MERGER SUB WHICH, SINGULARLY OR
IN THE AGGREGATE, WOULD PREVENT OR MATERIALLY ADVERSELY AFFECT THE ABILITY OF
PURCHASER AND MERGER SUB TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.
3
SECTION 3.
TENDER OF THE SHARES.
(A)
EACH SHAREHOLDER HEREBY AGREES THAT, SUBJECT TO THE TERMS AND CONDITIONS
OF SECTION 10 HEREOF, (A) SUCH SHAREHOLDER SHALL VALIDLY TENDER, OR CAUSE TO BE
VALIDLY TENDERED, PURSUANT TO AND IN ACCORDANCE WITH THE TERMS OF THE OFFER, HIS
OR ITS SHARES INTO THE OFFER AS PROMPTLY AS PRACTICABLE, AND IN ANY EVENT NO
LATER THAN THE FIFTH BUSINESS DAY FOLLOWING THE COMMENCEMENT OF THE OFFER
PURSUANT TO SECTION 1.1 OF THE MERGER AGREEMENT AND RECEIPT OF THE APPLICABLE
TENDER OFFER DOCUMENTATION AND (B) SUCH SHAREHOLDER SHALL NOT WITHDRAW ANY
SHARES SO TENDERED UNLESS THIS AGREEMENT IS TERMINATED OR OTHERWISE TERMINATES
IN ACCORDANCE WITH ITS TERMS UNDER SECTION 10 HEREOF OR OTHERWISE OR THE OFFER
IS TERMINATED OR HAS EXPIRED WITHOUT MERGER SUB PURCHASING ALL SHARES VALIDLY
TENDERED IN THE OFFER AND NOT WITHDRAWN.
NOTWITHSTANDING THE FOREGOING, EACH
SHAREHOLDER MAY DECLINE TO TENDER, OR MAY WITHDRAW, ANY AND ALL OF SUCH
SHAREHOLDER'S SHARES IF, WITHOUT THE CONSENT OF SUCH SHAREHOLDER, MERGER SUB
AMENDS THE OFFER TO (I) REDUCE THE OFFER PRICE, (II) REDUCE THE NUMBER OF SHARES
SUBJECT TO THE OFFER, (III) CHANGE THE FORM OF CONSIDERATION PAYABLE IN THE
OFFER OR (IV) AMEND OR MODIFY ANY TERM OR CONDITION OF THE OFFER IN A MANNER
ADVERSE TO THE SHAREHOLDERS OF THE COMPANY (OTHER THAN INSIGNIFICANT CHANGES OR
AMENDMENTS OR OTHER THAN TO WAIVE ANY CONDITION OTHER THAN THE MINIMUM CONDITION
WHICH THE PARTIES AGREE CANNOT BE WAIVED OR REDUCED).
EACH SHAREHOLDER SHALL
GIVE MERGER SUB AT LEAST TWO (2) BUSINESS DAYS' PRIOR NOTICE OF ANY WITHDRAWAL
OF ITS SHARES PURSUANT TO THE IMMEDIATELY PRECEDING PROVISO.
(B)
NOTWITHSTANDING THE FOREGOING, AT NO TIME AND IN NO EVENT SHALL THE TOTAL
NUMBER OF SHARES RESTRICTED PURSUANT TO SECTION 3(A) HEREOF EXCEED NINETEEN AND
NINE-TENTHS PERCENT (19.9%) OF THE OUTSTANDING CAPITAL STOCK OF THE COMPANY,
INCLUDING BUT NOT LIMITED TO THE SHARES (THE "MAXIMUM RESTRICTED AMOUNT").
IN
THE EVENT THAT THE TOTAL NUMBER OF SHARES EXCEEDS THE MAXIMUM RESTRICTED AMOUNT,
MERGER SUB MAY, IN ITS SOLE AND ABSOLUTE DISCRETION DETERMINE WHICH SHARES SHALL
BE RESTRICTED PURSUANT TO SECTION 3(A).
MERGER SUB, IN ITS SOLE AND ABSOLUTE
DISCRETION, SHALL MAKE THE DETERMINATION OF WHETHER SHARES SUBJECT TO
RESTRICTION PURSUANT TO THIS SECTION 3 HAVE EQUALED OR EXCEEDED THE MAXIMUM
RESTRICTED AMOUNT.
SECTION 4.
TRANSFER OF THE SHARES.
(A)
PRIOR TO THE TERMINATION OF THIS AGREEMENT AND EXCEPT AS OTHERWISE
PROVIDED HEREIN, EACH OF THE SHAREHOLDERS AGREES THAT IT SHALL NOT:
(I) TRANSFER, ASSIGN, SELL, GIFT-OVER, PLEDGE, HYPOTHECATE, ENCUMBER OR
OTHERWISE DISPOSE OF, OR CONSENT TO ANY OF THE FOREGOING ("TRANSFER"), ANY OR
ALL OF THE SHARES, COMPANY OPTIONS OR OTHER RIGHTS TO ACQUIRE COMMON STOCK OR
ANY RIGHT OR INTEREST THEREIN; (II) ENTER INTO ANY CONTRACT, OPTION OR OTHER
AGREEMENT, ARRANGEMENT OR UNDERSTANDING WITH RESPECT TO