-outstanding warrant to purchase shares of Common Stock under any agreement or arrangement between such holder and cash payment from the Company Payment Fund (collectively, the "Warrant Agreements") (true and correct copies of which have been provided ------------------ to Purchaser by the Companyas defined in Section 1.11), to the extent then exercisable (individually, a "Warrant" and collectively, the "Warrants"), shall be cancelled and shall ------- -------- automatically be converted into the right to receive, at the Effective Time (subject to any applicable required withholding tax)of taxes, cash in an amount equal to the excess, if any, product of (i) the Merger Consideration over total number of shares of Company Common Stock otherwise issuable upon exercise of such In-the-Money Warrant and (ii) the excess of the Merger Consideration over the applicable exercise price per share of Company Common Stock otherwise issuable upon exercise price of such In-the-Money Warrant (such amount being hereinafter referred to as the "“In-the-Money Warrant ------- Consideration") and thereupon each Warrant shall terminate and each holder ------------- thereof shall have no further rights ”); provided, however, that with respect to any Common Stock with respect thereto. In additionperson subject to Section 16(a) of the Exchange Act, any such Warrants which are not exercisable at the Effective Time amount shall be cancelled and each holder thereof shall have no further rights to any Common Stock with respect thereto. Payment for Warrants shall be made by the Company, subject to the terms and conditions of this Agreement and the provisions of the applicable Warrant Agreement, paid as soon as practicable after consummation the first date payment can be made without liability to such person under Section 16(b) of the MergerExchange Act. The surrender For the avoidance of a Warrant doubt, all Company Warrants that are not In-the-Money Warrants shall be terminated without payment of any consideration and without any further liability to the Company in exchange for or the Surviving Corporation and shall not be accelerated, and the holders of Company Warrants shall be entitled to the In-the-Money Warrant Consideration shall be deemed a release of any and all rights the holder had or may have had in respect of such Warrant. All amounts payable pursuant to this Section 5.2(e1.9 only to the extent such Company Warrants are In-the-Money Warrants. (b) The Company shall use commercially reasonable efforts to cause each holder of a Company Warrant to execute a written acknowledgment of such holder that (i) the payment of the In-the-Money Warrant Consideration, if any, will satisfy in full the Company’s obligation to such person pursuant to such Company Warrant and (ii) subject to the payment of the In-the-Money Warrant Consideration, if any, such Company Warrant held by such holder shall, without any action on the part of the Company or the holder, be deemed terminated, canceled, void and of no further force and effect as between the Company and the holder and neither party shall have any further rights or obligations with respect thereto and (iii) that any Company Warrant held by such holder that is not an In-the-Money Warrant shall be subject canceled without payment of any consideration and without any further liability to any required -------------- withholding of taxes and shall be paid without interestthe Company or the Surviving Corporation.

