Common use of Failure by Continuing Holder Clause in Contracts

Failure by Continuing Holder. If any Continuing Holder shall default in the performance of any of his or its obligations hereunder, including without limitation such Continuing Holder's failure or refusal to deliver or cause to be delivered to SII any of the Continuing Holder's shares of Company Common Stock required to be delivered to SII hereunder, or otherwise fail to meet any of SII's conditions to Closing set forth herein, or if this Agreement shall be terminated with respect to such Continuing Holder in accordance with the terms hereof, then such default or failure of condition or termination shall not relieve any of the other Continuing Holders of any obligation hereunder, and, to the extent such failure or refusal by a Continuing Holder results in a failure by the Continuing Holders to satisfy the Minimum Contribution Requirement, each of SII and the Investor Stockholder, at its sole option, and without prejudice to any rights against any such Continuing Holder with whom it does not complete the transactions contemplated hereby, may either complete the transactions contemplated hereby with the other Continuing Holders on the terms provided herein, or refuse, without liability, to consummate such transactions and thereby terminate all of its obligations hereunder; provided that if any Continuing Holder fails or refuses to comply with its obligations hereunder, or if this Agreement is otherwise terminated with respect to a Continuing Holder in accordance with its terms, but neither SII nor the Investor Stockholder elects (to the extent permitted by this Section 2.4) to terminate its obligations hereunder, then SII shall, in exchange for the purchase price therefor (which shall be equal to the additional consideration which is required to be paid pursuant to the Merger for the outstanding shares of Company Common Stock held by such Continuing Holder with whom SII does not complete the transactions contemplated hereby), issue to the Investor Stockholder at the Closing an additional number of shares of SII Common Stock as is equal to the number of shares of SII Common Stock that would have otherwise been issued to such Continuing Holder, and the Investor Stockholder shall purchase such additional shares of SII Common Stock for such purchase price at the Closing. 7 8 ARTICLE III COVENANTS AND AGREEMENTS OF SII AND INVESTOR STOCKHOLDER Section 3.1 Best Efforts. SII and the Investor Stockholder, severally and not jointly, agree with each Continuing Holder that SII and the Investor Stockholder will, (i) throughout the period prior to the Effective Time, exercise its reasonable best efforts to consummate the Merger, including without limitation voting shares of Company Common Stock which it owns, if any, and shares of Company Common Stock for which it has a proxy, if any, in favor of the Merger, or executing a written consent with respect thereto, and causing the conditions to the Company's obligation to consummate the Merger set forth in Section 8.3 of the Merger Agreement to be met and satisfied as quickly as reasonably possible, and (ii) throughout the period prior to the Closing, exercise its reasonable best efforts to cause the conditions to the Continuing Holders' obligations under this Agreement set forth in Section 8.2 hereof to be met and satisfied as quickly as reasonably possible; provided, however, that the provisions of this Section 3.1 shall not require SII or the Investor Stockholder to waive any closing conditions set forth in any agreements to which such Person is a party.

Failure by Continuing Holder. If any Continuing Holder shall default in the performance of any of his or its obligations hereunder, including without limitation such Continuing Holder's failure or refusal to deliver or cause to be delivered to SII any of the Continuing Holder's shares of Company Common Stock required to be delivered to SII hereunder, or otherwise fail to meet any of SII's conditions to Closing set forth herein, or if this Agreement shall be terminated with respect to such Continuing Holder in accordance with the terms hereof, then such default or failure of condition or termination shall not relieve any of the other Continuing Holders of any obligation hereunder, and, to the extent such failure or refusal by a Continuing Holder results in a failure by the Continuing Holders to satisfy the Minimum Contribution Requirement, each of SII and the Investor Stockholder, at its sole option, and without prejudice to any rights against any such Continuing Holder with whom it does not complete the transactions contemplated hereby, may either complete the transactions contemplated hereby with the other Continuing Holders on the terms provided herein, or refuse, without liability, to consummate such transactions and thereby terminate all of its obligations hereunder; provided that if any Continuing Holder fails or refuses to comply with its obligations hereunder, or if this Agreement is otherwise terminated with respect to a Continuing Holder in accordance with its terms, but neither SII nor the Investor Stockholder elects (to the extent permitted by this Section 2.4) to terminate its obligations hereunder, then SII shall, in exchange for the purchase price therefor (which shall be equal to the additional consideration which is required to be paid pursuant to the Merger for the outstanding shares of Company Common Stock held by such Continuing Holder with whom SII does not complete the transactions contemplated hereby), issue to the Investor Stockholder at the Closing an additional number of shares of SII Common Stock as is equal to the number of shares of SII Common Stock that would have otherwise been issued to such Continuing Holder, and the Investor Stockholder shall purchase such additional shares of SII Common Stock for such purchase price at the Closing. 7 8 ARTICLE III COVENANTS AND AGREEMENTS OF SII AND INVESTOR STOCKHOLDER Section 3.1 Best Efforts. SII and the Investor Stockholder, severally and not jointly, agree with each Continuing Holder that SII and the Investor Stockholder will, (i) throughout the period prior to the Effective Time, exercise its reasonable best efforts to consummate the Merger, including without limitation voting shares of Company Common Stock which it owns, if any, and shares of Company Common Stock for which it has a proxy, if any, in favor of the Merger, or executing a written consent with respect thereto, and causing the conditions to the Company's obligation to consummate the Merger set forth in Section 8.3 of the Merger Agreement to be met and satisfied as quickly as reasonably possible, and (ii) throughout the period prior to the Closing, exercise its reasonable best efforts to cause the conditions to the Continuing Holders' obligations under this Agreement set forth in Section 8.2 hereof to be met and satisfied as quickly as reasonably possible; provided, however, that the provisions of this Section 3.1 shall not require SII or the Investor Stockholder to waive any closing conditions set forth in any agreements to which such Person is a party.