Common use of Tender Offers Clause in Contracts

Tender Offers. If any shareholder of the Company makes a tender offer, including, without limitation, a “mini-tender” offer, such shareholder must comply with all of the provisions set forth in Regulation 14D of the Exchange Act, including, without limitation, disclosure and notice requirements, which would be applicable if the tender offer was for more than 5% of the outstanding securities of the Company, provided, however, that such documents are not required to be filed with the Securities and Exchange Commission. In addition, any such shareholder must provide notice to the Company at least 10 Business Days prior to initiating any such tender offer. If any shareholder initiates a tender offer without complying with the provisions set forth above (a “Non-Compliant Tender Offer”), the Company, in its sole discretion, shall have the right to redeem such non-compliant shareholder’s Shares and any Shares acquired in such tender offer (collectively, the “Tendered Shares”) at the lesser of (i) with respect to Common Shares, the price then being paid per Common Share purchased in the Company’s latest offering of Common Shares at full purchase price (not discounted for commission reductions nor for reductions in sale price permitted pursuant to a distribution reinvestment plan, if any), (ii) the fair market value of the Shares as determined by an independent valuation obtained by the Company or (iii) the lowest tender offer price offered in such Non-Compliant Tender Offer. The Company may purchase such Tendered Shares upon delivery of the purchase price to the stockholder initiating such Non-Compliant Tender Offer, and, upon such delivery, the Company may instruct any transfer agent to transfer such purchased Shares to the Company. In addition, any shareholder who makes a Non-Compliant Tender Offer shall be responsible for all expenses incurred by the Corporation in connection with the enforcement of the provisions of this Section 3.9, including, without limitation, expenses incurred in connection with the review of all documents related to such tender offer and expenses incurred in connection with any purchase of Tendered Shares by the Company. The Company maintains the right to offset any such expenses against the dollar amount to be paid by the Company for the purchase of Tendered Shares pursuant to this Section 3.9. In addition to the remedies provided herein, the Company may seek injunctive relief, including, without limitation, a temporary or permanent restraining order, in connection with any Non-Compliant Tender Offer.

Tender Offers. If any shareholder Shareholder of the Company COMPANY makes a tender offer, including, without limitation, a “"mini-tender” " offer, such shareholder Shareholder must comply with all of the provisions set forth in Regulation 14D of the Exchange ActEXCHANGE ACT, including, without limitation, disclosure and notice requirements, which would be applicable if the tender offer was for more than 5% of the outstanding securities of the CompanyCOMPANY, provided, however, that such documents are not required to be filed with the Securities and Exchange Commission. In addition, any such shareholder Shareholder must provide notice to the Company COMPANY at least 10 Business Days prior to initiating any such tender offer. If any shareholder Shareholder initiates a tender offer without complying with the provisions set forth above (a “"Non-Compliant Tender Offer”"), the CompanyCOMPANY, in its sole discretion, shall have the right to redeem such non-compliant shareholder’s Shareholder's Shares and any Shares acquired in such tender offer (collectively, the “Tendered Shares”"TENDERED SHARES") at the lesser of (i) with respect to Common Shares, the price then being paid per Common Share purchased in the Company’s COMPANY'S latest offering of Common Shares at full purchase price (not discounted for commission reductions nor for reductions in sale price permitted pursuant to a distribution reinvestment plan, if any), (ii) the fair market value of the Shares as determined by an independent valuation obtained by the Company COMPANY or (iii) the lowest tender offer price offered in such Non-Compliant Tender Offer. The Company COMPANY may purchase such Tendered Shares TENDERED SHARES upon delivery of the purchase price to the stockholder shareholder initiating such Non-Compliant Tender Offer, and, upon such delivery, the Company COMPANY may instruct any transfer agent to transfer such purchased Shares to the CompanyCOMPANY. In addition, any shareholder Shareholder who makes a Non-Compliant Tender Offer shall be responsible for all expenses incurred by the Corporation COMPANY in connection with the enforcement of the provisions of this Section 3.93.9 of this OPERATING AGREEMENT, including, without limitation, expenses incurred in connection with the review of all documents related to such tender offer and expenses incurred in connection with any purchase of Tendered Shares TENDERED SHARES by the CompanyCOMPANY. The Company COMPANY maintains the right to offset any such expenses against the dollar amount to be paid by the Company COMPANY for the purchase of Tendered Shares TENDERED SHARES pursuant to this Section 3.93.9 of this OPERATING AGREEMENT. In addition to the remedies provided herein, the Company COMPANY may seek injunctive relief, including, without limitation, a temporary or permanent restraining order, in connection with any Non-Compliant Tender Offer.

