Common use of Tender Agreement Clause in Contracts

Tender Agreement. As contemplated by the Memorandum of Understanding, SKR and the Selling Stockholders entered into the Tender Agreement in order to induce SKR to execute the Memorandum of Understanding and in consideration of the substantial expenses incurred and to be incurred by SKR and its affiliates in connection therewith. The Selling Stockholders agreed, subject to certain conditions, to tender or cause to be tendered to SKR pursuant to the Offer all of their Shares. Other than the purchase price to be paid to the Selling Stockholders upon any tender of their Shares to the Purchaser in accordance with the Offer, no consideration was paid or required to be paid to such Selling Stockholders by SKR or its affiliates in connection with the execution of the Tender Agreement. In addition, the Tender Agreement provides for a "purchase option" with respect to the Shares owned by the Selling Stockholders (the "Option") exercisable by SKR under certain circumstances. Pursuant to the terms of the Memorandum of Understanding and the Tender Agreement, SKR has assigned its rights therein, respectively, to the Purchaser. Upon (i) receipt of notice from the Selling Stockholders of a "Triggering Event," which is defined as the proposal by any person or group of persons of a Competing Transaction (as defined in the Tender Agreement) in which the consideration to be received by holders of Shares is in excess of $7.00 per share in cash and which is applicable to each Share outstanding (other than any Shares owned by the person or group of persons proposing such Competing Transaction or any of their respective affiliates), and (ii) the withdrawal by the Board of Directors of the Company of its recommendation or proposed recommendation to the shareholders of the Company that they tender their shares in the Offer, the Purchaser has the right, pursuant to the Tender Agreement, to purchase all of the Shares owned by the Selling Stockholders at a price determined as described below. The purchase price payable by the Purchaser upon exercise of the Option would be equal to the price per Share payable in the Competing Transaction giving rise to the Triggering Event; provided, however, in the event the price per share paid in the Offer or in such Competing Transaction is increased (i) after the Purchaser has given notice of its intent to exercise the Option, then the Purchaser would pay to the Selling Stockholders in cash at the closing an additional amount per share for the shares to be purchased pursuant to the Option equal to the difference between (x) the highest price per share paid or to be paid by the Purchaser in the Offer or in such Competing Transaction, as applicable, and (y) the per share purchase price previously anticipated to be paid by the Purchaser to the Selling Stockholders, or (ii) after the Purchaser has purchased the shares pursuant to the Option, then the Purchaser would promptly pay to the Selling Stockholders in cash an additional amount per share for the Shares so purchased equal to the difference between (x) the highest price per share paid by the Purchaser in the Offer or in any Competing Transaction, as applicable, and (y) the per share purchase price previously paid by the Purchaser to the Selling Stockholders.