Common use of Payment for Tender Shares in Excess of the Offer Price Clause in Contracts

Payment for Tender Shares in Excess of the Offer Price. Each Stockholder severally (and not jointly) hereby agrees that, if the Merger Agreement is terminated pursuant to Section 8.01(e) or (f) of the Merger Agreement, fifty percent (50%) of any incremental value such Stockholder actually receives for its equity in the Company (including but not limited to any Shares, Company Options and Company Warrants beneficially Owned by such Stockholder) resulting from or attributable to an Acquisition Proposal (other than with Parent or Purchaser) that is entered into or consummated within six months of the termination of the Merger Agreement that exceeds $8.25 per Common Share or $18.04 per Preferred Share (100% of such excess amount with respect to the Common Shares, Company Options, Company Warrants and the Preferred Shares, as applicable, collectively referred to as the "EXCESS AMOUNT") shall belong to Parent. Each Stockholder severally (and not jointly) accordingly agrees to hold in trust for the benefit of Parent, and to remit to Parent (in the same form of consideration as received by the Stockholder) within three Business Days of any receipt thereof, fifty percent (50%) of any Excess Amount or Amounts that such Stockholder actually receives from any Person. In the event of any change in the number of issued and outstanding Shares by reason of any stock dividend, subdivision, merger, recapitalization, combination, conversion or exchange of shares, or any other change in the corporate or capital structure of the Company (including, without limitation, the declaration or payment of a dividend of cash or securities) which would have the effect of diluting or otherwise adversely affecting Parent's rights and privileges under this Section 1.8, the Excess Amount due hereunder shall be appropriately and equitably adjusted to restore to Parent its rights and privileges under this Section 1.8. Each Stockholder severally (and not jointly) hereby agrees to reimburse Parent and Purchaser for any fees and expenses (including reasonable attorneys fees) incurred by Parent and Purchaser in connection with any successful litigation, dispute or other attempt to recover the portion of the Excess Amount due from such Stockholder pursuant to this Section 1.8 in the event that Stockholder fails to deliver such Excess Amount to Parent upon written demand.

Payment for Tender Shares in Excess of the Offer Price. Each Stockholder severally (and not jointly) hereby agrees that, if the Merger Agreement is terminated pursuant to Section 8.01(eSECTION 8.01(E) or (fF) of the Merger Agreement, fifty percent (50%) of any incremental value such Stockholder actually receives for its equity in the Company (including but not limited to any Shares, Company Options and Company Warrants beneficially Owned by such Stockholder) resulting from or attributable to an Acquisition Proposal (other than with Parent or Purchaser) that is entered into or consummated within six months of the termination of the Merger Agreement that exceeds $8.25 per Common Share or $18.04 per Preferred Share (100% of such excess amount with respect to the Common Shares, Company Options, Company Warrants and the Preferred Shares, as applicable, collectively referred to as the "EXCESS AMOUNT") shall belong to Parent. Each Stockholder severally (and not jointly) accordingly agrees to hold in trust for the benefit of Parent, and to remit to Parent (in the same form of consideration as received by the Stockholder) within three Business Days of any receipt thereof, fifty percent (50%) of any Excess Amount or Amounts that such Stockholder actually receives from any Person. In the event of any change in the number of issued and outstanding Shares by reason of any stock dividend, subdivision, merger, recapitalization, combination, conversion or exchange of shares, or any other change in the corporate or capital structure of the Company (including, without limitation, the declaration or payment of a dividend of cash or securities) which would have the effect of diluting or otherwise adversely affecting Parent's rights and privileges under this Section SECTION 1.8, the Excess Amount due hereunder shall be appropriately and equitably adjusted to restore to Parent its rights and privileges under this Section SECTION 1.8. Each Stockholder severally (and not jointly) hereby agrees to reimburse Parent and Purchaser for any fees and expenses (including reasonable attorneys fees) incurred by Parent and Purchaser in connection with any successful litigation, dispute or other attempt to recover the portion of the Excess Amount due from such Stockholder pursuant to this Section SECTION 1.8 in the event that Stockholder fails to deliver such Excess Amount to Parent upon written demand.