Tender Offers. If any shareholder (A) Upon commencement of the Company makes a tender offer, including, without limitation, a “mini-tender” offer, such shareholder must comply with all of the provisions set forth in Regulation 14D of the Exchange Act, including, without limitation, disclosure and notice requirements, which would be applicable if the tender offer was for more than 5% of the outstanding securities of the Company, provided, however, that such documents are not required to be filed with the Securities and Exchange Commission. In addition, any such shareholder must provide notice to the Company at least 10 Business Days prior to initiating any such tender offer. If any shareholder initiates a tender offer without complying for any securities held in the Trust that are Employer Stock, the Employer shall timely notify the Trustee in advance of the intended tender date and shall cause a copy of all materials to be sent to the Trustee. The Employer shall certify to the Trustee that the aforementioned materials represent the same information distributed to shareholders of Employer Stock. Based on these materials, the Trustee shall prepare a tender instruction form. The tender instruction form shall show the number of full and fractional shares of Employer Stock credited to the Participant’s Account, if the Plan uses share accounting, or, if accounting is by units of participation, that reflect the Participant’s proportional interest in the Stock Fund (both vested and unvested). The Employer shall cause tender materials to be sent to each Participant with an interest in the Stock Fund, together with the provisions set forth above foregoing tender instruction form, such materials and form to be returned to the Trustee or a designee. (a “Non-Compliant Tender Offer”), B) Each Participant with an interest in the Company, in its sole discretion, Stock Fund shall have the right to redeem direct the Trustee to tender or not to tender some or all of the shares of Employer Stock that are credited to his Account, if the Plan uses share accounting, or, if accounting is by units of participation, that reflect such non-compliant shareholderParticipant’s Shares proportional interest in the Stock Fund (both vested and unvested). Directions from a Participant to the Trustee concerning the tender of Employer Stock shall be communicated in writing, or by such other means agreed upon by the Trustee and the Employer. These directions shall be held in confidence by the Trustee and shall not be divulged to the Employer, or any Shares acquired officer or employee thereof, or any other person, except to the extent that the consequences of such directions are reflected in reports regularly communicated to any such persons in the ordinary course of the performance of the Trustee’s services hereunder. The Trustee shall tender or not tender shares of Employer Stock as directed by the Participant. Except as otherwise required by law, the Trustee shall not tender shares of Employer Stock that are credited to a Participant’s Account, if the Plan uses share accounting, or, if accounting is by units of participation, that reflect a Participant’s proportional interest in the Stock Fund for which the Trustee has received no direction from the Participant. (C) Except as otherwise required by law, the Trustee shall tender shares of Employer Stock not credited to Participants’ accounts in the same proportion as it tenders shares of Employer Stock credited to Participants’ accounts. (D) A Participant who has directed the Trustee to tender some or all of the shares of Employer Stock that reflect the Participant’s proportional interest in the Stock Fund may, at any time prior to the tender offer (collectivelywithdrawal date, direct the Trustee to withdraw some or all of such tendered shares, and the Trustee shall withdraw the directed number of shares from the tender offer prior to the tender offer withdrawal deadline. Prior to the withdrawal deadline, if any shares of Employer Stock not credited to Participants’ accounts have been tendered, the “Tendered Shares”Trustee shall redetermine the number of shares of Employer Stock that would be tendered under the previous paragraph if the date of the foregoing withdrawal were the date of determination, and withdraw from the tender offer the number of shares of Employer Stock not credited to Participants’ accounts necessary to reduce the amount of tendered Employer Stock not credited to Participants’ accounts to the amount so redetermined. A Participant shall not be limited as to the number of directions to tender or withdraw that the Participant may give to the Trustee. (E) at A direction by a Participant to the lesser Trustee to tender shares of (i) with respect Employer Stock that reflect the Participant’s proportional interest in the Stock Fund shall not be considered a written election under the Plan by the Participant to Common Shareswithdraw, or have distributed, any or all of his withdrawable shares. If the Plan uses share accounting, the price then being paid per Common Share purchased Trustee shall credit to the Participant’s Account the proceeds received by the Trustee in exchange for the shares of Employer Stock tendered from the Participant’s Account. If accounting is by units of participation, the Trustee shall credit to each proportional interest of the Participant from which the tendered shares were taken the proceeds received by the Trustee in exchange for the shares of Employer Stock tendered from that interest. Pending receipt of direction (through the Administrator) from the Participant or the named fiduciary, as provided in the Company’s latest offering of Common Shares at full purchase price (not discounted for commission reductions nor for reductions in sale price permitted pursuant Plan, as to a distribution reinvestment plan, if any), (ii) the fair market value which of the Shares as determined by an independent valuation obtained by remaining Permissible Investments the Company or (iii) the lowest tender offer price offered in such Non-Compliant Tender Offer. The Company may purchase such Tendered Shares upon delivery of the purchase price to the stockholder initiating such Non-Compliant Tender Offer, and, upon such deliveryproceeds should be invested in, the Company may instruct any transfer agent to transfer Trustee shall invest the proceeds in the Permissible Investment specified for such purchased Shares to purposes in the Company. In addition, any shareholder who makes a Non-Compliant Tender Offer shall be responsible for all expenses incurred by the Corporation in connection with the enforcement of the provisions of this Section 3.9, including, without limitation, expenses incurred in connection with the review of all documents related to such tender offer and expenses incurred in connection with any purchase of Tendered Shares by the Company. The Company maintains the right to offset any such expenses against the dollar amount to be paid by the Company for the purchase of Tendered Shares pursuant to this Section 3.9. In addition to the remedies provided herein, the Company may seek injunctive relief, including, without limitation, a temporary or permanent restraining order, in connection with any Non-Compliant Tender OfferService Agreement.