Warrants. Subject A. The Warrants shall be constituted as 1,193,581 Series "I" Warrants entitling the holders to subscribe for shares of the common stock, $0.001 par value per share (the "Common Stock") of the Company at a fixed price of $0.01 per share (subject to the provisions of the Schedule hereto) at any time prior to 5:00 p.m. (Tulsa, Oklahoma time) on April 30, 2007, the final date for exercise of a Warrant being the "Expiration Date" and the price payable upon exercise of a Warrant being the "Subscription Price". B. The Warrants shall be issued as follows: (i) Each of the Warrant Holders agrees that immediately upon the Offer being declared unconditional as provided in Section 5.3, at 2.3 of the Effective TimeExchange and Merger Agreement, each -------- ----------- holder of a then-outstanding warrant to purchase shares of Common Stock under any agreement or arrangement between such holder and the Company (collectively, the "Warrant Agreements") (true and correct copies of which have been provided ------------------ to Purchaser by the Company), to the extent then exercisable (individually, a "Warrant" and collectively, the "Warrants"), Loan Note shall be cancelled canceled and shall ------- -------- automatically be converted solely into the right to receivereceive one Warrant of the Company having the terms provided in this Agreement, at the Effective Time Loan Notes shall cease to exist, and each holder of a certificate representing any such Loan Notes shall thereafter cease to have any rights with respect to such Loan Notes, except the right to receive the Warrants of the Company upon the surrender of such certificate in accordance with paragraph (subject to any applicable withholding tax)iii) below. (ii) On or after the Offer being declared unconditional, cash in an amount equal each person who was immediately before that time a holder of record of Loan Notes may deliver to the excessCompany a letter of transmittal duly executed and completed in accordance with the instructions thereto, if any, together with such holders' certificates representing such Loan Notes and the Company shall deliver to such holders certificates in respect of the Warrants of the Company to which such holders are then entitled. C. Each of the Warrant Holders represents and agrees as follows: (i) It is the Merger Consideration over sole legal and beneficial owner of the Loan Notes registered in its name, free from any encumbrance arising by, through or under such holder, but not otherwise.. (ii) It has the per share requisite power and authority to enter into and perform this Agreement and this Agreement and any other documents executed by it in connection with this Agreement will, when executed, constitute binding obligations of the Warrant Holder enforceable in accordance with their respective terms. (iii) It is an "accredited investor" as that term is defined in the Securities Act of 1933, as amended, and is acquiring the Warrants for its own account, and has received all information it believes necessary to evaluate its investment in the Warrants. (iv) Each of the Warrant Holders hereby acknowledges and confirms that the Warrants and the Common Stock, whether issued or arising as a consequence of exercise price of such Warrant the Warrants will be "restricted securities" under the United States Securities Act of 1933 (such amount being hereinafter referred to as the "Warrant ------- Consideration"amended) and thereupon each Warrant shall terminate that the ability to resell such Warrants and each holder ------------- thereof shall have no further rights to any such Common Stock with respect thereto. In addition, any such Warrants which are not exercisable at will therefore be limited. D. Each of Alliance and the Effective Time shall be cancelled Company represents and each holder thereof shall have no further rights to any Common Stock with respect thereto. Payment for Warrants shall be agrees as follows: (i) The representations and warranties made by each of them in the Company, subject to the terms Exchange and conditions Merger Agreement are true and correct. (ii) The execution and performance of this Agreement by each of them have been duly and validly authorized by the provisions board of directors of each of them, and no other corporate action is necessary to authorize the execution, delivery and performance of this Agreement by each of them. Each of them has full, absolute and unrestricted right, power and authority to execute and perform this Agreement and to carry out the transactions contemplated hereby. This Agreement has been duly and validly executed by each of them and this Agreement and any other documents executed by them in connection with this Agreement is constitute valid and binding obligations of each of them, enforceable in accordance with their respective terms. (iii) They will not modify or amend the terms of the applicable Warrant Agreement, as soon as practicable after consummation Offer or the Exchange and Merger Agreement without the consent of the Merger. The surrender of a Warrant to the Company in exchange for the Warrant Consideration shall be deemed a release of any and all rights the holder had or may have had in respect of such Warrant. All amounts payable pursuant to this Section 5.2(e) shall be subject to any required -------------- withholding of taxes and shall be paid without interestHolders.

