Common use of Capture Clause in Contracts

Capture. (a) In the event that any of the Stockholder's Shares are sold, transferred, exchanged, canceled or disposed of in connection with or as a result of any Acquisition Proposal that is in existence on or that otherwise has been made prior to the first anniversary of the Termination Date (an "Alternative Disposition") then, within five business days after the closing of such Alternative Disposition, the Stockholder shall tender and pay to, or shall cause to be tendered and paid to, the Parent, or its designee, in immediately available funds, 100% of the Profit realized from such Alternative Disposition. As used in this Section 3(a), "Profit" shall mean an amount equal to the excess, if any, of (i) the Alternative Transaction Consideration over (ii) the Current Transaction Consideration. As used in this Section 3, "Alternative Transaction Consideration" shall mean all cash, securities, settlement or termination amounts, notes or other debt instruments, and other consideration received or to be received, directly or indirectly, by the Stockholder and his Affiliates (excluding officers and directors of the Company and excluding any Obligated Affiliate of Stockholder) in connection with or as a result of such Alternative Disposition or any agreements or arrangements (including without limitation any employment agreement (except a bonafide employment agreement pursuant to which the Stockholder is required to devote, and under which Stockholder in good faith intends to devote, substantially all of his business time and effort to the performance of executive services for the Company in a manner substantially similar to Stockholder's current employment arrangements with the Company), consulting agreement, non-competition agreement, confidentiality agreement, settlement agreement or release agreement) entered into, directly or indirectly, by the Stockholder or his Affiliates (excluding officers and directors of the Company and excluding any Affiliate of Stockholder which is a party to a Stockholder Agreement (an "Affiliate SA") of even date herewith with Parent, Sub and the Company in substantially the same form as this Agreement and which obligates such Affiliate to deliver to Parent any Profit recovered by such Affiliate as a stockholder of the Company (an "Obligated Affiliate")) as a part of or in connection with the Alternative Disposition or associated Acquisition Proposal. As used in this Agreement, "Current Transaction Consideration" shall mean the sum of (x) all amounts to be received, directly or indirectly, by Stockholder and his Affiliates (excluding officers and directors of the Company and excluding any Obligated Affiliate of Stockholder) pursuant to Article II of the Merger Agreement (without giving effect to any conversion of any shares of Series B Preferred Stock listed in Part I of Schedule B hereto into shares of Class A Common Stock or any other shares of capital stock of the Company for or into which shares of Series B Preferred Stock may be exchanged or converted), (y) all amounts, if any, to be received by Stockholder (including the amount of indebtedness owed by Stockholder forgiven) pursuant to the Termination Agreement (as in effect on the date hereof) and (z) all amounts, if any, to be received by Stockholder and his Affiliates (excluding officers and directors of the Company and excluding any Obligated Affiliate of Stockholder pursuant to and/or upon termination of any Affiliate Relationship or other agreement to which Stockholder or any Affiliate of Stockholder is a party and which is to be terminated pursuant to Section 4.06 of the Merger Agreement.

Capture. (a) In the event that the transactions contemplated by the Arrangement Agreement are not consummated due to a breach of this Agreement by any Shareholder and any Subject Shares of the Stockholder's Shares a Shareholder are sold, transferred, exchanged, canceled or disposed of in connection with or as a result of any Acquisition Proposal Alternative Transaction which is executed or consummated within twelve (12) months following the date that the Arrangement Agreement is in existence on or that otherwise has been made prior to the first anniversary of the Termination Date terminated (an "“Alternative Disposition"”) then, within five business days after in addition to the remedies at law or equity for breach of this Agreement, on the closing of such Alternative Disposition, the Stockholder such Shareholders shall tender and pay to, or shall cause to be tendered and paid to, the Parent, Subco (or its designee), in immediately available funds, 100% all of the Profit (as defined below) realized by such Shareholders from such Alternative Disposition. As used in this Subject to Section 3(a13(b), "“Profit" ” shall mean an amount equal to the excess, if any, of (i) the Alternative Transaction Consideration (as defined below) over (ii) the Current cash consideration