(SUCH SHARES SO REDEEMED OR REPURCHASED, THE "NON-PRO-RATA
REPURCHASED SHARES") THE COMPANY SHALL, ON OR PRIOR TO THE DATE OF THE
REDEMPTION OR REPURCHASE OF SUCH NON-PRO-RATA REPURCHASED SHARES, PURCHASE THAT
PORTION OF THE SHARES OF COMPANY COMMON STOCK HELD BY THE BUYER AND/OR SUCH
AFFILIATES IN EXCESS OF 9.999% OF THE TOTAL OUTSTANDING COMMON STOCK OF THE
COMPANY FOR AN AGGREGATE CASH PURCHASE PRICE EQUAL TO (X) IN THE CASE OF ANY
PURCHASE OCCURRING DURING THE PERIOD COMMENCING ON THE CLOSING DATE AND ENDING
ON THE EIGHTEEN (18) MONTH ANNIVERSARY OF THE CLOSING DATE, THE GREATER OF THE
FAIR MARKET VALUE OF SUCH EXCESS SHARES AND THE PRICE PAID FOR THE SHARES
PURCHASED UNDER THIS AGREEMENT, AND (Y) IN THE CASE OF ANY PURCHASE OCCURRING AT
ANY TIME AFTER THE EIGHTEEN (18) MONTH ANNIVERSARY OF THE CLOSING DATE, THE FAIR
MARKET VALUE OF SUCH EXCESS SHARES. FOR PURPOSES OF THIS COMMITMENT, FAIR MARKET
VALUE SHALL MEAN (A) IF THE COMPANY'S COMMON STOCK IS TRADED ON AN ELIGIBLE
MARKET, THE PRICE WHICH REPRESENTS THE TRAILING 20-TRADING DAY AVERAGE OF THE
CLOSING "BID" PRICE (DETERMINED WITHOUT REGARD TO AFTER HOURS TRADING OR ANY
OTHER TRADING OUTSIDE OF THE REGULAR TRADING SESSION TRADING HOURS) OR (B) IF
NOT SO TRADED, THE FAIR MARKET VALUE OF SUCH SHARES ON SUCH DATE AS DETERMINED
IN GOOD FAITH BETWEEN THE BUYER AND THE COMPANY.
SHOULD THE COMPANY AND THE
BUYER NOT REACH AN AGREEMENT AS TO SUCH SHARES FAIR MARKET VALUE WITHIN 15 DAYS
FROM THE DATE THE COMPANY PROVIDED NOTICE TO THE BUYER PURSUANT TO
16
THIS COMMITMENT, THEN SUCH FAIR MARKET VALUE SHALL BE DETERMINED BY AN
INDEPENDENT, NATIONALLY RECOGNIZED INVESTMENT BANKING FIRM, ACCOUNTING FIRM 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 AS
SOON AS PRACTICABLE BUT NO LATER THAN 45 DAYS FROM THE DATE THAT THE COMPANY
PROVIDED NOTICE TO THE BUYER, 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)
STOCK CERTIFICATES.
THE COMPANY SHALL
INSTRUCT THE TRANSFER AGENT TO ISSUE THE STOCK CERTIFICATES REPRESENTING THE
PURCHASED SHARES AS REQUIRED BY THIS AGREEMENT AND TAKE SUCH ACTIONS AS SHALL BE
REQUESTED BY THE TRANSFER AGENT SUCH THAT SUCH STOCK CERTIFICATES SHALL BE
DELIVERED TO THE BUYER WITHIN FIVE (5)