Tender Offers. If any shareholder (1) Upon commencement of the Company makes a tender offer, including, without limitation, a “mini-tender” offer, such shareholder must comply with all of the provisions set forth in Regulation 14D of the Exchange Act, including, without limitation, disclosure and notice requirements, which would be applicable if the tender offer was for more than 5% of the outstanding securities of the Company, provided, however, that such documents are not required to be filed with the Securities and Exchange Commission. In addition, any such shareholder must provide notice to the Company at least 10 Business Days prior to initiating any such tender offer. If any shareholder initiates a tender offer without complying for any securities held in the Trust that are Sponsor Stock, the Sponsor shall timely notify the Trustee in advance of the intended tender date and shall cause a copy of all materials to be sent to the Trustee. The Sponsor shall certify to the Trustee that the aforementioned materials represent the same information distributed to shareholders of Sponsor Stock. Based on these materials and after consultation with the provisions set forth above Sponsor the Trustee shall prepare a tender instruction form and shall provide a copy of all tender materials to be sent to each Participant with an interest in the Stock Fund, together with the foregoing tender instruction form, to be returned to the Trustee or its designee. The tender instruction form shall show the number of full and fractional shares of Sponsor Stock that reflect the Participants proportional interest in the Stock Fund (a “Non-Compliant Tender Offer”both vested and unvested), . (2) Each Participant with an interest in the Company, in its sole discretion, Stock Fund shall have the right to redeem direct the Trustee to tender or not to tender some or all of the shares of Sponsor Stock reflecting such non-compliant shareholderParticipant’s Shares proportional interest in the Stock Fund (both vested and unvested). Directions from a Participant to the Trustee concerning the tender of Sponsor Stock shall be communicated in writing, or by such other means as is agreed upon by the Trustee and the Sponsor. These directions shall be held in confidence by the Trustee and shall not be divulged to the Sponsor, or any Shares acquired officer or employee thereof, or any other person except to the extent that the consequences of such directions are reflected in reports regularly communicated to any such persons in the ordinary course of the performance of the Trustee's services hereunder. The Trustee shall tender offer (collectivelyor not tender shares of Sponsor Stock as directed by the Participant. Except as otherwise required by law, the “Tendered Shares”Trustee shall not tender shares of Sponsor Stock reflecting a Participant's proportional interest in the Stock Fund for which it has received no direction from the Participant. (3) at the lesser of (i) with respect to Common SharesExcept as otherwise required by law, the price then being paid per Common Share purchased in the Company’s latest offering Trustee shall tender that number of Common Shares at full purchase price (shares of Sponsor Stock not discounted for commission reductions nor for reductions in sale price permitted pursuant credited to a distribution reinvestment planParticipants’ accounts, if any), in the same proportion as the total number of shares of Sponsor Stock credited to Participants’ accounts for which it has received instructions from Participants. (ii4) A Participant who has directed the fair market value Trustee to tender some or all of the Shares shares of Sponsor Stock reflecting the Participant’s proportional interest in the Stock Fund may, at any time prior to the tender offer withdrawal date, direct the Trustee to withdraw some or all of the tendered shares reflecting the Participant’s proportional interest, and the Trustee shall withdraw the directed number of shares from the tender offer prior to the tender offer withdrawal deadline. Prior to the withdrawal deadline, if any shares of Sponsor Stock not credited to Participants’ accounts have been tendered, the Trustee shall redetermine the number of shares of Sponsor Stock that would be tendered under Section 5(e)(vi)(B)(3) if the date of the foregoing withdrawal were the date of determination, and withdraw from the tender offer the number of shares of Sponsor Stock not credited to Participants’ accounts necessary to reduce the amount of tendered Sponsor Stock not credited to Participants' accounts to the amount so redetermined. A Participant shall not be limited as determined to the number of directions to tender or withdraw that the Participant may give to the Trustee prior to the deadline. (5) A direction by an independent valuation obtained a Participant