set forth in the Arrangement Agreement. If the Alternative Transaction ConsiderationConsideration includes any consideration other than cash, such Shareholders may, if not prohibited from transferring any such consideration to Subco (or its designee), transfer, in lieu of cash, a pro rata portion (based on the proportion of the non-cash consideration to the aggregate consideration) of the Profit represented by such other forms of consideration. As used in this Section 3, "“Alternative Transaction Consideration" ” shall mean all cash, securities, settlement or termination amounts, notes or other debt instruments, and other consideration received or to be received, directly or indirectly, by the Stockholder such Shareholders and his Affiliates (excluding officers and directors of the Company and excluding any Obligated Affiliate of Stockholder) their affiliates in connection with or as a result of such Alternative Disposition or any agreements or arrangements (including including, without limitation limitation, any employment agreement (except a bonafide bona fide employment agreement pursuant to which the Stockholder a Shareholder is required to devote, and under which Stockholder such Shareholder in good faith intends to devote, substantially all of his business time and effort to the performance of executive services for the Company in a manner substantially similar to Stockholder's such Shareholder’s current employment arrangements with the Company), consulting agreement, non-competition agreement, confidentiality agreement, settlement agreement or release agreement) entered into, directly or indirectly, by the Stockholder such Shareholders or his Affiliates (excluding officers and directors any of the Company and excluding any Affiliate of Stockholder which is a party to a Stockholder Agreement (an "Affiliate SA") of even date herewith with Parent, Sub and the Company in substantially the same form as this Agreement and which obligates such Affiliate to deliver to Parent any Profit recovered by such Affiliate as a stockholder of the Company (an "Obligated Affiliate")) their affiliates as a part of of, or in connection with with, the Alternative Disposition or the associated Acquisition Proposal. As used in Alternative Transaction. (b) For purposes of determining Profits under this Agreement, "Current Transaction Consideration" shall mean the sum of Section 13: (xi) all amounts to securities that are publicly traded shall be received, directly or indirectly, by Stockholder and his Affiliates (excluding officers and directors valued at the average of the Company and excluding any Obligated Affiliate of Stockholder) pursuant to Article II of closing prices for the Merger Agreement (without giving effect to any conversion of any shares of Series B Preferred Stock listed in Part I of Schedule B hereto into shares of Class A Common Stock or any other shares of capital stock of the Company for or into which shares of Series B Preferred Stock may be exchanged or converted), (y) all amounts, if any, to be received by Stockholder (including the amount of indebtedness owed by Stockholder forgiven) pursuant to the Termination Agreement (as in effect five trading days ending on the date hereofon which the Alternative Disposition closes; (ii) all other non-cash items shall be valued based upon the fair market value thereof as of the date of closing of the Alternative Disposition as determined by an independent expert selected by Parent and who is reasonably acceptable to such Shareholder; (iii) all deferred payments or consideration shall be discounted to reflect a market rate of net present value thereof as determined by the above-referenced independent expert; and (ziv) if less than all amountsof a Shareholder’s Subject Shares are subject to the Alternative Disposition, if anythe cash consideration set forth in the Arrangement Agreement shall be multiplied by a fraction, the numerator of which is the number of such Shareholder’s Subject Shares sold, transferred, exchanged, canceled or disposed of in such Alternative Disposition and the denominator of which is the total number of such Shareholder’s Subject Shares. In the event any contingent payments are included in the consideration for the Alternative Disposition, upon receipt of any such contingent payment, such Shareholder will promptly transfer to be received by Stockholder and his Affiliates Subco (excluding officers and directors or its designee) any additional amounts that would have been transferred to Subco (or its designee) upon the completion of the Company and excluding any Obligated Affiliate of Stockholder pursuant to and/or upon termination of any Affiliate Relationship or other agreement to which Stockholder or any Affiliate of Stockholder is a party and which is to be terminated pursuant to Section 4.06 of the Merger AgreementAlternative Disposition if such contingent payment had been received at such time.