Payment for Tender Shares in Excess of the Offer Price. Each Stockholder severally (and not jointly) hereby agrees that, if the Merger Agreement is terminated pursuant to Section 8.01(e) or (f) of the Merger Agreement, fifty percent (50%) of any incremental value such Stockholder actually receives for its equity in the Company (including but not limited to any Shares, Company Options and Company Warrants beneficially Owned by such Stockholder) resulting from or attributable to an Acquisition Proposal (other than with Parent or Purchaser) that is entered into or consummated within six months of the termination of the Merger Agreement that exceeds $8.25 per Common Share or $18.04 per Preferred Share (100% of such excess amount with respect to the Common Shares, Company Options, Company Warrants and the Preferred Shares, as applicable, collectively referred to as the "EXCESS AMOUNT") shall belong to Parent. Each Stockholder severally (and not jointly) accordingly agrees to hold in trust for the benefit of Parent, and to remit to Parent (in the same form of consideration as received by the Stockholder) within three Business Days of any receipt thereof, fifty percent (50%) of any Excess Amount or Amounts that such Stockholder actually receives from any Person. In the event of any change in the number of issued and outstanding Shares by reason of any stock dividend, subdivision, merger, recapitalization, combination, conversion or exchange of shares, or any other change in the corporate or capital structure of the Company (including, without limitation, the declaration or payment of a dividend of cash or securities) which would have the effect of diluting or otherwise adversely affecting Parent's rights and privileges under this Section 1.8, the Excess Amount due hereunder shall be appropriately and equitably adjusted to restore to Parent its rights and privileges under this Section 1.8. Each Stockholder severally (and not jointly) hereby agrees to reimburse Parent and Purchaser for any fees and expenses (including reasonable attorneys fees) incurred by Parent and Purchaser in connection with any successful litigation, dispute or other attempt to recover the portion of the Excess Amount due from such Stockholder pursuant to this Section 1.8 in the event that Stockholder fails to deliver such Excess Amount to Parent upon written demand.without

Payment for Tender Shares in Excess of the Offer Price. Each Stockholder severally (and not jointly) hereby agrees that, if the Merger Agreement is terminated pursuant to Section 8.01(eSECTION 8.01(E) or (fF) of the Merger Agreement, fifty percent (50%) of any incremental value such Stockholder actually receives for its equity in the Company (including but not limited to any Shares, Company Options and Company Warrants beneficially Owned by such Stockholder) resulting from or attributable to an Acquisition Proposal (other than with Parent or Purchaser) that is entered into or consummated within six months of the termination of the Merger Agreement that exceeds $8.25 per Common Share or $18.04 per Preferred Share (100% of such excess amount with respect to the Common Shares, Company Options, Company Warrants and the Preferred Shares, as applicable, collectively referred to as the "EXCESS AMOUNT") shall belong to Parent. Each Stockholder severally (and not jointly) accordingly agrees to hold in trust for the benefit of Parent, and to remit to Parent (in the same form of consideration as received by the Stockholder) within three Business Days of any receipt thereof, fifty percent (50%) of any Excess Amount or Amounts that such Stockholder actually receives from any Person. In the event of any change in the number of issued and outstanding Shares by reason of any stock dividend, subdivision, merger, recapitalization, combination, conversion or exchange of shares, or any other change in the corporate or capital structure of the Company (including, without limitation, the declaration or payment of a dividend of cash or securities) which would have the effect of diluting or otherwise adversely affecting Parent's rights and privileges under this Section 1.8SECTION 1.6, the Excess Amount due hereunder shall be appropriately and equitably adjusted to restore to Parent its rights and privileges under this Section 1.8SECTION 1.6. Each Stockholder severally (and not jointly) hereby agrees to reimburse Parent and Purchaser for any fees and expenses (including reasonable attorneys fees) incurred by Parent and Purchaser in connection with any successful litigation, dispute or other attempt to recover the portion of the Excess Amount due from such Stockholder pursuant to this Section 1.8 SECTION 1.6 in the event that Stockholder fails to deliver such Excess Amount to Parent upon written demand.