Warrants. Subject (a) In the event Wayfarer consummates an Offer, the Warrantholders agree to Section 5.3sell to Wayfarer, at the Effective Time, each -------- ----------- holder of a then-outstanding warrant and Wayfarer agrees to purchase shares from the Warrantholders, all of Common Stock under any agreement or arrangement the Warrants. The purchase price per Warrant shall be equal to $2.55 per Warrant, which represents the difference between such holder the Offer Price and the Company exercise price of the Warrant (collectively, as adjusted and in effect as of the "Warrant Agreements") (true and correct copies date of which have been provided ------------------ to Purchaser this Agreement). The purchase price for the Warrants shall be paid by the Company), Wayfarer to the extent then exercisable (individually, a "Warrant" and collectively, Warrantholders by official bank check or cashier's check as soon after the "Warrants"), Acceptance Date as shall be cancelled and practicable (but in no event later than the next business day after the Acceptance Date). (b) The obligation of Wayfarer to consummate the purchase of the Warrants on the terms described above shall ------- -------- automatically be converted into the right to receive, at the Effective Time (subject to any applicable withholding tax), cash in an amount equal to the excess, if any, satisfaction or waiver of the following conditions: (i) the Merger Consideration over Offer shall have been consummated; (ii) the per share exercise price representations and warranties made by FCCC in sections 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.14 and 8.16, and by the Sellers in sections 7.1, 7.2, 7.3 and 7.4, shall have been true and correct when made and shall remain true and correct as of such Warrant the Acceptance Date; (such amount being hereinafter iii) the other representations and warranties made herein by FCCC and the Sellers (other than those referred to as in the "Warrant ------- Consideration") preceding clause (ii)), and thereupon each Warrant shall terminate and each holder ------------- thereof shall have no further rights the statements contained in the schedules to any Common Stock with respect thereto. In addition, any such Warrants which are not exercisable at the Effective Time shall be cancelled and each holder thereof shall have no further rights to any Common Stock with respect thereto. Payment for Warrants shall be made by the Company, subject to the terms and conditions of this Agreement and the provisions of the applicable Warrant Agreement, as soon as practicable after consummation of the Merger. The surrender of a Warrant or in any other document furnished to the Company in exchange for the Warrant Consideration shall be deemed a release of any and all rights the holder had or may have had in respect of such Warrant. All amounts payable Wayfarer pursuant to this Section 5.2(eAgreement, shall have been true and correct in all material respects when made and shall remain true and correct as of the Acceptance Date; (iv) FCCC and the Sellers shall have performed and complied with all covenants, agreements and conditions required by this Agreement to be performed or complied with by such parties; and (v) the Warrantholders shall have delivered to Wayfarer the Warrants, duly endorsed by the Warrantholders to effect the transfer of the Warrants to Wayfarer. (c) Each of FCCC and the Sellers agrees that, in connection with Wayfarer's purchase of the Warrants, they shall take such action and execute such documents as shall be subject reasonably requested by Wayfarer to effect the termination of any required -------------- withholding existing registration rights held by the Sellers with respect to the shares of taxes and shall be paid without interestFCCC Common Stock issuable upon exercise of the Warrants or otherwise.

Warrants. Subject Pursuant to Section 5.3, at the Effective Timeterms of each of the Warrants, each -------- ----------- holder of a then-outstanding warrant the Securityholders, with respect to purchase shares each of Common Stock under the Warrants held by them, hereby: (a) irrevocably waives any agreement or arrangement between such holder and the Company (collectively, the "Warrant Agreements") (true and correct copies of which have been provided ------------------ to Purchaser by the Company), all notice provisions applicable to the extent then exercisable Contemplated Transactions that are set forth in any of the Warrants; (individuallyb) agrees that, a "Warrant" and collectivelycontingent upon the consummation of the Contemplated Transactions, each of the "Warrants"), Warrants held by such Securityholder shall be terminated and cancelled and shall ------- -------- automatically be converted into and represent solely the right to receivereceive the Warrant Distributions in accordance with Section 3(c) of the 2021 Pre-Funded Warrants, at Section 2(c) of the Effective Time 2021 Non-Pre-Funded Warrants, Section 3(c) of the 2020 Pre-Funded Warrants, Section 2(c) of the 2020 Non-Pre-Funded Warrants and Section 2(c) of the 2019 Non-Pre-Funded Warrants, as the case may be; (subject c) irrevocably waives all other rights under each of the Warrants and acknowledges that such Securityholder’s right to any applicable withholding tax), cash in an amount equal to receive the excessWarrant Distributions, if anyand when payable or issuable following the consummation of