to the Trustee to tender shares of Sponsor Stock reflecting the Participant’s proportional interest in the Stock Fund shall not be considered a written election under the Plan by the Company Participant to withdraw, or (iii) the lowest tender offer price offered in such Non-Compliant Tender Offerhave distributed, any or all of his withdrawable shares. The Company may purchase such Tendered Shares upon delivery Trustee shall credit to each proportional interest of the purchase price Participant from which the tendered shares were taken the proceeds received by the Trustee in exchange for the shares of Sponsor Stock tendered from that interest. Pending receipt of directions (through the Administrator) from the Participant or the Named Fiduciary, as provided in the Plan, as to which of the stockholder initiating such Non-Compliant Tender Offer, and, upon such deliveryremaining investment options the proceeds should be invested in, the Company may instruct any transfer agent to transfer such purchased Shares to Trustee shall invest the Company. In addition, any shareholder who makes a Non-Compliant Tender Offer shall be responsible for all expenses incurred by proceeds in the Corporation investment option described in connection with the enforcement of the provisions of this Section 3.9, including, without limitation, expenses incurred in connection with the review of all documents related to such tender offer and expenses incurred in connection with any purchase of Tendered Shares by the Company. The Company maintains the right to offset any such expenses against the dollar amount to be paid by the Company for the purchase of Tendered Shares pursuant to this Section 3.9. In addition to the remedies provided herein, the Company may seek injunctive relief, including, without limitation, a temporary or permanent restraining order, in connection with any Non-Compliant Tender OfferSchedule “C”.

Tender Offers. If any shareholder Shareholder of the Company COMPANY makes a tender offer, including, without limitation, a “"mini-tender” " offer, such shareholder Shareholder must comply with all of the provisions set forth in Regulation 14D of the Exchange ActEXCHANGE ACT, including, without limitation, disclosure and notice requirements, which would be applicable if the tender offer was for more than 5% of the outstanding securities of the CompanyCOMPANY, provided, however, that such documents are not required to be filed with the Securities and Exchange Commission. In addition, any such shareholder Shareholder must provide notice to the Company COMPANY at least 10 Business Days prior to initiating any such tender offer. If any shareholder Shareholder initiates a tender offer without complying with the provisions set forth above (a “"Non-Compliant Tender Offer”"), the CompanyCOMPANY, in its sole discretion, shall have the right to redeem such non-compliant shareholder’s Shareholder's Shares and any Shares acquired in such tender offer (collectively, the “Tendered Shares”"TENDERED SHARES") at the lesser of (i) with respect to Common SharesCOMMON SHARES, the price then being paid per Common Share purchased in the Company’s COMPANY'S latest offering of Common Shares COMMON SHARES at full purchase price (not discounted for commission reductions nor for reductions in sale price permitted pursuant to a distribution reinvestment plan, if any), (ii) the fair market value of the Shares as determined by an independent valuation obtained by the Company COMPANY or (iii) the lowest tender offer price offered in such Non-Compliant Tender Offer. The Company COMPANY may purchase such Tendered Shares TENDERED SHARES upon delivery of the purchase price to the stockholder shareholder initiating such Non-Compliant Tender Offer, and, upon such delivery, the Company COMPANY may instruct any transfer agent to transfer such purchased Shares to the CompanyCOMPANY. In addition, any shareholder Shareholder who makes a Non-Compliant Tender Offer shall be responsible for all expenses incurred by the Corporation COMPANY in connection with the enforcement of the provisions of this Section 3.93.9 of this OPERATING AGREEMENT, including, without limitation, expenses incurred in connection with the review of all documents related to such tender offer and expenses incurred in connection with any purchase of Tendered Shares TENDERED SHARES by the CompanyCOMPANY. The Company COMPANY maintains the right to offset any such expenses against the dollar amount to be paid by the Company COMPANY for the purchase of Tendered Shares TENDERED SHARES pursuant to this Section 3.93.9 of this OPERATING AGREEMENT. In addition to the remedies provided herein, the Company COMPANY may seek injunctive relief, including, without limitation, a temporary or permanent restraining order, in connection with any Non-Compliant Tender Offer.

