Common use of Application of Tag-Along Clause in Contracts

Application of Tag-Along. (i) This Section 3.2 shall not apply to any Transfer of Equity Securities in a Drag-Along Transaction for which the Transferring Seller shall have elected to exercise its rights under Section 3.3 or an Exit Sale for which Pinnacle shall have elected to exercise its rights under Section 3.4 (except to the extent expressly provided otherwise in Section 3.4) or to a Transfer described in Section 3.1(a) hereof or in Section 3.1(c)(vi) hereof. (ii) Notwithstanding anything to the contrary in this Section 3.2, in the event that (A) any party hereto enters into or executes a Transfer constituting a pledge of Securities or other grant of a lien or security interest therein, directly or indirectly, or (B) there is a further Transfer of the Securities so pledged or subjected to such lien or security interest pursuant to a foreclosure on such pledge, lien or security interest, or a Transfer in lieu of foreclosure (any such further Transfer pursuant to a pledge, lien or security interest, a “Subsequent Transfer”), this Section 3.2 (other than Section 3.2(f)(ii)) shall not apply to any such Transfer or Subsequent Transfer. For purposes of clarity, the transferee in any Subsequent Transfer shall comply with Section 3.1(d)(ii) and be and become bound by the provisions of this Agreement, including without limitation this Section 3.2. (iii) With respect to warrants, options, stock appreciation rights or similar rights with an exercise privilege or a settlement payment or mechanism at a price related to any class or series of Securities or with a value derived in whole or in part from the value of any series or class of Securities, which warrants, options, stock appreciation rights or similar rights do not contain any preferences, rights or obligations, other than the right to acquire, settle at a price related to or with a value derived in whole or in part from the value of, such underlying Securities (a “Derivative Instrument”), such Derivative Instruments shall be included within the definition of Tag-Along Securities for purposes of this Section 3.2. As a result of the foregoing sentence, in the event that the Transferring Seller seeks to Transfer Derivative Instruments pursuant to this Section 3.2, the Tag Along Party shall have the right to participate in such Transfer of Derivative Instruments by Transferring to the Third Party Offeror the number or amount of Derivative Instruments and/or Securities underlying such Derivative Instruments as calculated under Section 3.2(b)(i) or 3.2(b)(iii), as applicable; provided, that for purposes of that calculation, Securities underlying such Derivative Instruments and such Derivative Instruments shall be treated as equivalent Tag Along Securities. The consideration to be received by the Tag Along Party in this context shall be the same form and amount of consideration (as adjusted, as necessary, to account for the lack of an exercise price associated with the Securities underlying such Derivative Instruments being Transferred and to account for the value per unit of the Securities underlying such Derivative Instrument where such Derivative Instrument is exercisable for or relates to more than one unit of the Securities underlying such Derivative Instrument) per Tag Along Security to be received by the Transferring Seller, and the terms and conditions of the Tag Along Sale shall be the same as those upon which the Transferring Seller sells its Tag-Along Securities.

Application of Tag-Along. (i) This Section 3.2 shall not apply to any Transfer of Equity Securities in a Drag-Along Transaction for which the Transferring Seller shall have elected to exercise its rights under Section 3.3 or an Exit Sale for which Pinnacle shall have elected to exercise its rights under Section 3.4 (except to the extent expressly provided otherwise in Section 3.4) or to a Transfer described in Section 3.1(a) hereof or in Section 3.1(c)(vi) hereof. (ii) Notwithstanding anything to the contrary in this Section 3.2, in the event that (A) any party hereto enters into or executes a Transfer constituting a pledge of Securities or other grant of a lien or security interest therein, directly or indirectly, or (B) there is a further Transfer of the Securities so pledged or subjected to such lien or security interest pursuant to a foreclosure on such pledge, lien or security interest, or a Transfer in lieu of foreclosure (any such further Transfer pursuant to a pledge, lien or security interest, a “Subsequent Transfer”), this Section 3.2 (other than Section 3.2(f)(ii)) shall not apply to any such Transfer or Subsequent Transfer. For purposes of clarity, the transferee in any Subsequent Transfer shall comply with Section 3.1(d)(ii) and be and become bound by the provisions of this Agreement, including without limitation this Section 3.2. (iii) With respect to warrants, options, stock appreciation rights or similar rights with an exercise privilege or a settlement payment or mechanism at a price related to any class or series of Securities or with a value derived in whole or in part from the value of any series or class of Securities, which warrants, options, stock appreciation rights or similar rights do not contain any preferences, rights or