the Contemplated Transactions, shall fully satisfy any and all of (i) the Merger Consideration over (ii) the per share exercise price of Company’s obligations to such Warrant (such amount being hereinafter referred to as the "Warrant ------- Consideration") Securityholder pursuant and thereupon each Warrant shall terminate and each holder ------------- thereof shall have no further rights to any Common Stock with respect thereto. In additionto each of the Warrants, any such Warrants which are not exercisable at the Effective Time shall be cancelled and each holder thereof shall have no further rights to any Common Stock with respect thereto. Payment for Warrants shall be made by that none of the Company, subject to its successors and permitted assigns and, for the terms and conditions avoidance of this Agreement and the provisions doubt, Purchaser or any other acquiror of any of the applicable Warrant Agreement, as soon as practicable after consummation Company’s assets shall have any further obligation with respect to any of the Merger. The surrender of a Warrant to the Company in exchange for the Warrant Consideration shall be deemed a release of Warrants; and (d) further acknowledges and irrevocably waives any and all rights the holder had or breaches and events of default that may have had in respect occurred under any of such Warrant. All amounts payable pursuant to this Section 5.2(e) shall be subject to any required -------------- withholding of taxes and shall be paid without interestthe Warrants.

Warrants. Subject to Section 5.31.2 hereof, upon the execution of this Agreement by the Required Holders, the Warrants are hereby amended as follows: (i) The first sentence of Section 2(c) is hereby deleted in its entirety and replaced with the following: “This Warrant may be exercised, in whole or in part, at the Effective Time, each -------- ----------- holder any time by means of a then“cashless exercise” in which the Holder shall be entitled to receive a certificate for the number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where: (A) = the VWAP on the Trading Day immediately preceding the date of such election; (B) = the Exercise Price of this Warrant, as adjusted; and (X) = the number of Warrant Shares issuable upon exercise of this Warrant in accordance with the terms of this Warrant by means of a cash exercise rather than a cashless exercise.” (ii) The tenth sentence of Section 2(d) is hereby deleted in its entirety and replaced with the following: “The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(d), provided that the Beneficial Ownership Limitation in no event exceeds 19.99% of the number of shares of the Common Stock outstanding warrant immediately after giving effect to purchase the issuance of shares of Common Stock under any agreement or arrangement between such holder and the Company (collectively, the "upon exercise of this Warrant Agreements") (true and correct copies of which have been provided ------------------ to Purchaser held by the Company), to the extent then exercisable (individually, a "Warrant" and collectively, the "Warrants"), shall be cancelled and shall ------- -------- automatically be converted into the right to receive, at the Effective Time (subject to any applicable withholding tax), cash in an amount equal to the excess, if any, of (i) the Merger Consideration over (ii) the per share exercise price of such Warrant (such amount being hereinafter referred to as the "Warrant ------- Consideration") and thereupon each Warrant shall terminate and each holder ------------- thereof shall have no further rights to any Common Stock with respect thereto. In addition, any such Warrants which are not exercisable at the Effective Time shall be cancelled and each holder thereof shall have no further rights to any Common Stock with respect thereto. Payment for Warrants shall be made by the Company, subject to the terms and conditions of this Agreement Holder and the provisions of this Section 2(d) shall continue to apply.” (iii) The first sentence of Section 2(e)(iv) is hereby deleted in its entirety and replaced with the applicable following: “In addition to any other rights available to the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder a certificate or the certificates representing the Warrant AgreementShares pursuant to an exercise on or before the Warrant Share Delivery Date, as soon as practicable and if after consummation such date the Holder is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Merger. The surrender of Warrant Shares which the Holder anticipated receiving upon such exercise (a Warrant “Buy-In”), then the Company shall (A) pay in cash to the Company in exchange Holder the amount by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying (1) the number of Warrant Consideration Shares that the Company was required to deliver to the Holder in connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, (B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored or deliver to the Holder the number of shares of Common Stock that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder, and (C) unless Holder elected to have the Warrant reinstated under clause (B), if requested by Holder purchase the number of Warrant Shares for which such exercise was not honored for the price at which the sell order giving rise to such purchase obligation was executed.” (iv) The first sentence of Section 3(a) is