Tender Offers. (a) If any shareholder the Depositary receives notice that a Tender Offer is being, or is about to be, made for the securities, represented by Shares, of an Underlying Securities Issuer, and if: 1) the Underlying Securities Issuer has publicly announced that it has entered into an agreement pursuant to which the board of directors of such Underlying Securities Issuer recommends acceptance of the Company makes a tender offerTender Offer, includingor 2) the board of directors of such Underlying Securities Issuer has publicly announced, without limitation, a “mini-tender” offer, such shareholder must comply with all of the provisions set forth in Regulation 14D as required by Rule 14e-2 of the Exchange Act, includingor otherwise, without limitation, disclosure and notice requirements, which would be applicable if that it either (i) recommends the tender offer was for more than 5% acceptance of the Tender Offer by its shareholders or (ii) that it remains neutral towards the Tender Offer, or 3) the entity that is making or intends to make a Tender Offer is a Control Person, the Depositary shall, upon commencement of the Tender Offer or as soon as practicable thereafter, distribute the applicable Shares of such Underlying Securities Issuer to the Owners entitled thereto, in proportion to the number of American Depositary Shares held by them, as of a record date set for such purpose by the Depositary in accordance with Section 4.6 of the Deposit Agreement. The American Depositary Shares shall thenceforth represent the remaining Deposited Securities unless the Depositary calls for the surrender of outstanding Receipts to be exchanged for new Receipts specifically describing such remaining Deposited Securities. (b) In circumstances in which the Depositary receives notice that any entity (including an Underlying Securities Issuer) (the “Offeror”) is making or intends to make an offer to holders of Shares, or the class of securities represented by such Shares of any Underlying Securities Issuer (the “Subject Securities”), to tender or exchange such Subject Securities for securities of the Company, provided, however, that such documents are Offeror or cash in circumstances which do not required to be filed with qualify for distribution by the Securities and Exchange Commission. In addition, any such shareholder must provide notice to the Company at least 10 Business Days prior to initiating any such tender offer. If any shareholder initiates a tender offer without complying with the provisions set forth above Depositary under Article 14 (a a) (hereinafter called an “Non-Compliant Tender Offer”), the CompanyDepositary shall mail to Owners copies of notices, reports and communications pertaining to the Offer, in its sole discretionaccordance with Section 5.6 of the Deposit Agreement, but shall have not tender or otherwise deliver Subject Securities to the right to redeem such non-compliant shareholder’s Shares and any Shares acquired in such tender offer (collectively, the “Tendered Shares”) at the lesser of (i) with respect to Common Shares, the price then being paid per Common Share purchased in the Company’s latest offering of Common Shares at full purchase price (not discounted for commission reductions nor for reductions in sale price permitted Offeror pursuant to a distribution reinvestment plan, if any), (ii) the fair market value of the Shares as determined by an independent valuation obtained by the Company or (iii) the lowest tender offer price offered in such Non-Compliant Tender Offer. The Company may purchase such Tendered Shares upon delivery of the purchase price to the stockholder initiating such Non-Compliant Tender Offer, and, upon such delivery, the Company may instruct any transfer agent to transfer such purchased Shares to the Company. In addition, any shareholder who makes a Non-Compliant Tender Offer shall be responsible for all expenses incurred by the Corporation in connection with the enforcement Offer. Owners wishing to participate in the Offer must take possession of such Shares by surrendering their Receipts for cancellation in accordance with Section 2.5 of the provisions Deposit Agreement. If at any time prior to the completion of this Section 3.9such Offer, includingthe Depositary receives notice that the terms of such Offer will be or have been changed so as to qualify for distribution by the Depositary within the meaning of Article 14(a), without limitation, expenses incurred the Depositary shall thereupon distribute all Shares of such Underlying Securities Issuer to the Owners entitled thereto in accordance with Article 14(a). (c) Any action or nonaction by the Depositary in connection with this Article 14 shall be final and binding on all Owners and holders and the review Depositary shall have no liability to any Owner or holder of all documents related to such tender offer and expenses incurred any Receipt for any action or nonaction by it in connection with any purchase of Tendered Shares by the Company. The Company maintains the right to offset any such expenses against the dollar amount to be paid by the Company for the purchase of Tendered Shares pursuant to this Section 3.9. In addition to the remedies provided herein, the Company may seek injunctive relief, including, without limitation, a temporary or permanent restraining order, in connection with any Non-Compliant Tender OfferArticle 14.