obligations, other than the right to acquire, settle at a price related to or with a value derived in whole or in part from the value of, such underlying Securities (a “Derivative Instrument”), such Derivative Instruments shall be included within the definition of Tag-Along Securities for purposes of this Section 3.2. As a result of the foregoing sentence, in the event that the Transferring Seller seeks to Transfer Derivative Instruments pursuant to this Section 3.2, the Tag Along Party shall have the right to participate in such Transfer of Derivative Instruments by Transferring to the Third Party Offeror the number or amount of Derivative Instruments and/or Securities underlying such Derivative Instruments as calculated under Section 3.2(b)(i) or 3.2(b)(iii), as applicable; provided, that for purposes of that calculation, Securities underlying such Derivative Instruments and such Derivative Instruments shall be treated as equivalent Tag Along Securities. The consideration to be received by the Tag Along Party in this context shall be the same form and amount of consideration (as adjusted, as necessary, to account for the lack of an exercise price associated with the Securities underlying such Derivative Instruments being Transferred and to account for the value per unit of the Securities underlying such Derivative Instrument where such Derivative Instrument is exercisable for or relates to more than one unit of the Securities underlying such Derivative Instrument) per Tag Along Security to be received by the Transferring Seller, and the terms and conditions of the Tag Along Sale shall be the same as those upon which the Transferring Seller sells its Tag-Along Securities. (iv) For purposes of this Section 3.2, Common Shares and Class VII Non-Voting Shares shall be deemed equivalent and treated as the same series or class of Securities when determining the Tag-Along Security provided that (A)(1) if a Transferring Seller proposes to Transfer Common Shares or Class VII Non-Voting Shares in the relevant Tag-Along Sale, the Tag-Along Party’s right to participate in such Tag-Along Sale shall first apply to the precise class of shares which the Transferring Seller proposes to Transfer (either Common Shares or Class VII Non-Voting Shares), to the extent held by such Tag-Along Party and (2) only once such Tag-Along Party has included all shares it holds, if any, of such precise class of shares in such Tag-Along Sale, shall the Tag-Along Party be permitted to include shares of such other deemed equivalent class of shares in such Tag-Along Sale, (B) if the Transferring Seller proposes to Transfer both Common Shares and Class VII Non-Voting Shares in the relevant Tag-Along Sale, the Tag-Along Party, if it chooses to participate in such Tag-Along Sale, shall include in such sale Common Shares and Class VII Non-Voting Shares in the closest proportion (in relation to each other) as possible to the proportion of Common Shares and Class VII Non-Voting Shares (in relation to each other) being Transferred by the Transferring Seller and, to the extent that such Tag Along Party does not hold enough shares of a particular precise class to meet such proportion, may include shares of the other deemed equivalent class of shares in such Tag-Along Sale and (C) for purposes of this Section 3.2, all classes of Company Debt having the same seniority shall be treated as the same series or class of Securities when determining the Tag-Along Security.

Application of Tag-Along. (i) This Section 3.2 shall not apply to any Transfer of Equity Securities in a Drag-Along Transaction for which the Transferring Seller shall have elected to exercise its rights under Section 3.3 or an Exit Sale for which Pinnacle shall have elected to exercise its rights under Section 3.4 (except to the extent expressly provided otherwise in Section 3.4) or to a Transfer described in Section 3.1(a) hereof or in Section 3.1(c)(vi) hereof. (ii) Notwithstanding anything to the contrary in this Section 3.2, in the event that (A) any party hereto enters into or executes a Transfer constituting a pledge of Securities or other grant of a lien or security interest therein, directly or indirectly, or (B) there is a further Transfer of the Securities so pledged or subjected to such lien or security interest pursuant to a foreclosure on such pledge, lien or security interest, or a Transfer in lieu of foreclosure (any such further Transfer pursuant to a pledge, lien or security interest, a “Subsequent Transfer”), this Section 3.2 (other than Section 3.2(f)(ii)) shall not apply to any such Transfer or Subsequent Transfer. For purposes of clarity, the transferee in any Subsequent Transfer shall comply with Section 3.1(d)(ii) and be and become bound by the provisions of this Agreement, including without limitation this Section 3.2. (iii) With respect to warrants, options, stock appreciation rights or similar rights with an exercise privilege or a settlement payment or mechanism at a price related to any class or series of Securities or with a value derived in whole or in part from the value of any series or class of Securities, which warrants, options, stock appreciation rights or similar rights do not contain any preferences, rights or obligations, other than the right to acquire, settle at