Common use of Nonrefundable Payment Clause in Contracts

Nonrefundable Payment. (a) In consideration for Stockholder (i) agreeing to vote its shares and granting to JRCC the irrevocable proxy provided for in Paragraph 1 above; (ii) agreeing to tender its Shares as provided in Paragraph 2 above; and (iii) granting the Option provided for in Paragraph 4, JRCC shall pay to Stockholder $1,000,000 on the date hereof. Such amount shall, subject to Paragraphs 3(b) and (c) below, be nonrefundable, but shall be credited in full against the amount Stockholder would otherwise be entitled to receive upon conversion of its Shares in the Merger, pursuant to any Tender Offer or pursuant to the exercise of the Option provided in Paragraph 4 below. (b) If the Shares, on a fully diluted basis, do not represent a majority of the issued and outstanding shares of Company Common Stock on the date established for the purchase of the Shares by JRCC, whether in accordance with the Merger or upon exercise of the Option, the $1,000,000 to be paid by JRCC pursuant to Paragraph 3(a) above shall be fully refundable to JRCC. (c) If Stockholder's representations and warranties set forth in paragraph 10 are not true and correct, if Stockholder breaches any covenant or agreement set forth herein or if the Company is not exempt from Section 203 of the Delaware General Corporation Laws, the $1,000,000 to be paid by JRCC pursuant to Paragraph 3(a) above shall be fully refundable to JRCC.