Tender Offers. If (a) For so long as the Stockholder shall own or hold any shareholder of the Shares, the Stockholder will not tender any Company Securities in any tender or exchange offer by a person or entity other than the Company or any affiliate of the Company makes (the "Bidder") except under the following circumstances: (i) The Board (with Stockholder Representatives abstaining) recommends that shareholders accept such tender or exchange offer; (ii) In connection with such tender or exchange offer, the Board (with Stockholder Representatives abstaining) redeems the outstanding rights under the Shareholder Rights Plan; or (iii) During, prior to or in anticipation of, a tender or exchange offer, including, without limitation, a “mini-tender” offer, such shareholder must comply the Board (with all Stockholder Representatives abstaining) exempts the Bidder from the operation of the provisions set forth in Regulation 14D Shareholder Rights Plan. (b) In the event (i) Stockholder is prohibited by Section 3.4(a) hereof from tendering or exchanging Company Securities into a tender or exchange offer which is consummated without the favorable recommendation of the Exchange ActBoard ("Consummated Offer") and, includingas a result of the Consummated Offer, without limitation, disclosure and notice requirements, which would be applicable if the tender offer was for Bidder beneficially owns more than 5% 50 percent (50%) of the outstanding voting securities of the Company, provided, however, that such documents are not required to be filed with and (ii) Stockholder within ninety (90) days of the Consummated Offer sells or otherwise disposes of Company Securities and Exchange Commission. In addition, any such shareholder must provide notice to in a merger or other transaction in which the Company at least 10 Business Days prior or a successor or affiliate is a party for a per share or per unit price which is less than the highest per share or other per unit price offered by the Bidder in the tender or exchange offer, then within thirty (30) days following such sale or other disposition, Company shall pay to initiating any such tender offer. If any shareholder initiates a tender offer without complying with the provisions set forth above (a “Non-Compliant Tender Offer”), the Company, in its sole discretion, shall have the right Stockholder an amount equal to redeem such non-compliant shareholder’s Shares and any Shares acquired in such tender offer (collectively, the “Tendered Shares”) at the lesser of (i) with respect to Common Shares, the difference between the highest price then being paid per Common Share purchased share or other per unit price offered by the Bidder in the Company’s latest offering of Common Shares at full purchase tender or exchange offer and the per share or per unit price (not discounted for commission reductions nor for reductions in sale price permitted pursuant to a distribution reinvestment planwhich the Stockholder sold its Company Securities, if any), multiplied by (ii) the number of shares or other units of Company Securities sold or disposed of by Stockholder within such ninety (90) day period. (c) In the event (i) Stockholder is prohibited by Section 3.4(a) hereof from tendering or exchanging any Company Securities into a tender or exchange offer which results in a Consummated Offer and, as a result of the Consummated Offer, the Bidder beneficially owns more than fifty percent (50%) of the outstanding voting securities of the Company and (ii) the Stockholder has not sold all of its Company Securities within ninety (90) days following the consummation of the Consummated Offer, then within one hundred twenty (120) days following the consummation of the Consummated Offer, Company shall pay to Stockholder in cash an amount equal to (i) the sum of the highest per share or other per unit price paid by the Bidder in the Consummated Offer, less the average of the last reported sales price per share of Common Stock and/or other Company Security if listed on The Nasdaq Stock Market or the average closing price per share of Common Stock and/or other Company Security if listed on a national securities exchange for the thirty (30) consecutive trading days immediately preceding the fifth business day prior to the commencement of the tender or exchange offer (or if such Shares or other Company Securities subject to the tender or exchange offer are not listed on The Nasdaq Stock Market or on a national securities exchange, the fair market value of a share of Common Stock and/or unit of other Company Security subject to the Shares tender or exchange offer, calculated as of the fifth business day immediately prior to the commencement of such tender or exchange offer, as determined by an independent valuation obtained appraiser with an established national reputation for appraising businesses selected by mutual agreement of Company and Stockholder, or in the Company or absence of such mutual agreement, selected by Price Waterhouse LLP), multiplied by (iiiii) the lowest number of Shares and/or other Company Securities subject to the tender or exchange offer held by Stockholder on the one hundred and twentieth (120th) day following consummation of the Consummated Offer. (d) In the event of an exchange offer or a tender offer price offered in such Non-Compliant Tender Offer. The Company may purchase such Tendered Shares upon delivery of the purchase price to the stockholder initiating such Non-Compliant Tender Offer, and, upon such deliveryother than an all cash tender offer, the Company may instruct any transfer agent to transfer such purchased Shares to the Company. In addition, any shareholder who makes a Non-Compliant Tender Offer shall be responsible for all expenses incurred by the Corporation in connection with the enforcement of the provisions of this Section 3.9, including, without limitation, expenses incurred in connection with the review of all documents related to such tender offer and expenses incurred in connection with any purchase of Tendered Shares by the Company. The Company maintains the right to offset any such expenses against the dollar amount to be "highest per share or other per unit price paid by the Company Bidder" as such phrase applies to non-cash consideration paid by the Bidder, shall mean the fair market value of such non-cash consideration calculated on a per share or per unit basis, as the case may be, as of the time of the applicable payment, as determined by an independent appraiser with an established national reputation for the purchase appraising businesses selected by mutual agreement of Tendered Shares pursuant to this Section 3.9. In addition to the remedies provided herein, the Company may seek injunctive reliefand Stockholder, includingor in the absence of such mutual agreement, without limitation, a temporary or permanent restraining order, in connection with any Non-Compliant Tender Offerselected by Price Waterhouse LLP.