Capture. (a) In the event that any of the Stockholder's Shares are sold, transferred, exchanged, canceled or disposed of in connection with or as a result of any Acquisition Proposal that is in existence on or that otherwise has been otherwise made prior to the first anniversary of the Termination Date (an "Alternative Disposition") then, within five business days after the closing of such Alternative Disposition, the Stockholder shall tender and pay to, or shall cause to be tendered and paid to, the Parent, or its designee, in immediately available funds, 10030% of the Profit realized from such Alternative Disposition. As used in this Section 3(a), "Profit" shall mean an amount equal to the excess, if any, of (i) the Alternative Transaction Consideration over (ii) the Current Transaction Consideration. As used in this Section 3, "Alternative Transaction Consideration" Consideration shall mean all cash, securities, settlement or termination amounts, notes or other debt instruments, and other consideration received or to be received, directly or indirectly, by the Stockholder and (as well as any members of the Stockholder's family and/or his Affiliates (excluding officers and directors to whom he has transferred Shares after the date hereof pursuant to Section 4(a)(vi) below) in respect of the Company and excluding any Obligated Affiliate of Stockholder) Shares in connection with or as a result of such Alternative Disposition or any agreements or arrangements (including including, without limitation limitation, any employment agreement (except a bonafide bona fide employment agreement pursuant to which the Stockholder is required to devote, and under which the Stockholder in good faith intends to devote, substantially all of his business time and effort to the performance of executive services for the Company in a manner substantially similar to Stockholder's current employment arrangements with the Company), consulting agreement, non-competition agreement, confidentiality agreement, settlement agreement or release agreement) entered into, directly or indirectly, by the Stockholder or his Affiliates (excluding officers and directors of the Company and excluding any Affiliate of Stockholder which is a party to a Stockholder Agreement (an "Affiliate SA") of even date herewith with Parent, Sub and the Company in substantially the same form as this Agreement and which obligates such Affiliate to deliver to Parent any Profit recovered by such Affiliate as a stockholder of the Company (an "Obligated Affiliate")) as a part of or in connection with the Alternative Disposition or associated Acquisition Proposal. As used in this Agreement, "Current Transaction Consideration" Consideration shall mean the sum of (x) all amounts to be received, directly or indirectly, by the Stockholder and his Affiliates (excluding officers and directors of the Company and excluding any Obligated Affiliate of Stockholder) pursuant to Article II of the Merger Agreement (without giving effect to any conversion as well as the value of any shares of Series B Preferred Stock listed in Part I of Schedule B hereto into shares of Class A Common Stock or any other shares of capital stock of the Company for or into which shares of Series B Preferred Stock may be exchanged or converted), (y) all amounts, if any, Options to be received by the Stockholder (including in connection with the Merger and the aggregate amount of indebtedness owed by Stockholder forgiven) pursuant to the Termination Agreement (as in effect on the date hereof) and (z) all amounts, if any, other payments or other consideration to be received by the Stockholder and his Affiliates (excluding officers and directors as a direct result of the Company and excluding any Obligated Affiliate of Stockholder pursuant to and/or upon termination of any Affiliate Relationship or other agreement to which Stockholder or any Affiliate of Stockholder is a party and which is to be terminated pursuant to Section 4.06 of the Merger AgreementMerger.

Capture. (a) In the event that the transactions contemplated by the Merger Agreement are not consummated due to a breach of this Agreement by any Stockholder and any Subject Shares of the Stockholder's Shares a Stockholder are sold, transferred, exchanged, canceled or disposed of in connection with or as a result of any Acquisition Proposal Transaction by a Third Party which is executed or consummated within twelve (12) months following the date that the Merger Agreement is in existence on or that otherwise has been made prior to the first anniversary of the Termination Date terminated (an "Alternative Disposition") then, within five business days after in lieu of any remedies at law, but in addition to the remedies at equity for breach of this Agreement (including, without limitation, specific performance and injunctive relief but excluding additional money damages), on the closing of such Alternative Disposition, the Stockholder such Stockholders shall tender and pay to, or shall cause to be tendered and paid to, the Parent, Cornerstone (or its designee), in immediately available funds, 100% all of the Profit (as defined below) realized by such Stockholders from such Alternative Disposition. As used in this Subject to Section 3(a7(b), "Profit" shall mean an amount equal to the excess, if any, of (i) the Alternative Transaction Consideration (as defined below) over (ii) the Current Transaction ConsiderationConsideration (as defined below). As used If the Alternative Transaction Consideration includes any consideration other than cash, such Stockholders may, if not prohibited from transferring any such consideration to Cornerstone (or its designee), transfer, in this Section 3lieu of cash, a pro rata portion (based on the proportion of the non-cash consideration to the aggregate consideration) of the Profit represented by such other forms of consideration. "Alternative Transaction Consideration" shall mean all cash, securities, settlement or termination amounts, notes or other debt instruments, and other consideration received or to be received, directly or indirectly, by the Stockholder such Stockholders and his Affiliates (excluding officers and directors of the Company and excluding any Obligated Affiliate of Stockholder) their affiliates in connection with or as a result of such Alternative Disposition or any agreements or arrangements (including including, without limitation limitation, any employment agreement (except a bonafide bona fide employment agreement pursuant to which the a Stockholder is required to devote, and under which such Stockholder in good faith intends to devote, substantially all of his business time and effort to the performance of executive services for the Company in a manner substantially similar to such Stockholder's current employment arrangements with the Company), consulting agreement, non-competition agreement, confidentiality agreement, settlement agreement or release agreement) entered into, directly or indirectly, by the Stockholder such Stockholders or his Affiliates (excluding officers and directors any of the Company and excluding any Affiliate of Stockholder which is a party to a Stockholder Agreement (an "Affiliate SA") of even date herewith with Parent, Sub and the Company in substantially the same form as this Agreement and which obligates such Affiliate to deliver to Parent any Profit recovered by such Affiliate as a stockholder of the Company (an "Obligated Affiliate")) their affiliates as a part of of, or in connection with with, the Alternative Disposition or the associated Acquisition ProposalTransaction. As used in this Agreement, "Current Transaction Consideration" shall mean the sum of (x) all amounts to be received, directly or indirectly, by Stockholder and his Affiliates (excluding officers and directors of the Company and excluding any Obligated Affiliate of Stockholder) such Stockholders pursuant to Article II I of the Merger Agreement (without giving effect to any conversion of any shares of Series B Preferred Stock listed in Part as such Article I of Schedule B hereto into shares of Class A Common Stock or any other shares of capital stock of the Company for or into which shares of Series B Preferred Stock may be exchanged or converted), (y) all amounts, if any, amended from time to be received by Stockholder (including the amount of indebtedness owed by Stockholder forgiven) pursuant to the Termination Agreement (as in effect on the date hereof) and (z) all amounts, if any, to be received by Stockholder and his Affiliates (excluding officers and directors of the Company and excluding any Obligated Affiliate of Stockholder pursuant to and/or upon termination of any Affiliate Relationship or other agreement to which Stockholder or any Affiliate of Stockholder is a party and which is to be terminated pursuant to Section 4.06 of the Merger Agreementtime.

Capture. In order to induce Parent and Merger Sub to enter into the Merger Agreement, each of the Stockholders hereby agrees to the matters set forth in this Section 2 with respect to the number of shares of Voting Stock set forth opposite such Stockholder's name on Schedule I hereto, and all other shares of Voting Stock acquired by such Stockholder after the date of this Agreement (collectively, the "Subject Shares"): (a) In the event that any the Merger Agreement shall have been terminated under circumstances where Parent is entitled to receive a Termination Fee, each Stockholder shall pay to Parent on demand, an amount in cash or Voting Stock (or securities into which such Voting Stock becomes convertible pursuant to the consummation of the a Company Acquisition Proposal), at such Stockholder's Shares are soldelection, transferred, exchanged, canceled or disposed equal to all Profit (as defined below) of in connection with or as a result such Stockholder from the consummation of any Company Acquisition Proposal that is consummated within twelve months or, if entered into within twelve months, consummated within eighteen months of such termination. The "Profit" of any Stockholder from any Company Acquisition Proposal shall equal 60% of the sum of (i) the aggregate consideration received by such Stockholder pursuant to such Company Acquisition Proposal, valuing any non-cash consideration (including any residual interest in existence the Company) at its fair market value on the date of such consummation plus (ii) the fair market value, on the date of disposition, of all Subject Shares of such Stockholder disposed of after the termination of the Merger Agreement and prior to the date of such consummation less (iii) the fair market value of the aggregate consideration that would have been paid or that otherwise has been made payable to such Stockholder if he had received the Merger Consideration and/or Parent Series A Preferred Stock (based on the fair market value of Parent Common Stock to which such Parent Series A Preferred Stock would be convertible into) pursuant to the Merger Agreement as originally executed, valued as of immediately prior to the first anniversary public announcement by the Company of its intention to terminate the Merger Agreement to pursue a Superior Proposal or by any party making a Company Acquisition Proposal (whichever is lower). (b) In the event that (i) prior to the