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notice. We will determine, in our discretion, all questions as to the form and
validity, including time of receipt, of notices of withdrawal. Our determination
of these matters will be final and binding.
5. ACCEPTANCE OF OPTIONS FOR EXCHANGE AND ISSUANCE OF NEW OPTIONS.
Upon the terms and subject to the conditions of this offer and as
promptly as reasonably practicable following the expiration date, we will accept
for exchange and cancel eligible options properly tendered and not validly
withdrawn before the expiration date. Subject to the terms of the offer, if your
properly tendered eligible options are accepted for exchange on the expiration
date of the offer, you will be granted new options on or about the first
business day that is at least six months and one day following the date we
accept options for exchange.
The exercise price of the new options will equal the fair market value
of our common stock on the date prior to the date we grant the new options. Our
common stock is currently traded on the Nasdaq National Market and fair market
value will be determined based upon the last reported sale price of our common
stock on such date. Accordingly, we cannot predict the exercise price of the new
options. If on the date we grant the new options our common stock is not traded
on the Nasdaq, National Market and is traded in the over-the-counter market,
fair market value will be the mean between the closing representative bid and
asked prices as of the date immediately preceding the date of grant. Therefore,
since we will not grant new options until at least six months and one day after
the date we cancel the options accepted for exchange, it is possible that the
new options may have a higher exercise price than some or all of your current
options. We recommend that you obtain current market quotations for our common
stock before deciding whether to tender your options.
For purposes of the offer, we will be deemed to have accepted for
exchange eligible options that are validly tendered and not properly withdrawn
as, if and when we give oral or written notice to the option holders of our
acceptance for exchange of such options, which may be by internal e-mail or
other internal corporate communication. Subject to our rights to extend,
terminate and amend the offer, we currently expect that we will accept promptly
after the expiration of the offer all properly tendered options that are not
validly withdrawn. Promptly after we accept tendered options for exchange, we
will send each tendering option holder a letter indicating the number of shares
subject to the options that we have accepted for exchange, the corresponding
number of shares that will be subject to the new options and the expected grant
date of the new options.
6. CONDITIONS OF THE OFFER.
Notwithstanding any other provision of the offer, we will not be
required to accept any options tendered for exchange, and we may terminate or
amend the offer, or postpone our acceptance and cancellation of any options
tendered for exchange, if at any time prior to the expiration date (1) any of
the following events has occurred, or has been determined by us to have
occurred, and (2) in our reasonable judgment in any such case and regardless of
the circumstances giving rise thereto, including any action or omission to act
by us, the occurrence