a price related to or with a value derived in whole or in part from the value of, such underlying Securities (a “Derivative Instrument”), such Derivative Instruments shall be included within the definition of Tag-Along Securities for purposes of this Section 3.2. As a result of the foregoing sentence, in the event that the Transferring Seller seeks to Transfer Derivative Instruments pursuant to this Section 3.2, the Tag Along Party shall have the right to participate in such Transfer of Derivative Instruments by Transferring to the Third Party Offeror the number or amount of Derivative Instruments and/or Securities underlying such Derivative Instruments as calculated under Section 3.2(b)(i) or 3.2(b)(iii), as applicable; provided, that for purposes of that calculation, Securities underlying such Derivative Instruments and such Derivative Instruments shall be treated as equivalent Tag Along Securities. The consideration to be received by the Tag Along Party in this context shall be the same form and amount of consideration (as adjusted, as necessary, to account for the lack of an exercise price associated with the Securities underlying such Derivative Instruments being Transferred and to account for the value per unit of the Securities underlying such Derivative Instrument where such Derivative Instrument is exercisable for or relates to more than one unit of the Securities underlying such Derivative Instrument) per Tag Along Security to be received by the Transferring Seller, and the terms and conditions of the Tag Along Sale shall be the same as those upon which the Transferring Seller sells its Tag-Along Securities.

Application of Tag-Along. (i) This Section 3.2 shall not apply to any Transfer of Equity Securities in a Drag-Along Transaction for which the Transferring Seller shall have elected to exercise its rights under Section 3.3 or an Exit Sale for which Pinnacle shall have elected to exercise its rights under Section 3.4 (except to the extent expressly provided otherwise in Section 3.4) or to a Transfer described in Section 3.1(a) hereof or in Section 3.1(c)(vi) hereof. (ii) Notwithstanding anything to the contrary in this Section 3.2, in the event that (A) any party hereto enters into or executes a Transfer constituting a pledge of Securities or other grant of a lien or security interest therein, directly or indirectly, or (B) there is a further Transfer of the Securities so pledged or subjected to such lien or security interest pursuant to a foreclosure on such pledge, lien or security interest, or a Transfer in lieu of foreclosure (any such further Transfer pursuant to a pledge, lien or security interest, a “Subsequent Transfer”), this Section 3.2 (other than Section 3.2(f)(ii)) shall not apply to any such Transfer or Subsequent Transfer. For purposes of clarity, the transferee in any Subsequent Transfer shall comply with Section 3.1(d)(ii) and be and become bound by the provisions of this Agreement, including without limitation this Section 3.2. (iii) With respect to warrants, options, stock appreciation rights or similar rights with an exercise privilege or a settlement payment or mechanism at a price related to any class or series of Securities or with a value derived in whole or in part from the value of any series or class of Securities, which warrants, options, stock appreciation rights or similar rights do not contain any preferences, rights or obligations, other than the right to acquire, settle at a price related to or with a value derived in whole or in part from the value of, such underlying Securities (a “Derivative Instrument”), such Derivative Instruments shall be included within the definition of Tag-Along Securities for purposes of this Section 3.2. As a result of the foregoing sentence, in the event that the Transferring Seller seeks to Transfer Derivative Instruments pursuant to this Section 3.2, the Tag Along Party shall have the right to participate in such Transfer of Derivative Instruments by Transferring to the Third Party Offeror the number or amount of Derivative Instruments and/or Securities underlying such Derivative Instruments as calculated under Section 3.2(b)(i) or 3.2(b)(iii), as applicable; provided, that for purposes of that calculation, Securities underlying such Derivative Instruments and such Derivative Instruments shall be treated as equivalent Tag Along Securities. The consideration to be received by the Tag Along Party in this context shall be the same form and amount of consideration (as adjusted, as necessary, to account for the lack of an exercise price associated with the Securities underlying such Derivative Instruments being Transferred and to account for the value per unit of the Securities underlying such Derivative Instrument where such Derivative Instrument is exercisable for or relates to more than one unit of the Securities underlying such Derivative Instrument) per Tag Along Security to be received by the Transferring Seller, and the terms and conditions of the Tag Along Sale shall be the same as those upon which the Transferring Seller sells its Tag-Along Securities. (iv) For purposes of this Section 3.2, all classes of Company Debt having the same seniority shall be treated as the same series or class of Securities when determining the Tag-Along Security.