Effective Time, a Company Acquisition Proposal shall have been made and (ii) the Effective Time of the Termination Date Merger shall have occurred and Parent for any reason shall have increased the amount of Merger Consideration payable, or the value of the Parent Series A Preferred Stock exchangeable, over that set forth in the Merger Agreement in effect on the date hereof (the "Original Merger Consideration"), each Stockholder shall pay to Parent on demand an "Alternative Disposition"amount in cash equal to the product of (A) then, within five business days after the closing number of Subject Shares of such Alternative Disposition, the Stockholder shall tender and pay to, or shall cause to be tendered and paid to, the Parent, or its designee, in immediately available funds, 100(B) 60% of the Profit realized from such Alternative Disposition. As used in this Section 3(a), "Profit" shall mean an amount equal to the excess, if any, of (i1) the Alternative Transaction Consideration over (ii) per share cash consideration or the Current Transaction Consideration. As used in this Section 3per share fair market value of any non-cash consideration, "Alternative Transaction Consideration" shall mean all cashdetermined as of the Effective Time of the Merger as the case may be, securities, settlement or termination amounts, notes or other debt instruments, and other consideration actually received or to be received, directly or indirectly, by the Stockholder and his Affiliates (excluding officers and directors of the Company and excluding any Obligated Affiliate of Stockholder) in connection with or as a result of such Alternative Disposition or any agreements or arrangements the Merger, over (including without limitation any employment agreement (except a bonafide employment agreement pursuant to which 2) the Stockholder is required to devote, and under which Stockholder in good faith intends to devote, substantially all of his business time and effort to the performance of executive services for the Company in a manner substantially similar to Stockholder's current employment arrangements with the Company), consulting agreement, non-competition agreement, confidentiality agreement, settlement agreement or release agreement) entered into, directly or indirectly, by the Stockholder or his Affiliates (excluding officers and directors fair market value of the Company and excluding any Affiliate of Stockholder which is a party to a Stockholder Agreement (an "Affiliate SA") of even date herewith with Parent, Sub and the Company in substantially the same form Original Merger Consideration determined as this Agreement and which obligates such Affiliate to deliver to Parent any Profit recovered by such Affiliate as a stockholder of the Company (an "Obligated Affiliate")) as a part of or in connection with the Alternative Disposition or associated Acquisition Proposal. As used in this Agreement, "Current Transaction Consideration" shall mean the sum of (x) all amounts to be received, directly or indirectly, by Stockholder and his Affiliates (excluding officers and directors time of the Company and excluding any Obligated Affiliate of Stockholder) pursuant to Article II of the Merger Agreement (without giving effect to any conversion of any shares of Series B Preferred Stock listed first increase in Part I of Schedule B hereto into shares of Class A Common Stock or any other shares of capital stock of the Company for or into which shares of Series B Preferred Stock may be exchanged or converted), (y) all amounts, if any, to be received by Stockholder (including the amount of indebtedness owed by Stockholder forgiventhe Original Merger Consideration. (c) pursuant For purposes of this Section 2, the fair market value of any non-cash consideration consisting of: (i) securities listed on a national securities exchange or traded on the Nasdaq National Market shall be equal to the Termination Agreement average closing price per share of such security as reported on such exchange or Nasdaq National Market for the five trading days before and after the date of determination; and (ii) consideration which is other than cash or securities of the form specified in clause (i) of this Section 2(c) shall be determined by a nationally recognized independent investment banking firm mutually agreed upon by the parties within ten (10) business days of the event requiring selection of such banking firm; provided, however, that if the parties are unable to agree within two (2) business days after the date of such event as in effect to the investment banking firm, then the parties shall each select one firm, and those firms shall select a third investment banking firm, which third firm shall make such determination; provided further, that the fees and expenses of such investment banking firm shall be borne equally by Parent, on the date hereofone hand, and the Stockholders, on the other hand. The determination of the investment banking firm shall be binding upon the parties. (d) Any payment under this Section 2 shall (i) if paid in cash, be paid by wire transfer of same day funds to an account designated by Parent and (zii) all amountsif paid through a transfer of securities, if anybe paid through delivery of such securities, to be received by Stockholder and his Affiliates (excluding officers and directors of the Company and excluding any Obligated Affiliate of Stockholder pursuant to and/or upon termination of any Affiliate Relationship or other agreement to which Stockholder or any Affiliate of Stockholder is a party and which is to be terminated pursuant to Section 4.06 of the Merger Agreementsuitably endorsed for transfer.