hereby deleted in its entirety and replaced with the following: “If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise make a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares or (iv) issues by reclassification of shares of the Common Stock any shares of capital stock of the Company, then in each case the formula for determining the Exercise Price shall be deemed modified by multiplying each of the fixed numbers in the formula by a release fraction of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately after such event.” (v) The first sentence of Section 3(b) is hereby deleted in its entirety and replaced with the following: “If the Company, at any time prior to the Termination Date, shall distribute to all holders of Common Stock (and all not to Holders of the Warrants) evidences of its indebtedness or assets (including cash and cash dividends) or rights or warrants to subscribe for or purchase any security other than the holder had or may have had in respect of such Warrant. All amounts payable pursuant to this Section 5.2(e) Common Stock (which shall be subject to any required -------------- withholding of taxes and Section 3(a)), then in each such case at each time this Warrant is exercised the Exercise Price determined in accordance with the formula shall be paid without interestadjusted by multiplying such Exercise Price by a fraction of which the denominator shall be the Exercise Price as determined by the formula, and of which the numerator shall be such Exercise Price less the per share fair market value at the record date(s) fixed for determination of stockholders entitled to receive the distribution(s) of the portion of such assets or evidence of indebtedness so distributed applicable to one outstanding share of the Common Stock (determined by dividing the amount distributed by the then issued and outstanding shares of Common Stock) as determined by the Board of Directors in good faith.”

Warrants. Subject (a) Not later than 30 days prior to the Effective Time, the Company will send a notice to the holders of outstanding warrants to purchase shares of Company Common Stock (the "Company Warrants"): (i) specifying that such warrants will not be assumed in connection with the Merger, and (ii) specifying that any Company Warrants outstanding as of the Effective Time will terminate and be cancelled at such time and represent only the right to receive the consideration, if any, specified in this Section 5.3, at 3.6(a) in accordance with this Agreement. At the Effective Time, each -------- ----------- Company Warrant will, by virtue of the Merger and without any action on the part of the holder of a then-outstanding warrant to purchase shares of Common Stock under any agreement or arrangement between such holder and the Company (collectivelythereof, the "Warrant Agreements") (true and correct copies of which have been provided ------------------ to Purchaser by the Company), to the extent then exercisable (individually, a "Warrant" and collectively, the "Warrants"), shall be cancelled and shall ------- -------- automatically be converted into into, and represent only, the right to receive, at upon delivery thereof to the Effective Time (subject to any applicable withholding tax)Company, cash in an amount in cash equal to the excess, if any, of (i) the product of the Merger Consideration multiplied by the number of shares of Company Common Stock issuable upon exercise of such Company Warrant immediately prior to the Effective Time over (ii) the per share aggregate exercise price of all such shares of Company Common Stock exercisable under such Company Warrant (such immediately prior to the Effective Time. The aggregate amount being payable pursuant to this Section 3.6(a) will hereinafter be referred to as the "Warrant ------- ConsiderationCash-Out Amount." (b) and thereupon each Warrant shall terminate and Promptly following the Effective Time, the Parent will cause the Paying Agent to mail to each holder ------------- thereof shall have no further rights to any Common Stock with respect thereto. In addition, any such Warrants which are not exercisable at (as of the Effective Time shall be cancelled and each holder thereof shall have no further rights to any Common Stock with respect thereto. Payment for Warrants shall be made by the Company, subject to the terms and conditions of this Agreement and the provisions of the applicable Warrant Agreement, as soon as practicable after consummation of the Merger. The surrender Time) of a Company Warrant if converted into the right to the Company in exchange for receive the Warrant Consideration shall Cash-Out Amount pursuant to Section 3.6(a), (i) a letter of transmittal (which will be deemed a release of any in such form and all rights have such other provisions as the holder had or Parent may have had reasonably specify), and (ii) instructions for use in receiving cash payable in respect of such WarrantCompany Warrants. All amounts Upon the delivery of such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, together with the documentation representing the Company Warrant surrendered thereby, to the Paying Agent, the holders of Company Warrant will be entitled to receive the Warrant Cash-Out Amount payable to them in respect of such Company Warrants pursuant to this Section 5.2(e) shall be subject to any required -------------- withholding of taxes and shall be paid without interest3.6(a).