Tender Offers. If Except as otherwise expressly provided in the Plan, the Trustee shall not sell, alienate, encumber, pledge, transfer or otherwise dispose of or tender or withdraw, any shareholder Employer Securities held by it under the Plan. All tender or exchange decisions with respect to Employer Securities shall be made by the Trustee only as directed by the Participants (and Beneficiaries), acting in their capacity as named fiduciaries (within the meaning of Section 402 of ERISA), in accordance with the following provisions of this Section 8.14. The number of shares of Employer Securities credited to a Participant's Employer Securities Account shall be determined as of the Company makes most recent Accounting Date for which information is readily available. In the event the Trustee holds Employer Securities under the Plan, but no Employer Securities are then credited to any Participant's Employer Securities Account, then, solely for purposes of this Section 8.14, each person who on the date the offer referred to in this Section 8.14 is received by the Trustee is an Employee who, if such Employee remained an Employee (in the same status) until the immediately following Accounting Date, would be entitled to an allocation under Section 3.06 shall be deemed to have one share of Employer Securities allocated to his Participant Employer Securities Account. (a) In the event an offer shall be received by the Trustee (including a tender offeroffer for shares of Employer Securities subject to Section 14(d)(1) of the Securities Exchange Act of 1934 or subject to Rule 13e-4 promulgated under such Act, includingas those provisions may from time to time be amended) to purchase or exchange any Employer Securities held by the Trustee, without limitationthe Trustee shall advise each Participant who has shares of Employer Securities credited to his Employer Securities Account in writing of the terms of the offer as soon as practicable after its commencement and shall furnish each Participant with a form by which he may instruct the Trustee confidentially whether or not to tender or exchange shares of Employer Securities credited to such Participant's Employer Securities Account and, separately, based on shares of Employer Securities credited to such Participant's Employer Securities Account, a “miniproportionate share of any Non-tender” offerDirected Shares and any Unallocated Shares held by the Trustee (including fractional shares to 1/1000th of a share). The materials furnished to the Participants shall include: (1) a notice from the Trustee explaining Participants' rights to instruct the Trustee with respect to shares of Employer Securities credited to their Employer Securities Accounts, and, separately, with respect to Non-Directed Shares and Unallocated Shares, as provided herein; and (2) such shareholder must comply related documents as are prepared by any person and provided to the shareholders pursuant to the Securities Exchange Act of 1934. The Company and the Trustee may also provide Participants with all of the provisions set forth in Regulation 14D of the Exchange Act, including, without limitation, disclosure and notice requirements, which would be applicable if such other material concerning the tender or exchange offer was for more than 5% of as the outstanding securities of Trustee or the Company, Company in their discretion determine to be appropriate; provided, however, that such documents are not required to be filed with the Securities and Exchange Commission. In addition, any such shareholder must provide notice to the Company at least 10 Business Days prior to initiating any such tender offer. If any shareholder initiates a tender offer without complying with the provisions set forth above (a “Non-Compliant Tender Offer”), distribution to Participants of materials by the Company, the Trustee shall be furnished with complete copies of all such materials. The Company shall cooperate with the Trustee to insure that Participants receive the requisite information in its sole discretiona timely manner. (b) Each Participant who has shares of Employer Securities credited to his Employer Securities Account, as a named fiduciary (within the meaning of Section 402 of ERISA), shall have be entitled to direct the right Trustee whether or not to redeem tender or exchange shares of Employer Securities credited to his Employer Securities Account (including fractional shares to 1/1000th of a share). With respect to shares of Employer Securities credited to the Employer Securities Account of a deceased Participant, such non-compliant shareholder’s Shares Participant's Beneficiary shall be entitled to direct the Trustee whether or not to tender or exchange such shares as if such Beneficiary were the Participant. (c) Each Participant who has shares of Employer Securities credited to his Employer Securities Account and any Shares acquired in such who is entitled to direct the Trustee whether or not to tender offer or exchange shares of Employer Securities credited to his Employer Securities Account, as a named fiduciary (collectivelywithin the meaning of Section 402 of ERISA), shall be entitled to separately direct the “Tendered Shares”) at the lesser of (i) Trustee with respect to Common Shares, the price then being paid per Common Share purchased in the Company’s latest offering tender or exchange of Common Shares at full purchase price (not discounted for commission reductions nor for reductions in sale price permitted pursuant to a distribution reinvestment plan, if any), (ii) the fair market value portion of the Shares as determined by an independent valuation obtained by the Company or (iii) the lowest tender offer price offered in such Non-Compliant Tender Offer. The Company may purchase such Tendered Directed Shares upon delivery of the purchase price to the stockholder initiating such Non-Compliant Tender Offer, and, upon such delivery, the Company may instruct any transfer agent to transfer such purchased Shares to the Company. In addition, any shareholder who makes a Non-Compliant Tender Offer shall be responsible for all expenses incurred by the Corporation in connection with the enforcement of the provisions of this Section 3.9, including, without limitation, expenses incurred in connection with the review of all documents related to such tender offer and expenses incurred in connection with any purchase of Tendered Shares by the Company. The Company maintains the right to offset any such expenses against the dollar amount to be paid by the Company for the purchase of Tendered Shares pursuant to this Section 3.9. In addition to the remedies provided herein, the Company may seek injunctive relief, including, without limitation, a temporary or permanent restraining order, in connection with any Non-Compliant Tender Offer.the