Capture. (a) In If (i) a Specified Termination occurs, and (ii) within 18 months of the event that Specified Termination, the Company (A) enters into an Alternative Acquisition Agreement, or (B) otherwise agrees to an Acquisition Proposal (a "Triggering Termination"), and any of the a Principal Stockholder's Shares are sold, transferred, exchanged, canceled or disposed of in connection with with, or as a result of of, any Acquisition Proposal that is in existence on on, or that otherwise has been otherwise made prior to to, the first eighteen month anniversary of the date of the Triggering Termination Date (an "Alternative Disposition") then, within five two business days after the receipt by such Principal Stockholder of Alternative Transaction Consideration in connection with the closing of such Alternative Disposition, the such Principal Stockholder shall tender and pay to, or shall cause to be tendered and paid to, the ParentBuyer, or its designee, in immediately available funds, 100% funds or the form of (and in the same proportions as) the Alternative Transaction Consideration (as determined at the option of the Principal Stockholder), the Profit (as defined below) realized from such Alternative Disposition. As used in this Section 3(a7(a), "Profit" shall mean an amount equal to the excess, if any, of (i) the Alternative Transaction Consideration (as defined below) over (ii) the Current Transaction ConsiderationConsideration (as defined below). As used in this Section 37, "Alternative Transaction Consideration" shall mean all cash, securities, settlement or termination amounts, notes or other debt instruments, and other consideration received or to be received, directly or indirectly, received by the such Principal Stockholder and his his, her or its Affiliates (excluding officers and directors of the Company and excluding any Obligated Affiliate of Stockholder) in connection with or as a result of such Alternative Disposition or any agreements or arrangements (including including, without limitation limitation, any employment or consulting agreement (except (I) a bonafide bona fide employment agreement pursuant to which the such Principal Stockholder is required to devote, and under which such Principal Stockholder in good faith intends agrees to devote, substantially all of his his, her or its business time and effort to the performance of executive services for the Company in a manner substantially similar to Stockholder's the current employment arrangements with of the Company's executive officers and (II) an employment/consulting agreement providing monetary and other benefits with a value not in excess of that provided under any employment/consulting agreement entered into between the Principal Stockholder and the Buyer on the date hereof), consulting agreement, non-competition agreement, confidentiality agreement, settlement agreement or and/or release agreement) entered into, directly or indirectly, into by the such Principal Stockholder or his any of his, her or its Affiliates (excluding officers and directors of the Company and excluding any Affiliate of Stockholder which is a party to a Stockholder Agreement (an "Affiliate SA") of even date herewith with Parent, Sub and the Company in substantially the same form as this Agreement and which obligates such Affiliate to deliver to Parent any Profit recovered by such Affiliate as a stockholder of the Company (an "Obligated Affiliate")) as a part of or in connection with the Alternative Disposition or associated Acquisition Proposal, each of the foregoing less any taxes payable by the Principal Stockholder as a result of such Alternative Disposition. As used in this Agreement, "Current Transaction Consideration" shall mean the sum of (x) all amounts to be received, payable directly or indirectlyindirectly by the Buyer to the Principal Stockholder in respect of his, by Stockholder and his Affiliates (excluding officers and directors of the her or its Company and excluding any Obligated Affiliate of Stockholder) Shares pursuant to Article II I of the Merger Agreement (without giving effect to any conversion of any shares of Series B Preferred Stock listed in Part I of Schedule B hereto into shares of Class A Common Stock or any other shares of capital stock valued based on the closing price of the Company for or into which shares of Series B Preferred Buyer Common Shares on The NASDAQ Stock may be exchanged or converted), (y) all amounts, if any, to be received by Stockholder (including the amount of indebtedness owed by Stockholder forgiven) pursuant to the Termination Agreement (as in effect Market on the date hereof) and (z) all amounts, if any, to be received by Stockholder and his Affiliates (excluding officers and directors of the Company and excluding any Obligated Affiliate of Stockholder pursuant to and/or upon termination of any Affiliate Relationship or other agreement to which Stockholder or any Affiliate of Stockholder is a party and which is to be terminated pursuant to Section 4.06 of the Merger AgreementTriggering Termination).