Warrants. Subject (a) Target shall adopt such resolutions or take such other actions as are required to Section 5.3adjust the terms of all outstanding Warrants to provide that, effective at the Effective Time, (i) each -------- ----------- holder of a then-outstanding warrant to purchase Common Stock listed on Schedule 3.2(b) (a "Warrant") whether --------------- or not then exercisable, shall become fully exercisable, (ii) each Warrant that is then outstanding shall be canceled and (iii) in consideration of such cancellation, and except to the extent that Parent and the holder of any such Warrant otherwise agree, Parent shall pay, promptly after the Effective Time, to such holders of Warrants an amount in respect thereof equal to the product of (x) the excess of the Per Share Merger Consideration over the exercise price thereof and (y) the number of shares of Common Stock under subject thereto (such payment to be net of taxes required by law to be withheld with respect thereto); provided that the -------- foregoing shall be subject to the obtaining of any agreement necessary consents of holders of Warrants, it being agreed that Target and Parent will use their reasonable best efforts to obtain any such consents; and provided further -------- ------- that Target shall not be required to make any payments in connection with obtaining such consents. Target shall not grant any additional warrants or arrangement between similar rights on or after the date hereof. (b) Notwithstanding anything to the contrary set forth in Section 2.5(a), no later than the earlier of (i) December 31, 2001, or (ii) the date that AP NH, LLC exercises any of the Note Warrants (as defined below), Target and AP NH, LLC shall enter into such holder and the Company documentation (collectively, the "Warrant AgreementsAmendment") (true and correct copies of which have been provided ------------------ as is necessary to Purchaser by the Company), effect an amendment to the extent then exercisable Warrant held by AP NH, LLC such that (individuallyi) a portion of the Warrants held by AP NH, a "Warrant" and LLC which represent the right to acquire an aggregate of 341,464 Common Shares (collectively, the "Note Warrants")) held by AP NH, LLC as of the date of this First Amendment, whether or not then exercisable, shall become fully exercisable, (ii) each Note Warrant that is then outstanding shall be cancelled canceled and shall ------- -------- automatically be converted into the right to receive(iii) in consideration of such cancellation, at the sole and exclusive option of Parent, Parent shall, promptly after the Effective Time Time, either (subject A) pay to any applicable withholding taxAP NH, LLC the amounts payable with respect to the Note Warrants as provided in Section 2.5(a), cash or (B) deliver to AP NH, LLC a subordinated note in the aggregate principal amount of $1,400,000 (the "Subordinated Note") from Parent or an amount equal Affiliate of Parent which will directly own the Mortgaged Property (as defined below) after the Merger, which Subordinated Note shall contain the terms set forth in Section 2.5(c) of this First Amendment. The "Mortgaged Property" shall consist of the land and improvements known as the Miraval Spa and Resort, which property is comprised of a total of 106 guest rooms and other buildings related to the excessMiraval Spa and Resort business upon 130 acres of land. Notwithstanding this Section 2.5(b), if any, of (i) the Merger Consideration over (ii) the per share exercise price of such Warrant (such amount being hereinafter referred to as the "Warrant ------- Consideration") and thereupon each Warrant shall terminate and each holder ------------- thereof shall have no further rights to any Common Stock with respect thereto. In addition, any such Warrants which are not exercisable at the Effective Time Amendment shall be cancelled null, void and each holder thereof shall have of no further rights to any Common Stock with respect thereto. Payment for Warrants shall be made by effect if the Company, subject to the terms and conditions of this Agreement and the provisions of the applicable Warrant Original Agreement, as soon as practicable after consummation of the Merger. The surrender of a Warrant to the Company amended by this First Amendment, is terminated in exchange for the Warrant Consideration shall be deemed a release of any and all rights the holder had or may have had in respect of such Warrant. All amounts payable pursuant to this Section 5.2(e) shall be subject to any required -------------- withholding of taxes and shall be paid without interestaccordance with Article VII thereof.