Tender Offers. If any shareholder of the Company makes a tender offer, including, without limitation, a “mini-tender” offer, such shareholder must comply with all of the provisions set forth in Regulation 14D of the Exchange Act, including, without limitation, disclosure and notice requirements, which would be applicable if the tender offer was for more than 5% of the outstanding securities of the Company, provided, however, that such documents are not required to be filed with the Securities and Exchange Commission. In addition, any such shareholder must provide notice to the Company at least 10 ten (10) Business Days prior to initiating any such tender offer. If any shareholder initiates a tender offer without complying with the provisions set forth above (a “Non-Compliant Tender Offer”), the Company, in its sole discretion, shall have the right to redeem such non-compliant shareholder’s Shares and any Shares acquired in such tender offer (collectively, the “Tendered Shares”) at the lesser of (i) with respect to Common Shares, the price then being paid per Common Share purchased in the Company’s latest offering of Common Shares at full purchase price (not discounted for commission reductions nor for reductions in sale price permitted pursuant to a distribution reinvestment plan, if any), (ii) the fair market value of the Shares as determined by an independent valuation obtained by the Company or (iii) the lowest tender offer price offered in such Non-Compliant Tender Offer. The Company may purchase such Tendered Shares upon delivery of the purchase price to the stockholder initiating such Non-Compliant Tender Offer, and, upon such delivery, the Company may instruct any transfer agent to transfer such purchased Shares to the Company. In addition, any shareholder who makes a Non-Compliant Tender Offer shall be responsible for all expenses incurred by the Corporation in connection with the enforcement of the provisions of this Section 3.9, including, without limitation, expenses incurred in connection with the review of all documents related to such tender offer and expenses incurred in connection with any purchase of Tendered Shares by the Company. The Company maintains the right to offset any such expenses against the dollar amount to be paid by the Company for the purchase of Tendered Shares pursuant to this Section 3.9. In addition to the remedies provided herein, the Company may seek injunctive relief, including, without limitation, a temporary or permanent restraining order, in connection with any Non-Compliant Tender Offer.

Tender Offers. If any shareholder of the Company makes a tender offer, including, without limitation, a “mini-tender” offer, such shareholder must comply with all of the provisions set forth in Regulation 14D of the Exchange Act, including, without limitation, disclosure and notice requirements, which would be applicable if the tender offer was for more than 5% of the outstanding securities of the Company, provided, however, that such documents are not required to be filed with the Securities and Exchange Commission. In addition, any such shareholder must provide notice to the Company at least 10 Business Days prior to initiating any such tender offer. If any shareholder initiates a tender offer without complying with the provisions set forth above (a “Non-Compliant Tender Offer”), the Company, in its sole discretion, shall have the right to redeem such non-compliant shareholder’s Shares and any Shares acquired in such tender offer (collectively, the “Tendered Shares”) at the lesser of (i) with respect to Common Shares, the price then being paid per Common Share purchased in the Company’s latest offering of Common Shares at full purchase price (not discounted for commission reductions nor for reductions in sale price permitted pursuant to a distribution reinvestment plan, if any), (ii) the fair market value of the Shares as determined by an independent valuation obtained by the Company or (iii) the lowest tender offer price offered in such Non-Compliant Tender Offer. The Company may purchase such Tendered Shares upon delivery of the purchase price to the stockholder initiating such Non-Compliant Tender Offer, and, upon such delivery, the Company may instruct any transfer agent to transfer such purchased Shares to the Company. In addition, any shareholder who makes a Non-Compliant Tender Offer shall be responsible for all expenses incurred by the Corporation in connection with the enforcement of the provisions of this Section 3.9, including, without limitation, expenses incurred in connection with the review of all documents related to such tender offer and expenses incurred in connection with any purchase of Tendered Shares by the Company. The Company maintains the right to offset any such expenses against the dollar amount to be paid by the Company for the purchase of Tendered Shares pursuant to this Section 3.9. In addition to the remedies provided herein, the Company may seek injunctive relief, including, without limitation, a temporary or permanent restraining order, in connection with any Non-Compliant Tender Offer.