Capture. (a) In the event that any of the Stockholder's Shares are sold, transferred, exchanged, canceled or disposed of in connection with or as a result of any Acquisition Proposal that is in existence on or that otherwise has been made prior to the first anniversary of the Termination Date (an "Alternative Disposition") ), then, within five business days after the closing of such Alternative Disposition, the Stockholder shall tender and pay to, or shall cause to be tendered and paid to, the ParentAcquiror, or its designee, in immediately available funds, 100% of the Profit realized from such Alternative Disposition. As used in this Section 3(a), "Profit" shall mean an amount equal to the excess, if any, of (i) the Alternative Transaction Consideration over (ii) the Current Transaction Consideration. As used in this Section 3, "Alternative Transaction Consideration" shall mean all cash, securities, settlement or termination amounts, notes or other debt instruments, and other consideration received or to be received, directly or indirectly, by the Stockholder and his Affiliates (excluding officers and directors of the Company and excluding any Obligated Affiliate of StockholderTarget) in connection with or as a result of such Alternative Disposition or any agreements or arrangements (including including, without limitation limitation, any employment agreement (except a bonafide bona fide employment agreement pursuant to which the Stockholder is required to devote, and under which Stockholder in good faith intends to devote, substantially all of his business time and effort to the performance of executive services for the Company Target in a manner substantially similar to Stockholder's current employment arrangements with the CompanyTarget), consulting agreement, non-competition agreement, confidentiality agreement, settlement agreement, loan (or loan forgiveness) agreement or release agreement) entered into, directly or indirectly, by the Stockholder or his Affiliates (excluding officers and directors of the Company and excluding any Affiliate of Stockholder which is a party to a Stockholder Agreement (an "Affiliate SA") of even date herewith with Parent, Sub and the Company in substantially the same form as this Agreement and which obligates such Affiliate to deliver to Parent any Profit recovered by such Affiliate as a stockholder of the Company (an "Obligated Affiliate")Target) as a part of or in connection with the Alternative Disposition or associated Acquisition Proposal. As used in this Agreement, "Current Transaction Consideration" shall mean the sum of (x) all amounts to be received, directly or indirectly, by Stockholder and his Affiliates (excluding officers and directors of the Company and excluding any Obligated Affiliate of StockholderTarget) pursuant to Article II of the Merger Agreement (without giving effect to any conversion of any shares of Series B Preferred Stock listed in Part I of Schedule B hereto into shares of Class A Common Stock or any other shares of capital stock of the Company for or into which shares of Series B Preferred Stock may be exchanged or converted), and (y) all amounts, if any, other amounts to be received by Stockholder (including the amount of indebtedness owed by Stockholder forgiven) Stockholder, directly or indirectly, pursuant to the Termination Offer or any of the other transactions or agreements contemplated by the Merger Agreement (as in effect on other than the date hereof) and (z) all amounts, if any, to be received employment agreements contemplated by Stockholder and his Affiliates (excluding officers and directors of the Company and excluding any Obligated Affiliate of Stockholder pursuant to and/or upon termination of any Affiliate Relationship or other agreement to which Stockholder or any Affiliate of Stockholder is a party and which is to be terminated pursuant to Section 4.06 of the Merger Agreement7.02 thereof).

Capture. (a) In the event that any of the Stockholder's Shares are sold, transferred, exchanged, canceled or disposed of in connection with or as a result of any Acquisition Proposal that is in existence on or that otherwise has been otherwise made prior to the first anniversary of the Termination Date (an "Alternative Disposition") then, within five business days after the closing of such Alternative Disposition, the Stockholder shall tender and pay to, or shall cause to be tendered and paid to, the Parent, or its designee, in immediately available funds, 100% of the Profit realized from such Alternative Disposition. As used in this Section 3(a), "Profit" Profit shall mean an amount equal to the excess, if any, of (i) the Alternative Transaction Consideration over (ii) the Current Transaction Consideration. As used in this Section 3, "Alternative Transaction Consideration" Consideration shall mean all cash, securities, settlement or termination amounts, notes or other debt instruments, and other consideration received or to be received, directly or indirectly, by the Stockholder and his Affiliates (excluding officers and directors of the Company and excluding any Obligated Affiliate of StockholderCompany) in connection with or as a result of such Alternative Disposition or any agreements or arrangements (including including, without limitation limitation, any employment agreement (except a bonafide employment agreement pursuant to which the Stockholder is required to devote, and under which Stockholder in good faith intends to devote, substantially all of his business time and effort to the performance of executive services for the Company in a manner substantially similar to Stockholder's current employment arrangements with the Company), consulting agreement, non-competition agreement, confidentiality agreement, settlement agreement or release agreement) entered into, directly or indirectly, by the Stockholder or his Affiliates (excluding officers and directors of the Company and excluding any Affiliate of Stockholder which is a party to a Stockholder Agreement (an "Affiliate SA") of even date herewith with Parent, Sub and the Company in substantially the same form as this Agreement and which obligates such