Warrants. Subject (a) Promptly following the execution of this Agreement, the Company shall use commercially reasonable efforts to Section 5.3, ensure that at the Effective Appointment Time, all Company Warrants shall be terminated. In consideration of such termination, each -------- ----------- holder of a thenan In-outstanding warrant the-Money Warrant terminated in accordance with this Section 2.8 will be entitled to purchase shares receive in settlement of Common Stock under any agreement or arrangement between such holder and In-the-Money Warrant, as promptly as practicable following the Company (collectively, the "Warrant Agreements") (true and correct copies of which have been provided ------------------ to Purchaser by the Company), to the extent then exercisable (individuallyAppointment Time, a "Warrant" and collectivelycash payment from the Payment Fund, the "Warrants"), shall be cancelled and shall ------- -------- automatically be converted into the right to receive, at the Effective Time (subject to any applicable required withholding tax)of taxes, cash in an amount equal to the excess, if any, product of (i) the Merger Consideration over total number of shares of Company Common Stock otherwise issuable upon exercise of such In-the-Money Warrant and (ii) the excess of the Offer Price over the applicable exercise price per share of Company Common Stock otherwise issuable upon exercise price of such In-the-Money Warrant (such amount being hereinafter referred to as the "Warrant ------- ConsiderationIN-THE-MONEY WARRANT CONSIDERATION") and thereupon each Warrant shall terminate and each holder ------------- thereof shall have no further rights ); provided, however, that with respect to any Common Stock with respect thereto. In additionperson subject to Section 16(a) of the Exchange Act, any such Warrants which are not exercisable at the Effective Time amount shall be cancelled and each holder thereof shall have no further rights to any Common Stock with respect thereto. Payment for Warrants shall be made by the Company, subject to the terms and conditions of this Agreement and the provisions of the applicable Warrant Agreement, paid as soon as practicable after consummation the first date payment can be made without liability to such person under Section 16(b) of the MergerExchange Act. The surrender For the avoidance of a Warrant doubt, all Company Warrants that are not In-the-Money Warrants shall be terminated without payment of any consideration and without any further liability to the Company in exchange for or the Surviving Corporation and shall not be accelerated, and the holders of Company Warrants shall be entitled to the In-the-Money Warrant Consideration shall be deemed a release of any and all rights the holder had or may have had in respect of such Warrant. All amounts payable pursuant to this Section 5.2(e2.8 only to the extent such Company Warrants are In-the-Money Warrants. (b) The Company shall use commercially reasonable efforts to cause each holder of a Company Warrant to execute a written acknowledgment of such holder that (i) the payment of the In-the-Money Warrant Consideration, if any, will satisfy in full the Company's obligation to such person pursuant to such Company Warrant and (ii) subject to the payment of the In-the-Money Warrant Consideration, if any, such Company Warrant held by such holder shall, without any action on the part of the Company or the holder, be deemed terminated, canceled, void and of no further force and effect as between the Company and the holder and neither party shall have any further rights or obligations with respect thereto and (iii) that any Company Warrant held by such holder that is not an In-the-Money Warrant shall be subject canceled without payment of any consideration and without any further liability to any required -------------- withholding of taxes and the Company or the Surviving Corporation. Such written acknowledgment shall be paid without interest.substantially in the form attached hereto as Exhibit C.