OR APPRAISAL FIRM SELECTED BY THE BUYER
AND REASONABLY ACCEPTABLE TO THE COMPANY AND PAID FOR BY THE COMPANY. THE
CLOSING OF ANY PURCHASE AND SALE SHALL OCCUR ON OR PRIOR TO THE DATE THAT THE
BUYER SHALL HAVE REDEEMED OR REPURCHASED SUCH NON-PRO-RATA REPURCHASED SHARES
(AS SPECIFIED IN A WRITTEN NOTICE TO THE
17
BUYER BY THE COMPANY), AT SUCH PLACE AS THE COMPANY AND THE BUYER MAY AGREE AND
PURSUANT TO A STOCK PURCHASE OR REDEMPTION AGREEMENT IN FORM AND SUBSTANCE
REASONABLY ACCEPTABLE TO THE COMPANY AND THE BUYER.
AT THE CLOSING, THE BUYER
AND/OR ITS AFFILIATES, AS APPLICABLE, SHALL ASSIGN THE RELEVANT EXCESS SHARES
THEN OWNED BY THEM TO THE COMPANY FREE AND CLEAR OF ALL LIENS, AND THE COMPANY
SHALL PAY THE PURCHASE PRICE FOR SUCH SHARES IN CASH OR OTHER IMMEDIATELY
AVAILABLE FUNDS. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE
COMPANY'S OBLIGATION TO REPURCHASE ANY SUCH EXCESS SHARES PURSUANT TO THIS
SECTION 4(H)(II) SHALL BE SUBJECT TO APPLICABLE LAW (INCLUDING THE PROVISIONS OF
SECTION 160 OF THE DELAWARE GENERAL CORPORATION LAW).
(i)
Standstill.
The Buyer hereby agrees that, during the period
commencing on the Closing Date and on the second annual anniversary thereof (the
"Standstill Period"), unless specifically invited in writing by the Company, the
Buyer will not, and will not permit any director, officer or Affiliate of the
Buyer to, in any manner, directly or indirectly (including by directing or
causing any other Person that is not the Buyer or a director, officer of
Affiliate of the Buyer to):
(I)
EFFECT OR SEEK, OFFER OR PROPOSE (WHETHER PUBLICLY OR OTHERWISE)
TO EFFECT, OR ANNOUNCE ANY INTENTION TO EFFECT OR CAUSE OR PARTICIPATE IN OR IN
ANY WAY ASSIST, FACILITATE OR ENCOURAGE ANY OTHER PERSON TO EFFECT OR SEEK,
OFFER OR PROPOSE (WHETHER PUBLICLY OR OTHERWISE) TO EFFECT OR PARTICIPATE IN,
(A) ANY ACQUISITION OF ANY SECURITIES (OR BENEFICIAL OWNERSHIP THEREOF) OR
RIGHTS OR OPTIONS TO ACQUIRE ANY SECURITIES (OR BENEFICIAL OWNERSHIP THEREOF) OF
THE COMPANY OR ANY OF ITS SUBSIDIARIES OR COMPANY CONTROLLED AFFILIATES IF,
AFTER GIVING EFFECT TO ANY SUCH ACQUISITION, THE BUYER AND/OR ANY BUYER
CONTROLLED ENTITY AND/OR CONTROL GROUP MEMBER, EITHER INDIVIDUALLY OR IN THE
AGGREGATE, WOULD BENEFICIALLY OWN MORE THAN FOUR AND NINETY-NINE ONE HUNDRETHS
PERCENT (4.99%) OF THE COMMON STOCK THEN OUTSTANDING, (B) ANY TENDER OR EXCHANGE
OFFER, MERGER OR OTHER BUSINESS COMBINATION INVOLVING THE COMPANY OR ANY OF ITS
SUBSIDIARIES OR COMPANY CONTROLLED AFFILIATES OR ANY DIVISION OR LINE OF
BUSINESS OF ANY THEREOF, (C) ANY RECAPITALIZATION, RESTRUCTURING, LIQUIDATION,
DISSOLUTION OR OTHER EXTRAORDINARY TRANSACTION WITH RESPECT TO THE COMPANY OR
ANY OF ITS SUBSIDIARIES OR COMPANY CONTROLLED AFFILIATES OR ANY DIVISION
THEREOF, OR (D) ANY "SOLICITATION" OF "PROXIES" (AS SUCH TERMS ARE USED IN THE
PROXY RULES OF THE SEC) OR CONSENTS TO VOTE ANY VOTING SECURITIES OF THE
COMPANY;
(II)
FORM, JOIN OR IN ANY WAY PARTICIPATE IN A "GROUP" (WITHIN THE
MEANING OF SECTION 13(D)(3) OF THE 1934 ACT) WITH RESPECT TO THE SECURITIES