Affiliate to deliver to Parent any Profit recovered by such Affiliate as a stockholder of the Company (an "Obligated Affiliate")Company) as a part of or in connection with the Alternative Disposition or associated Acquisition Proposal. As used in this Agreement, "Current Transaction Consideration" Consideration shall mean the sum of (x) all amounts to be received, directly or indirectly, by Stockholder and his Affiliates (excluding officers and directors of the Company and excluding any Obligated Affiliate of Stockholder) pursuant to Article II of the Merger Agreement (without giving effect to any conversion of any shares of Series B Preferred Stock listed in Part I of Schedule B hereto into shares of Class A Common Stock or any other shares of capital stock of the Company for or into which shares of Series B Preferred Stock may be exchanged or converted)Agreement, (y) all amounts, if any, amounts to be received by Stockholder (including the amount of indebtedness owed by Stockholder forgiven) pursuant to the Non-Compete and Termination Agreement (as each of such are in effect on the date hereof) and (z) any amounts and stock options to be received by Stockholder pursuant to Section 13.4 of the Amended and Restated Employment Agreement dated January 1, 1997 between the Company and the Stockholder, as supplemented by that certain letter agreement dated August 22, 1997. (b) For purposes of determining Profits under this Section 3 (i) all amountsnon-cash items shall be valued based upon the fair market value thereof as determined by an independent expert selected by Parent and who is reasonably acceptable to Stockholder, (ii) all deferred payments or consideration shall be discounted to reflect a market rate of net present value thereof as determined by the above-referenced independent expert, (iii) all contingent payments will be assumed to have been paid and (iv) if less than all of the Stockholder's Shares are subject to the Alternative Disposition or Second Transaction then the Current Transaction Consideration shall be deemed to be an amount equal to the Current Transaction Consideration multiplied by a fraction, the numerator of which is the number of the Stockholder's Shares sold, transferred, exchanged, canceled or disposed of in such Alternative Disposition or Second Transaction and the denominator of which is the total number of the Stockholder's Shares. In addition, in determining Profits, if the associated Acquisition Proposal or Second Transaction (x) involves a Spin Off (or securities or assets distributed in an alternative transaction to the Spin Off having substantially the same economic effect), then the securities distributed in connection with such Spin Off (or such an alternative transaction to the Spin Off), shall not be considered in calculating the Alternative Transaction Consideration or Second Transaction Consideration or (y) does not involve a Spin Off (or such an alternative transaction to the Spin Off) then in determining the Current Transaction Consideration the Class A Common Stock Merger Consideration and the Class B Common Stock Merger Consideration shall each be deemed to have been increased by an amount equal to $5.00. In the event any contingent payments included in the determination of Profits ultimately are not paid pursuant to an Alternative Disposition, then Parent shall reimburse Stockholder for any amounts paid to Parent hereunder in respect of such uncollected contingent payments promptly after receipt of written notice of such non payment. (c) Except for an increase made pursuant to Sections 5.09 and 5.13 of the Merger Agreement, in the event that after the date of this Agreement, the amount of either the Class A Common Stock Merger Consideration, Class B Common Stock Merger Consideration, Series B Merger Consideration, Series C Merger Consideration, Series D Merger Consideration or the consideration payable in respect of the Warrants, Unit Purchase Options, Options or SARs as currently provided for in the Merger Agreement should be increased (a "Second Transaction"), then, as may be requested by Parent, (i) Stockholder shall, and shall cause each of its Affiliates who Beneficially Own any of the Stockholder's Shares, to either execute and deliver to Parent such documents or instruments as may be necessary to waive the right to receive the amount of such increase to the extent that such increase results in any Profit or (ii) Stockholder shall tender and pay, or cause to be tendered and paid, to Parent, or its designee, in immediately available funds 100% of the Profit realized from such Second Transaction. As used in this Section 3(c), Profit shall mean an amount equal to the excess, if any, of (y) the Second Transaction Consideration over (z) the Current Transaction Consideration. As used in this Agreement, Second Transaction Consideration shall mean all cash, securities, settlement or termination amounts, notes or other debt instruments, and other consideration received or to be received received, directly or indirectly, by the Stockholder and his Affiliates (excluding officers and directors of the Company and excluding Company) in connection with or as a result of the Second Transaction or any Obligated Affiliate of Stockholder agreements or arrangements (including, without limitation, any employment agreement (except a bonafide employment agreement pursuant to and/or upon termination of any Affiliate Relationship or other agreement which the Stockholder is required to devote, and under which Stockholder in good faith intends to devote, substantially all of his business time and effort to the performance of executive services for the Company in a manner substantially similar to Stockholder's current employment arrangements with the Company), consulting agreement, non-competition agreement, confidentiality agreement, settlement agreement or any Affiliate of release agreement) entered into, directly or indirectly, by the Stockholder is a party or his Affiliates (excluding officers and which is to be terminated pursuant to Section 4.06 directors of the Merger AgreementCompany) with the Company as a part of or in connection with the Second Transaction.